Opinion
No. 04-74953.
The panel unanimously finds this case suitable for decision without oral argument pursuant to Federal Rule of Appellate Procedure 34(a)(2).
Filed January 10, 2011.
David B. Landry, Esq., Law Office of David B. Landry, San Diego, CA, for Petitioner.
Ronald E. LeFevre, Chief Counsel, District Director, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, John R. Cunningham, Esq., OIL, DOJ — U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review from The Board of Immigration Appeals. Agency No. A031-083-650.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Petitioner Jorge Ramirez-Martinez seeks review of a Board of Immigration Appeals ("BIA") decision reversing an Immigration Judge's ("IJ") decision that petitioner was eligible for and deserving of a waiver of deportation under former § 212(c) of the Immigration and Nationality Act ("INA") for a 1988 attempted murder conviction. We grant the petition and remand for further proceedings.
The BIA ordered petitioner removed as an aggravated felon under 8 U.S.C. § 1101(a)(43) based on his November 2, 1988 conviction for attempted murder. In Ledezma-Galicia v. Holder, 636 F.3d 1059, 2010 WL 5174979 (9th Cir. 2010), we held that "the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and . . . neither Congress's overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation." Id. 1062, at *2. In light of Ledezma-Galicia, petitioner's November 2, 1988 attempted murder conviction does not, alone, make him removable under § 1101(a)(43). Because the BIA considered petitioner's removability only for his 1988 conviction, we remand to the BIA to determine in the first instance whether Ramirez is eligible for removal on the basis of something other than the 1988 conviction, and, if so, whether he qualifies for relief.
GRANTED AND REMANDED.
I concur in the judgment of the court because it is governed by our decision in Ledezma-Galicia v. Holder, 636 F.3d 1059, 2010 WL 5174979 (9th Cir. 2010). Nevertheless, for the reasons I explained in my dissent to that opinion, I continue to believe that the court is wrong.
This case surely confirms my judgment. In Ledezma-Galicia, the court held that Ledezma — who had been convicted of sodomy for sexually molesting a minor — cannot be removed because the removal statute "does not apply to convictions, like Ledezma-Galicia's, that occurred prior to November 18, 1988." 636 F.3d at 1080, 2010 WL 5174979 at *20. As I pointed out, "the majority admitt[ed] that this creates `a small puncture in a broad shield' because aliens are deportable for any number of offenses committed prior to 1988." Id. (Bybee, J., dissenting). Today we hold that Congress intended this "small puncture" in the shield to extend to aliens such as Ramirez-Martinez, who was convicted of attempted murder on November 2, 1988. As Justice Jackson once remarked, quoting Mark Twain: "The more you explain it, the more I don't understand it." SEC v. Chenery Corp., 332 U.S. 194, 214, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (Jackson, J., dissenting). I reluctantly concur.