                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 20 2010

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




                            FOR THE NINTH CIRCUIT



SAJID SHEIKH,                                     No. 05-74364

              Petitioner,                         Agency No. A073-820-352

  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 April 9, 2010
                               Pasadena, California

Before: PREGERSON and BEEZER, Circuit Judges, and CONLON, District
Judge.**


       Sajid Sheiµh ('Sheiµh'), a native and citizen of Paµistan, petitions for

review of the Board of Immigration Appeals' ('BIA') order denying his

application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Suzanne B. Conlon, United States District Court Judge
for the Northern District of Illinois, sitting by designation.
y 1252(a)(1).1 Because the BIA summarily affirmed the Immigration Judge's

('IJ') decision, we review the IJ's decision as we would that of the BIA. Perez v.

Muµasey, 516 F.3d 770, 773 (9th Cir. 2008). We grant the petition and remand.

      The IJ found that Sheiµh's conviction for appropriation of lost property

under Cal. Penal Code y 485 constituted a crime involving moral turpitude, and

that, as a consequence, Sheiµh was ineligible for cancellation of removal on two

bases. First, the IJ found that Sheiµh was ineligible because he was convicted of a

crime involving moral turpitude, for which a sentence of one year or longer may be

imposed, that was committed within five years of his date of admission. See 8



      1
         Our jurisdiction is not affected because Sheiµh now raises a new argument
in support of the claims he raised before the BIA. The claims Sheiµh raises here
are the same claims that he raised to the BIA. The claims are that IJ erred in
concluding that Sheiµh was ineligible for cancellation of removal pursuant 8 U.S.C.
yy 1227(a)(2) and 1229b(b)(1) based the IJ's finding that Sheiµh's California
conviction amounted to a crime involving moral turpitude. The only difference here
is that Sheiµh presents a new argument in support of those claims. This is
permitted. See Vizcarra-Ayala v. Muµasey, 514 F.3d 870, 873 (9th Cir. 2008)
(recognizing that a petitioner may raise a new argument on appeal in support of a
claim raised below to the BIA); Figueroa v. Muµasey, 543 F.3d 487, 492 (9th Cir.
2008) (holding that the exhaustion doctrine is not applied 'in a formalistic
manner'); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183-84 (9th Cir. 2001)
(holding that a petitioner sufficiently raised the issue of equitable tolling before the
agency even though his brief did not contain the phrase 'equitable tolling'); cf.
Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (explaining that
'once a federal claim is properly presented, a party can maµe any argument in
support of that claim . . . .'); United States v. Pallares-Galan, 359 F.3d 1088, 1095
(9th Cir. 2004) (same).

                                           2
U.S.C. y 1227(a)(2). Second, the IJ found that Sheiµh was ineligible because his

'continuous physical presence' ended when he was convicted of a crime involving

moral turpitude, and therefore Sheiµh could not establish continuous presence in

the United States for at least 10 years immediately preceding the date of his

application for cancellation of removal. See 8 U.S.C. y 1229b(b)(1).

          Sheiµh lawfully entered the United States in 1986. In 1988, he was

convicted of appropriating lost property in violation of Cal. Penal Code y 485.

Sheiµh's y 485 conviction occurred within 5 years of his admission to the U.S., and

he could have could have been sentenced to more than a year in jail. Accordingly,

if Sheiµh's y 485 conviction was a crime involving moral turpitude, Sheiµh is

ineligible for cancellation of removal under 8 U.S.C. yy 1227(a)(2) and 1229b

(b)(1).

          Sheiµh contests the IJ's determination that his y 485 conviction constitutes a

crime involving moral turpitude, thereby rendering him ineligible for cancellation

of removal under 8 U.S.C. yy 1227(a)(2) and 1229b(b)(1). 'We review the IJ's

legal determinations de novo.' Ramos-Lopez v. Holder, 563 F.3d 855, 858 (9th

Cir. 2009).

          To determine whether Sheiµh's y 485 conviction is a crime involving moral

turpitude, we apply the categorical approach, and if appropriate, the modified


                                             3
categorical approach, as outlined in Taylor v. United States, 495 U.S. 575, 600-02

(1990), and Shepard v. United States, 544 U.S. 13, 16-17 (2005). See also

Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067, 1073 (9th Cir. 2007) (en banc)

(outlining the categorical and modified categorical approaches).

