           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 24, 2009
                                     No. 08-60820
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

KUFFOUR OSEI

                                                   Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A42 471 080


Before KING, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Kuffour Osei, a native and citizen of Ghana, petitions for review of a
decision of the Board of Immigration Appeals (BIA), which dismissed his appeal
from a finding that he was ineligible for a waiver of inadmissibility under former
§ 212(c) and § 212(h) of the Immigration and Nationality Act. Osei seeks review
only of the denial of § 212(c) relief.
       The parties agree that the relevant issue is when Osei agreed to plead
guilty to a 1996 state charge of credit card abuse. If an agreement was reached

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                     No. 08-60820

before April 24, 1996, then Osei was eligible for relief under former § 212(c); if
an agreement was reached after April 23, 1996, then he was not eligible for
relief.     The BIA found that Osei had “not shown that he entered a plea
agreement before April 24, 1996.”
          Osei argues, inter alia, that the BIA applied the wrong standard in finding
that he “entered” his plea after April 24, 1996. The parties agree that the
relevant regulation provides that in evaluating the alien’s eligibility for relief,
one factor for consideration is whether the alien was eligible to apply for relief
“under the standards that were in effect at the time the alien’s plea was made,
regardless of when the plea was entered by the court.” 8 C.F.R. § 1003.44(b)(4).
Despite its citation to § 1003.44(b) in its order, the BIA erred by considering the
date Osei’s plea was entered rather than the date it was made.
          The Government argues that, based on the record evidence, a remand
would be futile. However, because the BIA has applied an improper standard,
we conclude remand is appropriate in this case. See INS v. Orlando Ventura,
537 U.S. 12, 16-17 (2002); Mikhael v. INS, 115 F.3d 299, 306 (5th Cir. 1997).
          PETITION FOR REVIEW GRANTED; VACATED and REMANDED.




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