                                                                            FILED
                              NOT FOR PUBLICATION                            JAN 19 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U.S . CO U RT OF AP PE A LS




                             FOR THE NINTH CIRCUIT



ADEREMI EMMANUEL ATANDA,                         No. 07-70005

            Petitioner - Appellant,              Agency No. A028-329-199

  v.
                                                 MEMORANDUM *
ERIC J. HOLDER, Attorney General,

            Respondent - Appellee.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                      Argued and Submitted December 7, 2011
                                Seattle, Washington

Before: McKEOWN and TALLMAN, Circuit Judges, and MOSKOWITZ, District
Judge.**

       Aderemi Emmanuel Atanda (the 'Petitioner') petitions for review of the

Board of Immigration Appeals' ('BIA') decision dismissing his appeal of an order

sustaining the charge of removability and finding the Petitioner ineligible for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Barry Ted Mosµowitz, United States District Judge
for the Southern District of California, sitting by designation.
discretionary relief under Section 212(h) of the I.N.A. Reviewing the Petitioner's

claims de novo, we grant the petition for review. See Perez-Mejia v. Holder, 663

F.3d 403, 409 (9th Cir. 2011) (reviewing de novo an alien's contention that the

government did not meet its burden of proving removability based on an

admission).

                                          I.

      The immigration judge ('IJ') and the BIA erred in finding that the Petitioner

was sentenced to 'a term of at least one year imprisonment' for his forgery

convictions and that those convictions therefore constituted an 'aggravated felony'

rendering the Petitioner removable. See 8 U.S.C. y 1101(a)(43)(R).

      On November 17, 2003, the Petitioner was convicted in the Superior Court

of California, Los Angeles County, for five counts of felony forgery in violation of

California Penal Code ('C.P.C.') y 470(d), one count of grand theft by

embezzlement in violation of C.P.C. y 487(a), three counts of failing to file an

income tax return, two counts of filing a false tax return, and one count of driving

under the influence of alcohol ('DUI'). In the Notice to Appear ('NTA') for the

removal proceedings at issue in this petition, the Government charged only the five

y 470(d) forgery convictions.

      The abstract of judgment for the state-court convictions, a document

constituting part of the record of conviction, shows that the Petitioner received a

                                          2
sentence of two years for his grand theft conviction and that the sentences for his

forgery convictions were stayed pursuant to C.P.C. y 654(a). Section 654(a)

applies when multiple counts in the charging document cover the same underlying

conduct. It requires the state court to impose a sentence on all counts covering that

conduct and stay execution of the sentence on the count that provides for the

shorter potential term of imprisonment. See People v. Alford, 103 Cal. Rptr. 3d

898, 900, 905 (Ct. App. 2010). In this case, the record of conviction establishes

that the state court imposed a specific custodial sentence for the grand theft

conviction, but it does not indicate any specific term of imprisonment imposed for

the forgery convictions. Thus, there is insufficient evidence in the record to

establish that the state court imposed 'a term of imprisonment of at least one year'

for the Petitioner's forgery convictions.

      The Government contends that this absence of proof in the record of

conviction is irrelevant because the Petitioner admitted during the pleading stage of

his removal proceedings that he had been sentenced to the requisite term of

imprisonment for his forgery convictions. See Pagayon v. Holder, -- F.3d --,

2011 WL 6091276, at *4 (9th Cir. Dec. 8, 2011) ('[A]n alien's concession of

removability or admission of facts establishing removability, if accepted by the IJ,

completely 'relieve[s] the government of the burden of producing evidence.''

(citing Perez-Mejia v. Holder, 663 F.3d 403, 414 (9th Cir. 2011))).

                                            3
       At a hearing on July 5, 2006, the first IJ to preside over the Petitioner's

removal proceedings asµed him: 'Now, the Government says that for [the forgery]

offense you were sentenced to serve 32 months in prison in California, is that

rightá' The Petitioner replied: 'That's correct, Your Honor.' At a subsequent

hearing on September 13, 2006, a second IJ reviewed the abstract of judgment and

stated: 'I'm looµing at the judgment and it says two years for grand theft. And

then for the other counts, instead of -- it looµs liµe it's -- it looµs liµe it's stayed,

since the judge didn't want to have you spend two years on each count.' In her

September 13, 2006 oral decision, the second IJ found that the Petitioner 'was

ordered to two years incarceration on Count 1 [grand theft], and apparently also for

the forgery counts, although on the judgment it shows that the incarceration is

stayed as to the forgery counts, inasmuch as respondent would be serving the two

years on the grand theft charge.'

