                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-2455



SUNIL MOHANDAS TALREJA,

                                                          Petitioner,

          versus


ALBERTO R. GONZALES, Attorney General,

                                                          Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals. (A44-614-448)


Submitted:   July 29, 2005                 Decided:   August 19, 2005


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Nana Babington, Falls Church, Virginia, for Petitioner. Peter D.
Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright,
Assistant Director, Song Park, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Sunil Mohandas Talreja, a native and citizen of India,

petitions for review of a decision of the Board of Immigration

Appeals (Board) finding him subject to removal under 8 U.S.C.

§ 1227(a)(2)(A)(i) (2000), for having been convicted of a crime

involving moral turpitude for which a sentence of one year or

longer can be imposed, that is committed within five years of the

date of his admission.

          The       Government    has    the    burden   of   proving       to   the

immigration judge by clear and convincing evidence that “in the

case of an alien who has been admitted to the United States, the

alien is deportable.      No decision of deportability shall be valid

unless it is based upon reasonable, substantial, and probative

evidence.”      8    U.S.C.   §   1229a(c)(3)(A)     (2000);    see     8    C.F.R.

§ 1240.8(a) (2005) (“A[n alien] charged with deportability shall be

found to be removable if the Service proves by clear and convincing

evidence that the respondent is deportable as charged”). The alien

bears the burden of showing “by clear and convincing evidence, that

the alien is lawfully present in the United States pursuant to a

prior admission.”       § 1229a(c)(2)(B) (2000).              Thus, this court

considers whether substantial evidence supports the decision of the

immigration judge, as affirmed by the Board, that the Department of

Homeland Security established Talreja’s removability by clear and

convincing evidence, and that Talreja did not bear his burden of


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establishing a prior admission.              Nakamoto v. Ashcroft, 363 F.3d

874, 881-82 (9th Cir. 2004).

           Talreja      claimed      that    he    was   admitted    in    1985,   and

therefore,      the   1998   crime     was   not    within   five    years    of   his

admission.      However, Talreja failed to prove an admission in 1985,

and the Attorney General did establish entry in 1994, within five

years of the crime involving moral turpitude.                 Therefore, we hold

that substantial evidence supports the Board’s finding that Talreja

is removable as charged.        Talreja’s complaint that the immigration

judge   erred    in   failing     to   act   on    his   request     for   voluntary

departure is irrelevant as the Board found him ineligible for

voluntary departure under 8 U.S.C. § 1229c(b)(1)(B) (2000).

           Therefore, we deny the petition for review.                    We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                                    PETITION DENIED




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