                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 08 2011

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




                            FOR THE NINTH CIRCUIT



EROS YOLOTZIN BACA,                              No. 09-71702

              Petitioner,                        Agency No. A088-708-079

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

              Respondent.



EROS YOLOTZIN BACA,                              No. 10-70834

              Petitioner,                        Agency No. A088-708-079

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                        Argued and Submitted June 8, 2011
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.

      Eros Baca petitions for review of agency decisions ordering him removed,

denying his application for cancellation of removal, and denying his motion to reopen.

We grant the petition and remand.

      The immigration judge (IJ) pretermitted Baca’s application for cancellation of

removal on the ground that he had committed a crime involving moral turpitude,

which rendered him ineligible for cancellation under 8 U.S.C. § 1229b(b)(1)(C). The

IJ did not consider or determine whether Baca was ineligible for cancellation of

removal on any other ground. Baca appealed to the Board of Immigration Appeals

(BIA), and both his briefing and the government’s concerned only whether his crime

was one involving moral turpitude.1 The BIA nevertheless affirmed the IJ’s decision

to pretermit cancellation of removal on the ground that Baca lacked a qualifying

relative, as required by 8 U.S.C. § 1229b(b)(1)(D).2 But the IJ had taken no evidence


      1
        Baca was convicted of trademark counterfeiting, Or. Rev. Stat. § 647.145,
for posting online an advertisement for an “Imitation Rolex.” He was sentenced to
one night in jail and $237 in fines.
      2
        The BIA’s initial decision held in the alternative that Baca was ineligible
for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(B), because he had
admitted the commission of a crime involving moral turpitude. See 8 U.S.C.
§ 1101(f)(3) (providing that any “member of . . . the class[] of persons” described
by 8 U.S.C. § 1182(a)(2)(A) cannot be regarded as having good moral character).
As the government concedes, however, the BIA abandoned this rationale in
denying Baca’s motion to reopen. See Gov’t Br. at 30 n.15 (“Given the Board’s
disposition of Baca’s motion, the agency determination, as it now stands, is that
                                                                        (continued...)
on whether Baca had a qualifying relative, and the BIA is not permitted to engage in

such fact-finding.3 8 C.F.R. § 1003.1(d)(3)(iv); see Brezilien v. Holder, 569 F.3d 403,

412 n.3 (9th Cir. 2009). The BIA’s sua sponte decision to resolve the appeal on this

basis was therefore beyond its authority.

      The government requests that if we reach this conclusion, we remand. Gov’t Br.

at 30 n.15. Accordingly, we grant the petition and remand with instructions that the

BIA remand to the IJ to determine, in the first instance, whether Baca does have a

relative who might enable him to meet the requirements of 8 U.S.C. § 1229b(b)(1)(D).

On remand, the IJ may also consider what effect, if any, the pardon issued by the

Governor of Oregon for Baca’s crime might have on his eligibility for cancellation of

removal. See Aguilera-Montero v. Mukasey, 548 F.3d 1248 (9th Cir. 2008); see also

Matter of H-, 6 I. & N. Dec. 90 (BIA 1954); 22 C.F.R. § 40.21(a)(5).



      2
        (...continued)
Baca is ineligible for cancellation of removal only because he does not have a
qualifying relative.”). We therefore need not consider whether this rationale would
support the holding that Baca is ineligible for cancellation of removal.
       If we were to consider it, however, we would have serious doubt that it
could sustain the BIA’s determination. Baca’s guilty plea was not an “admission”
but simply a route to arriving at a “conviction.” See Dillingham v. INS, 267 F.3d
996, 1003-04 (9th Cir. 2001), overruled on other grounds by Nunez-Reyes v.
Holder, 646 F.3d 684 (9th Cir. 2011). While Baca admits having advertised an
imitation Rolex for sale, he denies having “know[n] that Rolex was a registered
trademark” or having “made a false statement in order to gain something of value.”
      3
       We consider this argument notwithstanding that Baca did not raise it in his
opening brief. See Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004).
The panel retains jurisdiction over this matter.

GRANTED and REMANDED.
