                                                                           FILED
                                                                            NOV 23 2009
                            NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



JOSE RAMON GALVEZ-MARTINEZ;                      No. 04-73709
MARIA DE JESUS CASTANEDA DE
     GALVEZ; and                                 Agency Nos. A076-611-167
ALMA DELIA GALVEZ-CASTANEDA,                                 A072-309-648
                                                             A072-309-649
             Petitioners,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted October 7, 2009
                              Pasadena, California

Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.

       Petitioners Jose Ramon Galvez-Martinez, his wife Maria de Jesus Castaneda

de Galvez, and daughter Alma Galvez-Castaneda petition for review of separate



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decisions of the Board of Immigration Appeals.1 For the reasons discussed below,

we grant the petition in part with respect to Jose and remand to the BIA for further

consideration of his eligibility for cancellation of removal. We deny the petition in

part with respect to the imputation of Jose’s physical presence in the United States

to Alma and the challenge to the applicability of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA) to Maria and Alma. With

respect to the BIA’s reduction of the period of voluntary departure granted to

Maria and Alma, we grant the petition in part and remand Maria and Alma’s cases

to the BIA to consider whether its In re A-M- policy should apply to these

petitioners retroactively.

I.    Statutory bars to Jose’s eligibility for cancellation of removal

      Without admitting to error below, the Government concedes that Jose’s case

should be remanded to the BIA. We agree because a determination of “good moral

character” is not precluded here on either an “aggravated felony” or “crime

involving moral turpitude” ground.

      “Aggravated felony” includes “a crime of violence . . . for which the term of

imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Jose was


      1
        This Memorandum refers to petitioners individually by their first names for
the sake of brevity and clarity, because different combinations of family names are
shared between them.

                                          2
sentenced to only 19 days in custody for his violation of California Penal Code

§ 273.5(a). Thus, his conviction does not meet the condition of § 1101(a)(43)(F)

that “the term of imprisonment [is] at least one year.” Cf. Alberto-Gonzalez v.

I.N.S., 215 F.3d 906, 910 (9th Cir. 2000) (holding that “Congress intended the

phrase ‘for which the term of imprisonment [is] one year or more’ . . . to refer to

the actual sentence imposed by the trial judge”).

      Neither does Jose’s conviction preclude a finding of good moral character

because of the “crime involving moral turpitude” bar. Although a violation of

California Penal Code § 273.5 for abuse of a spouse ordinarily qualifies as a

“crime involving moral turpitude,” see Grageda v. U.S. I.N.S., 12 F.3d 919, 922

(9th Cir. 1993), Jose’s conviction falls within the “petty offense” exception at 8

U.S.C. § 1182(a)(2)(A)(ii). The declaration by the California court that Jose’s

conviction is a misdemeanor qualifies it as a “petty offense” as a matter of law.

Garcia-Lopez v. Ashcroft, 334 F.3d 840, 845-46 (9th Cir. 2003) (“[I]t is clear that a

state court’s designation of a criminal offense is binding on the BIA . . . .”).

      Jose’s offense thus does not bar a finding of good moral character for the

purposes of cancellation of removal. We grant his petition on this issue and remand

his case to the BIA.




                                            3
II.    Imputing Jose’s physical presence in the United States to Alma

       Petitioners’ argument that Jose’s longer physical presence in the United

States should be imputed to his daughter Alma so that she might satisfy the 10-year

statutory presence requirement of 8 U.S.C. § 1229b(b)(1)(A) is foreclosed by this

Court’s decision in Barrios v. Holder, 581 F.3d 849 (9th Cir. 2009). Although

Barrios did not interpret the specific statutory section that is now before us, the

“physical presence” requirement analyzed in Barrios is indistinguishable from

§ 1229b(b)(1)(A)’s requirement that an alien “has been physically present in the

United States for a continuous period of not less than 10 years.” 8 U.S.C.

§ 1229b(b)(1)(A). We decline, therefore, to impute Jose’s physical presence in the

United States to Alma. The BIA correctly found that Alma lacked the 10 years of

physical presence necessary to qualify for cancellation of removal.

III.   Application of IIRIRA’s repeal of suspension of deportation to Maria
       and Alma

       Maria and Alma’s placement in cancellation of removal proceedings, rather

than suspension of deportation proceedings, does not amount to an impermissibly

retroactive application of IIRIRA under I.N.S. v. St. Cyr, 533 U.S. 289 (2001). Our

decision in Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir. 2002), controls the

outcome here. Maria and Alma’s expectations about when the INS might initiate



                                           4
deportation proceedings were no more settled than were petitioners’ expectations

in Jimenez-Angeles. When Maria and Alma presented themselves to the INS, they

lacked the seven years of presence in the country required by the pre-IIRIRA

suspension of deportation statute. This case is, therefore, unlike Hernandez de

Anderson v. Gonzales, 497 F.3d 927 (9th Cir. 2007), where the petitioner qualified

for relief before she revealed herself to the authorities. Id. at 943-44. Petitioners

here, on the other hand, are like the petitioner in Jimenez-Angeles: they “gave up

only [their] ability to continue living illegally and undetected in the United States”

when they revealed themselves to the INS. Jimenez-Angeles, 291 F.3d at 602.

IV.   The voluntary departure period for Maria and Alma

      We remand Maria and Alma’s cases to the BIA so that the agency can

determine, in the first instance, whether a change in its policy regarding Board

reductions of voluntary departure periods should apply to Maria and Alma

retroactively. Because Maria and Alma’s cases were on appeal to this Court when

the BIA changed its policy in In re A-M-, 23 I. & N. Dec. 737 (BIA 2005), the

Supreme Court’s decision in NLRB v. Food Store Employees Union, Local 347,

417 U.S. 1 (1974), requires that their cases be remanded to the BIA to “permit the

agency to decide in the first instance whether giving the [voluntary departure




                                            5
policy] change retrospective effect will best effectuate the policies underlying the

agency’s governing act.” Id. at 10 n.10.

      GRANTED in part with respect to Jose’s eligibility for cancellation of

removal and Maria and Alma’s period for voluntary departure; DENIED in

part otherwise; and REMANDED for further proceedings.




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