      Theft offenses are categorically crimes involving moral turpitude only when

the statute of conviction requires the 'base, vile, or depraved' conduct of intending

to permanently deprive the property owner. See, e.g., Alvarez-Reynaga v. Holder,

596 F.3d 534, 537 (9th Cir. 2010); Castillo-Cruz v. Holder, 581 F.3d 1154, 1161

(9th Cir. 2009). Section 485 does not require, by its plain language or as

interpreted by California courts, an intent to permanently deprive an owner of

property. See Cal. Penal Code y 485 (enumerated elements do not require intent to

permanently deprive); Matter of B.H., No. GO30253, 2008 WL 2574476, *1, *3

(Cal. App. 4th. June 27, 2008) (affirming a y 485 conviction where intent to

permanently deprive was neither identified nor established as an element of the




                                          4
crime).2 Therefore, a y 485 conviction is not categorically a crime involving moral

turpitude.

      Where, as here, a conviction does not constitute a predicate offense for

immigration purposes under the categorical approach, we next determine whether

to apply the modified categorical approach. See Navarro-Lopez, 503 F.3d at 1073.

Where the statute of conviction is missing an element of the predicate offense

altogether, our inquiry ends with the categorical approach and we do not apply the

modified categorical approach. Id.; United States v. Jennings, 515 F.3d 980, 992

(9th Cir. 2008). Here, we do not apply the modified categorical approach because

y 485 is missing one of the elements of a crime involving moral turpitude.

Specifically,y 485 does not require the 'base, vile, or depraved' conduct of

intending to permanently deprive the property owner. Thus, Sheiµh's y 485

conviction does not constitute a crime involving moral turpitude.


      2
         With limited exceptions not applicable here, 'an opinion of a California
Court . . . that is not certified for publication or ordered published must not be cited
or relied on by a court or party in any other action.' Cal. Rule of Court 8.1115.
The unpublished case cited here, however, is not relied on as authority, but instead
is used only to illustrate that y 485 does not require an intent to permanently
deprive an owner of property. See Castillo-Cruz, 581 F.3d at 1161 n. 9
('unpublished cases are pertinent for showing that there is a 'realistic probability'
that [a statute of conviction] has been and will be applied to conduct falling outside
of the generic definition of a crime involving moral turpitude.') (internal citation
omitted).


                                           5
      Because Sheiµh's y 485 conviction is not a crime involving moral turpitude,

Sheiµh is not statutorily ineligible for cancellation of removal under 8 U.S.C.

yy 1227(a)(2) or 1229b(b)(1). Sheiµh is not ineligible under y 1227(a)(2) because

he was not convicted of a crime involving moral turpitude. Sheiµh is not ineligible

under y 1229b(b)(1) because, as his y 485 is not a crime involving moral turpitude,

his continuous presence in the U.S. ended when the government issued his Notice

to Appear,3 not at the time of Sheiµh's y 485 conviction.4 See 8 U.S.C.

y 1229b(b)(1).

      We therefore GRANT Sheiµh's petition for review and REMAND to the

BIA to consider whether, accepting that Sheiµh was not convicted of a crime

involving moral turpitude and that he can establish ten years of continuous

physical presence, Sheiµh can satisfy the remaining elements of eligibility for

cancellation of removal under 8 U.S.C. y 1229b(b)(1). See, e.g., Blanco v.

Muµasey, 518 F.3d 714, 720 (9th Cir. 2008); Navarro-Lopez, 503 F.3d at 1074.


      3
         Sheiµh lawfully entered the United States in October 1986. With the
exception of one short lawful trip to Paµistan in 1997, Sheiµh has continuously
lived in the United States since 1986. The government issued Sheiµh's Notice to
Appear on February 29, 2003. Therefore, Sheiµh can establish sixteen years of
continuous presence.
      4
        We also note that Sheiµh's continuous presence did not end with his y 485
conviction because, as the IJ correctly found, the conviction falls under the 'petty
offense exception' of 8 U.S.C. y 1182(a)(2)(A)(ii)(II).

                                          6
PETITION FOR REVIEW GRANTED; REMANDED TO THE BIA.




                       7
                                                                            FILED
Conlon, District Judge, dissenting. Sheiµh v. Holder, No. 05-74364           MAY 20 2010

                                                                         MOLLY C. DWYER, CLERK
      We lacµ jurisdiction to review the immigration judge's determination that OF AP PE A LS
                                                                      U.S . CO UR T




Sheiµh's conviction under California Penal Code y 485 constituted a crime of

moral turpitude under 8 U.S.C. y 1227(a)(2). Sheiµh did not challenge the moral

turpitude finding in his appeal to the Board of Immigration Appeals. Rather, he

acµnowledged in his BIA notice of appeal that he had been convicted of a crime of

moral turpitude. Because the moral turpitude issue is administratively

unexhausted, we are without jurisdiction to address it. See Barron v. Ashcroft, 358

F.3d 674, 677 (9th Cir. 2004).

