Jose Ramon Galvez-Martinez v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE RAMON GALVEZ-MARTINEZ;
MARIA DE JESUS CASTANEDA DE
GALVEZ; and
ALMA DELIA GALVEZ-CASTANEDA,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 04-73709
Agency Nos. A076-611-167
A072-309-648
A072-309-649
MEMORANDUM *
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
FILED
NOV 23 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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This Memorandum refers to petitioners individually by their first names for1
the sake of brevity and clarity, because different combinations of family names are
shared between them.
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decisions of the Board of Immigration Appeals. For the reasons discussed below,1
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

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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.

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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

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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

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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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