                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 21 2010

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




                              FOR THE NINTH CIRCUIT



EVARISTO BECERRIL and SILVIA                       No. 07-71290
BECERRIL,
                                                   Agency No. A077-823-252/253
              Petitioners,
  v.
                                                   MEMORANDUM *
ERIC H. HOLDER, JR.,** Attorney
General,

             Respondent.

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

                              Submitted August 31, 2009 ***
                                  Pasadena, California

Before: ALEX KOZINSKI , Chief Judge, STEPHEN REINHARDT, Circuit Judge,
and ROBERT J. TIMLIN,**** Senior District Judge.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            Eric Holder, Jr. is substituted for his predecessor, Michael B.
Mukasey, as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
        ***
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

       ****  The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
      Regarding Mr. Becerril, the evidence “indicate[d] that one or more of the

grounds for mandatory denial of the application for relief may apply,” namely a

conviction of a crime of moral turpitude, thereby shifting the burden to Becerril to

show that such a ground does not apply. 8 C.F.R. § 1240.8(d); Rendon v.

Mukasey, 520 F.3d 967, 973 (9th Cir. 2008). Becerril’s attorney stated on the

record that he was convicted of a violation of California Penal Code § 245(a).

And the attorney offered into evidence a document from the Merced County

Municipal Court which stated that criminal records were available for 2 charges:

California Penal Code § 245(a)(1) and California Vehicle Code §§ 23152(a) and

(b). The attorney’s admission coupled with the Merced County Municipal Court

document show that one ground for mandatory denial may apply and that is

sufficient to shift the burden of proof to Becerril. See 8 C.F.R. § 1240.8(d).

      Once the burden shifted, Becerril was required to prove by a preponderance

of the evidence that he was not convicted of assault with a deadly weapon.

However, only one piece of evidence, the FBI report, tended to show that Becerril

was not convicted of assault with a deadly weapon. Although it tended to prove

that he was convicted of battery, rather than assault with a deadly weapon, it did

not definitively state that. Furthermore, Becerril offered contradictory testimony



                                          2
regarding the nature of his conviction, at first stating that he did not believe he was

convicted of anything and then saying he pled guilty to driving under the influence.

And the FBI report does not say that Becerril was charged or convicted of drunk

driving, providing yet another reason to doubt its thoroughness. Finally, the only

unequivocal statements made at Becerril’s hearing concerning what crime Becerril

was convicted of were made by Becerril’s attorney: First, he stated that Becerril

was “convicted of 245A of the penal code” and then he identified the crime of

conviction as “assault.” Ordinarily, admissions of fact by counsel in removal

proceedings are binding on the client. See Rodriguez-Gonzalez v. INS, 640 F.2d

1139, 1140-41 (9th Cir. 1981). Therefore, the BIA’s conclusion that Mr. Becerril

failed to satisfy his burden of proving he was not convicted of a crime of moral

turpitude is supported by substantial evidence.

      Substantial evidence also supports the BIA’s finding that Ms. Becerril made

misrepresentations to the IJ while under oath at an immigration hearing while she

was seeking the benefit of cancellation of removal. See 8 U.S.C. §§

1229b(b)(1)(B), 1101(f)(6); see also Kungys v. United States, 485 U.S. 759, 780

(1988). During the hearing, Ms. Becerril first testified that she had never been

arrested, but on cross-examination admitted that she had in fact been arrested for

theft and contributing to the delinquency of a minor. She said that she had not


                                           3
originally mentioned the arrests because she did not know if they technically

qualified as arrests, even though she was detained for five hours, appeared before a

judge, and paid a fine. A fair reading of Ms. Becerril’s testimony is that she

originally attempted to hide her criminal record, but upon cross-examination, she

realized that she was not going to be able to, told the truth as to her arrest history,

and concocted an implausible story as to why she had not originally mentioned her

arrest. To obtain reversal under the substantial evidence standard, the applicant for

cancellation of removal must demonstrate that the evidence not only supports that

conclusion, but compels it. Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir.

2008). Ms. Becerril failed to demonstrate that the evidence compelled the

conclusion that she had not given false testimony for the purpose of obtaining

immigration benefits.

PETITIONS FOR REVIEW DENIED.




