FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EDUARDO VELASQUEZ-RIOS, No. 18-72990 Petitioner, Agency No. v. A200-154-815 WILLIAM P. BARR, Attorney General, Respondent. SANJAY JOSEPH DESAI, AKA Sanjay No. 18-73218 Joseph Andrews, AKA Joao Sergio Karamano Soverano, Agency No. Petitioner, A096-656-434 v. OPINION WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 4, 2020 Pasadena, California Filed October 28, 2020 2 VELASQUEZ-RIOS V. BARR Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and David A. Ezra, * District Judge. Opinion by Judge Gould SUMMARY ** Immigration The panel denied separate petitions for review filed by Eduardo Velasquez-Rios and Sanjay Joseph Desai of decisions of the Board of Immigration Appeals, and held that an amendment to § 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under 8 U.S.C. § 1227(a)(2)(A)(i). Velasquez-Rios and Desai were both found ineligible for cancellation of removal because they had been convicted of offenses under § 1227(a)(2)(A)(i), which—as relevant here—makes an alien removable if he or she committed a crime involving moral turpitude for which a sentence of one year or longer may be imposed. Subsequently, on January 1, 2015, the California legislature enacted § 18.5, which reduced the maximum jail sentences for misdemeanor convictions to 364 days, and on January 1, 2017, the legislature amended § 18.5 to apply retroactively. * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VELASQUEZ-RIOS V. BARR 3 In Matter of Velasquez-Rios, 27 I. & N. Dec. 470 (BIA 2018), the BIA held that, for purposes of § 1227(a)(2)(A)(i), the maximum sentence available is determined by looking at the date of conviction. The BIA thus denied Velasquez- Rios’ appeal because he could have been sentenced to up to one year of imprisonment when he was convicted, and the BIA later denied Desai’s appeal for the same reason. Petitioners challenged Matter of Velasquez-Rios in this court, contending that the amendment to § 18.5 should apply to their cases retroactively such that they would be eligible for cancellation. In holding that the amendment to § 18.5 cannot be applied retroactively for purposes of § 1227(a)(2)(A)(i), the panel rejected Petitioners’ contention that the BIA erred by relying on two sentencing decisions: McNeill v. United States, 563 U.S. 816 (2011), and United States v. Diaz, 838 F.3d 968 (9th Cir. 2016). In McNeil, the Supreme Court held that retroactive changes to North Carolina’s state-law sentencing scheme did not change the historical fact that the defendant had been convicted of two felonies. In Diaz, this court concluded that California’s reclassification of Diaz’s two felony convictions as misdemeanors did not invalidate his enhanced sentence under 21 U.S.C. § ...
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