                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 12 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



MARIA TERESITA AGUIRRE-                          No. 05-76843
SALAZAR,
                                                 Agency No. A096-494-186
              Petitioner,

  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 April 16, 2010
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**

       Maria Teresita Aguirre-Salazar, a native and citizen of Mexico, petitions for

review of a decision of the Board of Immigration Appeals ('BIA'). The BIA

found Aguirre-Salazar ineligible for cancellation of removal on account of her

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
conviction for welfare fraud under California Welfare and Institutions Code

y 10980(c)(2). On appeal, Aguirre-Salazar argues for application of the petty

offense exception at 8 U.S.C. y 1182(a)(2)(A)(ii). We review legal determinations

regarding an alien's eligibility for cancellation of removal de novo. Sandoval-Lua

v. Gonzales, 499 F.3d 1121, 1126 (9th Cir. 2007).

      The petty offense exception is available to Aguirre-Salazar only if her

'wobbler' welfare fraud conviction is classified as a misdemeanor, rather than a

felony, under California law. See 8 U.S.C. y 1182(a)(2)(A)(ii)(II) (excusing only

those crimes where the 'maximum penalty possible . . . did not exceed

imprisonment for one year'); Cal. Wel. & Inst. Code y 10980(c)(2) (providing, in

the case of a felony, for a maximum penalty of three years' imprisonment). We

defer to California's classification of wobbler offenses as felonies or

misdemeanors. Garcia-Lopez v. Ashcroft, 334 F.3d 840, 845 (9th Cir. 2003).

      An immigrant may show that state law operates to classify the offense as a

misdemeanor if (1) the state court issues a 'judgment imposing a punishment other

than imprisonment in the state prison' as described in California Penal Code

y 17(b)(1); or (2) 'the court declares the offense to be a misdemeanor' as described

in California Penal Code y 17(b)(3). Garcia-Lopez, 334 F.3d at 844-46. A state

court has not issued a 'judgment' as contemplated by y 17(b)(1) when it suspends


                                           2
the imposition of a sentence and instead orders probation, even if serving time in

the county jail is one of the conditions of probation. United States v. Diaz-

Argueta, 564 F.3d 1047 (9th Cir. 2006); Garcia-Lopez, 344 F.3d at 844-45. The

presumption under California law is that a wobbler is a felony until a court actually

exercises discretion to convert the offense into a misdemeanor. Diaz-Argueta, 564

F.3d at 1049.

        The minute order in Aguirre-Salazar's record maµes clear that the state court

suspended Aguirre-Salazar's sentence on November 30, 2004. Aguirre-Salazar

therefore cannot resort to California Penal Code y 17(b)(1) to show that her

conviction was converted to a misdemeanor when the court ordered probation and

120 days in the county jail on the same date. Additionally, the record does not

reflect any subsequent developments in Aguirre-Salazar's criminal case that would

indicate that the state courts later acted to convert the offense into a misdemeanor.

Aguirre-Salazar's offense is therefore a felony under the presumption that a

wobbler is a felony until otherwise converted. See Diaz-Argueta, 564 F.3d at

1049.

        Aguirre-Salazar argues that our decision in Ferreira v. Ashcroft, 382 F.3d

1045 (9th Cir. 2004), compels the opposite result. We disagree. Ferreira is

consistent with the above cited cases in recognizing that under California Penal


                                           3
Code y 17(b)(1), a crime converts to a misdemeanor if a state court imposes a

judgment other than imprisonment in the state prison. See 382 F.3d at 1051.

Ferreira differs from the present case in that in Ferreira the sentence was not

suspended. See id. at 1051. Ferreira concluded that because the state had, five

years earlier, 'sentenced' the petitioner 'to four months in the county jail and three

years' probation,' a misdemeanor judgment had been imposed. Id. at 1048. In this

case, however, the record is clear that at the time of Aguirre-Salazar's immigration

hearing in 2005, the state court had suspended Aguirre-Salazar's sentence in 2004,

and the conviction was never converted to a misdemeanor.

      The petition for review is DENIED.




                                          4
                                                  FILED
Aguirre-Salazar v. Holder, Case No. 05-76843       AUG 12 2010
Rawlinson, Circuit Judge, concurring:          MOLLY C. DWYER, CLERK
                                                U.S . CO UR T OF AP PE A LS

      I concur in the result.
