                                                                               FILED
                            NOT FOR PUBLICATION                                MAY 14 2014

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JHATEEN B. BHATT, AKA Jateen Bipin               No. 12-71667
Bhatt,
                                                 Agency No. A099-568-616
              Petitioner,

  v.                                             MEMORANDUM*

ERIC HOLDER, Jr., Attorney General,

              Respondent.


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

                        Argued and Submitted April 8, 2014
                            San Francisco, California

Before: SCHROEDER, LIPEZ**, and CALLAHAN, Circuit Judges.

       Jhateen Bhatt, a native and citizen of Tanzania, challenges the decision of

the Board of Immigration Appeals ("BIA"). The BIA found him removable based

on convictions for grand theft and forgery, and statutorily ineligible for a waiver of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kermit V. Lipez, of the United States Court of
Appeals for the First Circuit, sitting by designation.
inadmissibility under Section 212(h) of the Immigration and Naturalization Act

("INA"), 8 U.S.C. § 1182(h).

      The BIA did not err in finding that Bhatt's conviction for forgery under

California Penal Code § 470(b) was an aggravated felony because it was an offense

involving "fraud or deceit in which the loss to the victim . . . exceeds $10,000." 8

U.S.C. § 1101(a)(43)(M)(i). The jury's findings included a finding that the forgery

caused a loss greater than $200,000. Under the circumstances of this case, that

jury finding satisfies the government's burden to prove the circumstances of the

crime by clear and convincing evidence. See Nijhawan v. Holder, 557 U.S. 29, 41-

43 (2009).

      Because we agree that the forgery conviction is an aggravated felony, we do

not decide whether Bhatt's grand theft conviction under California Penal Code

§ 487(a), premised on a theory of theft by false pretenses, is a "theft offense"

aggravated felony, 8 U.S.C. § 1101(a)(43)(G), under the modified categorical

approach of Descamps v. United States, 133 S. Ct. 2276 (2013). Also, we note that

the government did not argue the grand theft issue in its briefing.

       The BIA held that Bhatt was ineligible for a waiver of inadmissibility

under INA § 212(h), 8 U.S.C. § 1182(h), because his adjustment of status after

entering the country was an "admission" as contemplated by the § 212(h) statutory


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bar. After the BIA's decision, this court held in Negrete-Ramirez v. Holder that

such an adjustment of status is not an "admission" under § 212(h). 741 F.3d 1047

(9th Cir. 2014). Because the BIA did not consider Bhatt to be statutorily eligible

for a waiver of inadmissibility, it did not decide whether he merited further relief.

We thus must remand for consideration of possible relief given that the § 212(h)

bar does not apply.

      The petition is therefore DENIED with respect to the forgery conviction,

and GRANTED with respect to statutory eligibility for a waiver of inadmissibility

under INA § 212(h). We REMAND for further proceedings consistent with this

opinion. Each side to bear its own costs.




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