      Our jurisdiction is statutorily limited to the review of issues exhausted

before the BIA. 8 U.S.C. y 1252(d)(1). The purpose of the exhaustion

requirement is to give the administrative agency 'a full opportunity to resolve a

controversy or correct its own errors before judicial intervention.' Sagermarµ v.

INS, 767 F.2d 645, 648 (9th Cir. 1985). In order to satisfy the exhaustion

requirement, a petitioner must put the BIA on notice of the specific issue, so the

BIA has an opportunity to address it. Figueroa v. Muµasey, 543 F.3d 487, 492 (9th

Cir. 2008).

      Sheiµh's BIA notice of appeal identified only one alleged error by the

immigration judge: the calculation of his continuous physical presence in the

United States. The notice of appeal stated, 'although Mr. Sheiµh committed a
crime of moral turpitude in 1988, his continuous physical presence in the United

States began to accrue anew after that event.' (emphasis added). He explicitly

conceded that his conviction under y 485 constituted a crime of moral turpitude.

      Sheiµh could still have exhausted his administrative remedies by challenging

the moral turpitude finding in his BIA brief. See Zhang v. Ashcroft, 388 F.3d 713,

721 (9th Cir. 2004) (per curiam). But he did not do so. In a comprehensive 17-

page brief, Sheiµh's counsel presented thorough, well-supported arguments on

several issues: (1) the application of the 'stop-time' rule with respect to his

continuous physical presence in the United States; (2) the legal effect of his

advance parole status; and (3) the immigration judge's treatment of the petty

offense exception in 8 U.S.C. y 1182(a)(2)(A)(ii). His BIA brief simply did not

challenge the immigration judge's conclusion that a conviction under y 485 was a

crime of moral turpitude.

      Given the concession in his notice of appeal that he was convicted of a crime

of moral turpitude and the absence of any contrary argument in his BIA brief,

Sheiµh cannot be deemed to have administratively exhausted a challenge to the

immigration judge's moral turpitude finding. When a petitioner files a BIA brief,

'the BIA is entitled to looµ to the brief for an explication of the issues that

petitioner is presenting to have reviewed.' Abebe v. Muµasey, 554 F.3d 1203,

1208 (9th Cir. 2009) (en banc). Sheiµh exhausted only the issues he raised and
argued in his BIA brief. Id. Because he did not provide the BIA with fair notice of

the moral turpitude issue, the BIA was deprived of an opportunity to review it.

Whether or not Sheiµh's claim that the immigration judge erred is meritorious, he

failed to exhaust BIA remedies. We are therefore deprived of jurisdiction to

review the immigration judge's moral turpitude finding. See 8 U.S.C. y

1252(d)(1); Abebe, 554 F.3d at 1208; Zara v. Ashcroft, 383 F.3d 927, 930-31 (9th

Cir. 2004); Barron, 358 F.3d at 677.

      Nonetheless, the majority concludes that we may exercise jurisdiction

because Sheiµh is merely presenting a new argument to this court in support of an

issue he presented to the BIA. It is true that a petitioner need not have raised the

same precise argument before the BIA as long as he identified the issue forming

the basis of his appeal. See Vizcarra-Ayala v. Muµasey, 514 F.3d 870, 873 (9th

Cir. 2008); Zhang v. INS, 388 F.3d 713, 721 (9th Cir. 2004). But the majority's

application of this principle is not supported by the record. Sheiµh unambiguously

conceded in his BIA notice of appeal that he was convicted of a crime of moral

turpitude. The issues raised in Sheiµh's BIA brief were predicated on this

concession. He maintained that 8 U.S.C. y 1229b(d)(1) did not prohibit his

'continuous physical presence' clocµ from restarting after his moral turpitude

conviction. Sheiµh further argued the immigration judge erred in finding him

ineligible for the petty offense exception; this statutory exception only comes into
play if an alien has been convicted of a crime of moral turpitude. See 8 U.S.C.

y 1182(a)(2)(A)(ii). Only now, in his petition to this court, does Sheiµh argue that

the immigration judge erred in classifying his y 485 conviction as morally

turpitudinous. Sheiµh is not presenting a new argument in support of an issue

raised before the BIA; he is raising an entirely new issue.

       Because the majority reviews a moral turpitude issue not properly before the

court, I respectfully dissent.
