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Ceron v. Holder to be Reheard En Banc: CA9

September 20, 2013 (1 min read)

"Upon the vote of a majority of nonrecused active judges, it is ordered that this case [*] be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." - Ceron v. Holder, Sept. 19, 2013.

712 F.3d 426 (2013) 

* [Court staff summary, Apr. 2, 2013: "The panel denied Ruben Adolfo Ceron’s petition for review of the Board of Immigration Appeals’ decision finding that his conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1), constituted a crime involving moral turpitude (“CIMT”) for which a sentence of at least one year’s imprisonment could have been imposed.  The panel held that this court’s holding in Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), aff’d on other grounds, 347 U.S. 637 (1954), that an earlier but substantially similar version of CPC § 245 is a categorical CIMT, remains good law. The panel also held that Ceron’s conviction is a felony, because although the offense is a wobbler, the minute order designated it as a felony and CPC § 17(b) did not apply to automatically convert it into a misdemeanor since the state court suspended imposition of sentence and ordered probation instead.  Dissenting, Judge Ikuta would hold that the majority lacks authority not to follow the en banc opinion in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), and multiple rulings by this court, which established that assault with a deadly weapon is not a CIMT. Judge Ikuta wrote that the majority erred in holding that statements in a prior opinion are not binding if the majority decides that the statements relate to an issue that was not presented for review. Judge Ikuta also wrote that the majority further erred in holding that this court can ignore or overrule a statement in an en banc opinion if it relies on precedent that is not directly on point."]