Opinion
No. 19-70721
04-01-2021
NORBERTO MORAZA RUIZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A044-127-109 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 4, 2021 Pasadena, California Before: SILER, HURWITZ, and COLLINS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Petitioner seeks review of a decision of the Board of Immigration Appeals (BIA) dismissing an appeal from an order of removability entered by an Immigration Judge. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition.
Petitioner claims he was not "convicted" of two crimes involving moral turpitude so as to allow his removal under 8 U.S.C. § 1227(a)(2)(A)(ii). Because the sentence on one of the state-law violations forming the basis for his removal was stayed and unspecified, Petitioner asserts that violation cannot constitute a "conviction" under 8 U.S.C. § 1101(a)(48). See Retuta v. Holder, 591 F.3d 1181, 1182-83 (9th Cir. 2010) (looking to the definition of "conviction" in § 1101(a)(48) to determine whether alien was "convicted" of crime under § 1227(a)(2)(B)(i)). Under § 1101(a)(48), a "conviction" includes dispositions in which a formal judgment of guilt has been withheld provided that (i) there has been a finding of guilt or admission of sufficient facts for a finding of guilt, and (ii) "some form of punishment, penalty, or restraint on the alien's liberty" has been imposed. 8 U.S.C. § 1101(a)(48)(A). Although a stayed term of incarceration satisfies § 1101(a)(48)(A)(ii), see Retuta, 591 F.3d at 1186, the record is unclear as to whether Petitioner was sentenced to any incarceration for his violation of California Penal Code § 422(a). Petitioner's criminal records indicate that any sentence imposed for that violation was stayed pursuant to California Penal Code § 654 and not made conditional on compliance with another order from the state trial court, and there is no indication that any such stayed sentence was for a term of incarceration. See Retuta, 591 F.3d at 1188 ("Our reading of § 1101(a)(48) leads us to conclude that the definition of 'conviction' does not include criminal judgments whose only consequence is a suspended non-incarceratory sanction.") (emphasis added)). We therefore agree with Petitioner that he was not "convicted" for purposes of 8 U.S.C. § 1227(a)(2)(A)(ii) on the § 422(a) count.
We reject the government's contention that an incarceratory sentence imposed on another count is imputed pursuant to § 654(a) to the remaining counts for which the sentences have been stayed. See, e.g., People v. Alford, 103 Cal. Rptr. 3d 898, 900, 905 (Cal. App. 2010); Atanda v. Holder, 466 F. App'x 622, 624 (9th Cir. 2012). Because we cannot assume that the state trial court sentenced Petitioner to a term of incarceration, stayed or not, the government has not met its "burden [to] establish[] by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable." 8 U.S.C. § 1229a(c)(3)(A).
Ruiz's counsel conceded below that § 422(a) is a "crime involving moral turpitude." But, conceding that a certain statutory violation constitutes a "crime involving moral turpitude" is different from conceding that Ruiz was "convicted" of that statutory violation under 8 U.S.C. § 1227(a)(2)(A)(ii).
PETITION GRANTED; REMANDED to the BIA. Petitioner's motion for judicial notice, DKT. 16, is DENIED.