       Under these circumstances, the Petitioner's July 5, 2006 statement does not

constitute an admission that resolves this issue. First, it is unclear from the

transcript whether the Petitioner agreed (a) that he was sentenced to 32 months for

the forgery convictions; or (b) that the Government alleged he was sentenced to 32

months for the forgery convictions. Second, the second IJ never 'accepted' an

admission by the Petitioner that he was sentenced to 32 months for forgery.

Instead, in her September 13, 2006 oral decision, she relied on the abstract of

                                              4
judgment and found that the Petitioner had been sentenced to two years for the

grand theft charge as well as for the forgery convictions, and that the two-year

sentence for the forgery convictions was stayed. This was error, however, since

the abstract of judgment does not support the inference that the sentencing court

imposed any specific term of imprisonment for the forgery convictions--two years

or otherwise. Third, our review of the record maµes clear that the 32-month

sentence referred to by Mr. Atanda at the July 5, 2006 hearing encompassed the

two-year sentence for his grand theft conviction and the additional eight-month

sentence for his DUI conviction. All other sentences and enhancements indicated

on the abstract of judgment were either stayed, suspended, or concurrent to his

two-year sentence for grand theft and eight-month sentence for driving under the

influence. Thus, to the extent his statement on July 5, 2006, could be construed as

a pleading-stage admission that he was sentenced to 32 months for forgery, it is not

binding because it is plainly contradicted by the record. The finding by the IJ and

the BIA is not supported by the evidence, let alone substantial evidence.

      Because the IJ and the BIA erred in finding that the Petitioner was sentenced

to 'a term of at least one year imprisonment' for his forgery convictions and that

those convictions therefore constituted an 'aggravated felony,' see 8 U.S.C. y

1101(a)(43)(R), we grant the petition and remand to the BIA for further

proceedings.

                                          5
      We note that the BIA also found the Petitioner's grand theft conviction

under C.P.C. y 487(a) to be an aggravated felony. See 8 U.S.C. y 1101(a)(43)(G).

Although this determination could be relevant in assessing the Petitioner's

eligibility for certain forms of discretionary relief, the grand theft conviction

cannot serve as a grounds for removal because the Government did not charge the

Petitioner as removable on the basis of that conviction. Cf. Salviejo-Fernandez v.

Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006) ('[D]ue process does not require

that the NTA include a conviction that is not a ground of removability but is a

ground for denial of relief from removal.' (emphasis added)).

                                           II.

      Petitioner argues that since he entered the United States on an F-1 student

visa and adjusted to lawful permanent resident status post-entry (a fact not in

dispute), he has never 'been admitted to the United States as an alien lawfully

admitted for permanent residence' and therefore cannot be barred from seeµing

waiver of inadmissibility under y 212(h) on the grounds that he committed an

'aggravated felony.'    See Hing Sum v. Holder, 602 F.3d 1092, 1097 (9th Cir.

2010); Martinez v. Muµasey, 519 F.3d 532, 546 (5th Cir. 2008).

      The Government contends that we lacµ jurisdiction to address this issue

because Petitioner failed to raise this argument before the BIA. Our decision to




                                            6
grant the petition and remand to the BIA renders a decision on the exhaustion issue

unnecessary.

                                         III.

      For the reasons stated above, we hereby GRANT the petition and REMAND

to the BIA for further proceedings not inconsistent with this decision.




                                          7
                                                                             FILED
Atanda v. Holder, No. 07-70005                                               JAN 19 2012

                                                                        MOLLY C. DWYER, CLERK
TALLMAN, Circuit Judge, dissenting:                                       U.S . CO U RT OF AP PE A LS




      I respectfully dissent. The issue in this case is whether Atanda was

sentenced to a term of imprisonment of 'at least one year' for his five forgery

convictions for which he went to prison, not the county jail.1 See 8 U.S.C. y

1101(a)(43)(R). During the pleading stage of his immigration proceeding, Atanda

admitted he was so sentenced. That should be the end of it. Under our recent

decisions in Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir. 2011), and Pagayon v.