                                            4
                                                                            FILED
07-71290 Becerril v. Holder                                                   JAN 21 2010

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS




REINHARDT, Circuit Judge, concurring in part and dissenting in part:

      The evidence in Mr. Becerril’s case, viewed in its entirety, does not

“indicate that one or more of the grounds for mandatory denial of the application

may apply” 8 C.F.R. § 1240.8(d). The record is not ambiguous. Mr. Becerril was

convicted of battery, which is, all agree, not a crime of moral turpitude. The

Merced County Municipal Court criminal record and the FBI report show precisely

what occurred in January 1995 when Mr. Becerril was convicted. The Merced

County Municipal Court record shows that Mr. Becerril was charged with assault

with a deadly weapon under California Penal Code § 245(a)(1) and with driving

while intoxicated under California Vehicle Code §§ 231.52(a) and (b). The same

record shows that the disposition of the charges was 36 months of probation, 20

days in jail, enrollment in an alcohol treatment program, and a fine. The document

does not reflect what the act of conviction was, although the nature of the sentence

in combination with the words the words “plead[s] no contest” suggests that Mr.

Becerril pled to a lesser offense, rather than going to trial on the crimes with which

he was initially charged.


                                           5
      The FBI record then makes clear the offense to which Mr. Becerril pled nolo

contendere–the offense of which he was actually convicted. That record states that

Mr. Becerril was “arrested or received” on the charge of assault with a deadly

weapon. It then shows that he was convicted in Merced County Municipal Court

of the lesser offense of battery, for which he received 20 days in jail, 36 months of

probation, and a fine. There can be no doubt, based upon this record, that the only

offense of which Mr. Becerril was convicted was battery, and that the sentence

referred to in the County Municipal Court record was the sentence for that offense.

In short, these two records, taken together, show beyond any question, not simply

by a preponderance of the evidence, that in January 1995 Mr. Becerril was arrested

and charged with the greater offense of assault with a deadly weapon, as well as

drunk driving, and was then convicted, following a plea of nolo contendere, solely

of the lesser offense of battery.

      The majority holds that the FBI report, which shows that the conviction was

for battery, constitutes insufficient evidence of the nature of that conviction. I am

not aware of a single immigration case in which an FBI record has been held

insufficient to establish that an individual has been convicted of the offense shown

on that record. Nor am I aware of any case of any kind in which an unchallenged

and uncontroverted FBI record has been deemed inadequate for such purpose.


                                           6
Here, the FBI record carries particular weight because it is fully consistent with the

state court record that was also introduced into evidence, and because no-one was

confronted with or contested the accuracy of the FBI record–neither the petitioner

nor the government. The majority characterizes the FBI report as merely

“tend[ing] to prove that [Becerril] was convicted of battery, rather than assault with

a deadly weapon,” claiming that “it did not definitely state that.” Yet, as the Board

of Immigration Appeals (“BIA”) noted in its opinion, even the government

acknowledges that the FBI report constitutes “definitive objective documentary

criminal evidence.” Furthermore, as the BIA also observed, this is the “only” such

evidence “in the record” and it is evidence that “indicates that [Mr. Becerril] was

convicted of violating California Penal Code § 242 (battery).” No documentary or

other evidence suggests that the FBI record is incorrect. Nor did any witness deny

its accuracy or even suggest that it might be incorrect—and it stated clearly, not

ambiguously, that Mr. Becerril was convicted of battery following the filing of the

assault with a deadly weapon charge.

      Mr. Becerril’s statements to the Immigration Judge (“IJ”), in the early stages

of the hearing, about the circumstances of his arrest, charge, and conviction may

have been confused and uncertain, but they do not in any way suggest that he was

convicted of the greater offense with which he was initially charged. If anything,


                                          7
his statements suggest, erroneously, that he was convicted only of drunk driving.

In any event, Mr. Becerril’s early confusion certainly does not outweigh the

subsequently introduced concrete documentary evidence of the FBI report and the

Merced County Municipal Court record, or undermine the conclusion that the

record clearly requires, based on the uncontroverted documentary evidence.

Significantly, once that evidence was introduced, neither side challenged it or

contradicted it in any way. Nor do the early statements by Mr. Becerril’s counsel

that his client was convicted of assault with a deadly weapon change these facts in

any way. Admissions made by counsel during a removal proceeding are not

binding on a client if the client subsequently proffers evidence that counsel’s

statements “were untrue or incorrect.” Matter of Velasquez, 19 I. & N. Dec. 377,

383 (1986). Here the evidence showing that counsel’s statement was incorrect was

subsequently submitted by the government, not the client. So much the better for

Mr. Becerril, as the government’s evidence is “definitive, objective documentary .

. . evidence” that could not in good faith be challenged by the government and was

not in fact contested, challenged, or contradicted by Mr. Becerril.

