                                                                            FILED
                            NOT FOR PUBLICATION                             NOV 20 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ERWIN STUARDO VIVAR-FLORES,                      No. 09-72526

              Petitioner,                        Agency No. A029-249-620

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                     Argued and Submitted November 5, 2012
                            San Francisco, California

Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.




       Although the law prescribed a sentence of two, three or five years

imprisonment for second-degree robbery, the crime of which Vivar-Flores was

convicted, the court on appeal must look to the actual sentence entered when

removal proceedings are initiated under section 237(a)(2)(A)(iii) of the INA. 8


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1227(a)(2)(A)(iii). Here no actual sentence was imposed because the trial

court suspended imposition of sentence and placed Flores directly on probation.

      We must again remand. Although Flores was found guilty of second-degree

robbery, more was required. The question under section 237(a)(2)(A)(iii) is a

combination of the conduct and the sentence actually imposed. 8 U.S.C. §§

1101(a)(43)(G), 1227(a)(2)(A)(iii).

      The BIA merely looked at the offence and the sentence authorized. It was

required to consider what term of imprisonment was imposed. It need not

reconsider whether a conviction under state law is a removable offense. In light of

existing precedents, the BIA’s decision on that question was erroneous. We do not

ignore the definition of second-degree robbery. We merely hold that the conduct

and the sentence imposed are the combined controlling factors. The inquiry is to

the term of prison actually imposed rather than what is authorized by statute.

Under California law, a court ordering probation has the option of “leaving a

defendant unsentenced and placing him on probation, or . . . sentencing him and

thereafter placing him on probation.” Patel v. INS, 542 F.2d 796, 798 (9th Cir.

1976). It is, therefore, imperative to an analysis of punishments under California

law “to focus closely on the precise nature of the sentence, i.e., whether prior to

granting probation imposition of sentence was suspended, as in the first alternative,


                                           2
or execution of the sentence was suspended, as in the second alternative.” Id. at

798-99. If a trial court chooses to suspend the imposition of a sentence, it is

prohibited from specifying and pronouncing a term of imprisonment from the

statutory range. Cal. Penal Code § 1170(b). Here, no term of imprisonment was

actually imposed on Flores because the trial court suspended the imposition of his

sentence.

      We could merely grant the petition for review and reverse the BIA decision

with instructions to vacate the order of removal and terminate removal

proceedings. We remand instead to permit the BIA to consider the matter in its

proper posture in the first instance.

      REVERSED AND REMANDED.




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