Holder, -- F.3d --, 2011 WL 6091276 (9th Cir. Dec. 8, 2011), we should hold

Atanda to his judicial admission and deny his petition for review.

      When an alien maµes an admission at the pleading stage of his immigration

proceeding, and the Immigration Judge ('IJ') accepts the admission, 'no further

evidence concerning the issues of fact admitted or law conceded is necessary.'

Perez-Mejia, 663 F.3d at 414 (citing 8 C.F.R. y 1240.10(c)). If the IJ is not

'satisfied' with an admission, or if the admission leaves material issues in dispute,

'the removal hearing enters an evidentiary stage during which the IJ receives

admissible evidence on any issue not resolved to his satisfaction at the pleading




      1
            In California, a conviction for felony forgery is punishable by
imprisonment in the state prison for a term of years. See Miller v. Mendoza-
Powers, No. 1:06-cv-0476, 2008 WL 4570466, at *3 (E.D. Cal. Oct. 14, 2008).
stage.' Id. at 411. Despite this seemingly simple procedure, we have recognized

that removal proceedings 'are 'not always neatly divided into pleading and

evidentiary stages.'' Pagayon, 2011 WL 6091276, at *5 (quoting Perez-Mejia, 663

F.3d at 415 n.10). That is probably the case here, where two different immigration

judges handled different phases of the proceeding against Atanda.

      At the pleading-stage, the first IJ heard Atanda's admission about his felony

sentence term. The IJ relied on the admission, noting that the only issues left to be

resolved at Atanda's further proceedings were citizenship and withholding of

removal. During Atanda's later hearing, however, the second IJ 'detoured into the

evidentiary phase of the proceedings,' id., by briefly acquainting herself with the

record. She consulted Atanda's Abstract of Judgment and quicµly noted the

obvious: the document does not state a term for Atanda's forgery sentence because

it was stayed under California Penal Code y 654. Because the Abstract of

Judgment was ambiguous, the second IJ--in an apparent attempt to reaffirm

Atanda's earlier admission--simply asµed Atanda how much time he had actually

served. Atanda responded that he 'was asµed to serve thirty-two months.'

Satisfied with this response, the second IJ moved onto other issues.

      I do not read the second IJ's 'subsequent colloquy' about the Abstract of

Judgment to 'suggest that either IJ believed that the issue required further


                                          2
evidence.' Id. I simply read it as a substitute IJ performing due diligence in a case

that did not originate before her. Under our precedent and the federal regulations

governing immigration proceedings, I would hold that Atanda is bound by his

admission as to the length of his prison sentence.

      Atanda aptly notes that we have refused to bind an alien to his pleading-

stage admission if it is 'patently inaccurate,' Garcia-Lopez v. Ashcroft, 334 F.3d

840, 844 n.4 (9th Cir. 2003), or incorrect 'as a matter of law.' Mandujano-Real v.

Muµasey, 526 F.3d 585, 588 (9th Cir. 2008). But Atanda's admission does not fall

into either category. He argues that his Abstract of Judgment shows that he was

not sentenced to at least one year on his forgery convictions after he was convicted

of embezzling a half-million dollars from his employer. But the Abstract of

Judgment says no such thing. It is silent as to sentence term because the sentence

was stayed under California Penal Code y 654.

      In contrast, Atanda himself was neither silent nor uncertain. He admitted to

two different IJs that he was sentenced to at least one year for his ü500,000

forgery, and his brief to the Bureau of Immigration Appeals suggests the same:

'[Atanda] was sentenced to the lower term of 365 days . . . . Being sentenced to a

year . . . does not mean that my sentenced [sic] is more than a year . . . .' Because

the statute only requires that Atanda was sentenced to at least one year, this latter


                                           3
admission of a 365-day sentence should also end our inquiry.

       While I agree that we cannot accept admissions that are legally impossible or

plainly contradicted by the record, I do not believe this case presents such a

scenario. Atanda is not a sympathetic alien we should bend over bacµwards to

help. Both IJs recognized that fact. I would deny Atanda's petition for review, and

I respectfully dissent.




                                          4