      Mr. Becerril’s counsel initially asked him to testify at the immigration

hearing about his arrest and conviction in 1995. Counsel, however, apparently

regarded Mr. Becerril’s answers as too indefinite, and cut short his testimony when


                                          8
it became clear that his understanding of the nature of the agreed-upon disposition

was incorrect; instead, counsel made a clearly erroneous statement about Mr.

Becerril’s conviction, based on his own lack of authoritative information. At the

time counsel made his statement, he had not seen the FBI records, and he did not

introduce any documentary evidence that showed the nature of the conviction. It

appears counsel had seen only the court record that showed the offenses with

which Mr. Becceril was originally charged, but had not seen any record that

showed a conviction. When counsel subsequently attempted to support his

statement regarding the conviction by providing the IJ with the Merced County

Municipal Court record, the government immediately noted that: “it’s not really

clear . . . based on this document whether or not the respondent was in fact

convicted of [assault with a deadly weapon]. The charges don’t necessarily

correspond to the fine and the disposition.” The government subsequently offered

the FBI record, which constituted documentary evidence that Mr. Becerril’s

counsel’s statement was untrue and incorrect. As the BIA states in its opinion, “the

government specifically note[d] that the only definitive objective documentary

criminal evidence in the record indicates that [Mr. Becerril] was convicted of

violating California Penal Code § 242 (battery).” Denying an individual’s

application for cancellation of removal on the basis of a lawyer’s erroneous


                                          9
statement, when documentary evidence, let alone an unchallenged FBI record

subsequently entered in the record, clearly disproves the lawyer’s assertion, is clear

error under any meaning of the term. Here, despite the uncontested evidence in the

record, in the form of the FBI Identification Record, and the government’s

acknowledgment that the “only definitive objective documentary criminal

evidence” was that record, which shows that Mr. Becerril was convicted of the

lesser offense of battery, the BIA based its decision on Mr. Becerril’s counsel’s

unsupported, factually inaccurate statement that the conviction was for the greater

offense of assault with a deadly weapon.

      This case is far from close. We have clear, undisputed documentary

evidence in the record that in 1995 Mr. Becerril was convicted of battery, which is

not a crime of moral turpitude. Mr. Becerril’s counsel made an untrue and

incorrect statement about his client, that was clearly an erroneous assumption, that

led the BIA to hold erroneously that Mr. Becerril was ineligible for cancellation of

removal. Although an applicant for such relief has the burden of proving by a

preponderance of the evidence that he has not been convicted of a crime of moral

turpitude, that burden is satisfied when the record before the court, establishes that

he was not convicted of such a crime, but rather of a lesser offense—whether the

determinative evidence is introduced by the petitioner or by the government. Thus,


                                           10
the majority’s conclusion that Mr. Becerril “failed to satisfy his burden of proving

he was not convicted of a crime of moral turpitude” is clearly erroneous. The

record incontrovertibly shows the contrary.

      Substantial evidence in the record does not support the BIA’s decision with

respect to Mr. Becerril. Mr. Becerril was not convicted of assault with a deadly

weapon; rather, as the uncontested FBI Identification Record establishes, by more

than a preponderance of the evidence, he was convicted of battery. A reasonable

adjudicator would therefore be compelled to conclude that the BIA erred in finding

Mr. Becerril statutorily ineligible for cancellation of removal. See Gutierrez v.

Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008).

      Mr. Becerril has suffered from two egregious errors in this case. First, the

BIA (and now the majority) fail to credit a legitimate FBI record that is dispositive,

uncontradicted, and not the subject of any claim of inaccuracy or impropriety.

Second, Mr. Becerril has been penalized because of the ineffective assistance of his

counsel, who failed to make any effort to obtain the necessary records and who

made an untrue, inculpatory representation about Mr. Becerril’s criminal record.

Perhaps this will not be the end of the saga, as Mr. Becerril is now certainly

entitled, to present a claim of ineffective assistance of counsel to the BIA. It is

unfortunate that the majority’s erroneous view of the law may extend the current


                                           11
issue into the indefinite future where further proceedings may be required to enable

Mr. Becerril to obtain the relief to which he is entitled. How much better it would

be for this court to get the law right the first time.1

       I DISSENT.




       1
         Our decision also makes it clear for the first time that counsel’s ineffective
performance was prejudicial. Until now, one would have thought that the full
record in Mr. Becerril’s cancellation of removal proceeding rendered counsel’s
error harmless.

                                            12
