FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GUADALUPE LOZANO
ARREDONDO,
No. 08-73835
Petitioner,
v. Agency No.
A098-392-551
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 7, 2010—Seattle, Washington
Filed November 2, 2010
Before: Alfred T. Goodwin, Michael Daly Hawkins and
N. Randy Smith, Circuit Judges.
Opinion by Judge Goodwin
18065
LOZANO ARREDONDO v. HOLDER 18067
COUNSEL
Maria E. Andrade, Boise, Idaho, for the petitioner.
Jem C. Sponzo, Kathryn M. McKinney, U.S. Department of
Justice, Washington, D.C., for the respondent.
OPINION
GOODWIN, Circuit Judge:
Jose Guadalupe Lozano Arredondo, a native and citizen of
Mexico, petitions for review of the Board of Immigration
Appeals (BIA) dismissal of his appeal from an Immigration
Judge’s (IJ’s) decision denying cancellation of removal. Peti-
tioner challenges the BIA’s conclusion that he was statutorily
ineligible for cancellation of removal because of his 1997
conviction for petty theft under Idaho Code Ann. § 18-
2408(3).
The IJ had grounded his denial of cancellation of removal
on a completely different reason: Petitioner’s mea culpa dur-
ing his hearing that when he was 21 years old, he had sexual
intercourse with a thirteen-year-old girl, which resulted in the
birth of the oldest of his three United States citizen children.
Thus, Petitioner admitted to facts amounting to statutory rape.
18068 LOZANO ARREDONDO v. HOLDER
Both grounds relied upon by the IJ (the statutory rape) and
by the BIA (the petit theft) present difficulties which require
that the case be remanded to the BIA for the BIA to decide
which of several statutes are applicable to this removal case,
and then to enter an appropriate order.
FACTUAL BACKGROUND
Petitioner entered the United States on August 17, 1990,
without being legally admitted or paroled. Fifteen years later,
the Department of Homeland Security served him with a
notice to appear, charging him under 8 U.S.C.
§ 1182(a)(6)(A)(i), as a removable alien. Petitioner applied
for cancellation of removal under 8 U.S.C. § 1229(b).
Petitioner testified in his application hearing on February 8,
2007. He admitted before the IJ facts that might have sup-
ported a prosecution under California law for statutory rape.
He was never prosecuted, however, and never convicted of
any offense in connection with his conjugal relations with the
teenage mother. He later fathered at least two more children,
born in the United States, with a different mother. All three
children are receiving Medicaid, and he asserted that they
would suffer hardship if he were removed. The IJ did not
reach the hardship question, and we will not reach it now.
Petitioner additionally admitted that he had been convicted
of petty theft in Idaho in April 1997, and served 64 days in
jail and paid a fine of $215.50, In an oral decision, the IJ
recited that an alien can apply for permanent residence and
cancellation of removal if he can show four prerequisites: (1)
“he has been physically present in the United States for the
last 10 years, and the stop-time rule that applied would be
from July 21, 2005,” back to July 21, 1995; (2) “during that
period . . . he has been a person of good moral character;” (3)
“he has not been convicted of specified criminal offense[s];”
and (4) “his removal would result in exceptional and
extremely unusual hardship to a parent, spouse, or child who
LOZANO ARREDONDO v. HOLDER 18069
is or are citizens of the United States or who is or are lawful
permanent residents of the United States.” See 8 U.S.C.
§ 1229b(b)(1).
The IJ noted that the government had stipulated that Peti-
tioner had “the necessary physical presence.” Petitioner also
qualified by having “three United States citizen children,”
although his current wife “is in the United States illegally,
without status.” The IJ additionally found that Petitioner had
“not been convicted of the specified criminal offenses under
the statute that would render him ineligible.”
Nonetheless, the IJ found from the admissions made by
Petitioner that he had failed to prove that he was of good
moral character. That finding is not surprising, on general
principles. But the question, however, is not easily answered
by recourse to general principles.
Petitioner correctly argues that his mea culpa revealing a
possible statutory rape does not constitute a conviction that
would disqualify him for discretionary relief under 8 U.S.C.
§ 1182 (a)(2). He further argues, possibly with merit, that his
Idaho shoplifting conviction is time barred and not founded
upon a statute carrying the requisite term of incarceration.
The BIA denied Petitioner’s appeal, without addressing the
statutory consequences of Petitioner’s admission of facts
which could have supported a timely prosecution under Cali-
fornia Penal Code § 261.5(d), criminalizing statutory rape.
The BIA based its dismissal of the appeal solely on Petition-
er’s petty theft conviction under Idaho Code Ann. § 18-
2408(3), a crime involving moral turpitude, punishable by an
imprisonment term of one year. See 8 U.S.C.
§ 1227(a)(2)(A)(i). Therefore, the BIA determined that Peti-
tioner was “statutorily ineligible for cancellation of removal.”
18070 LOZANO ARREDONDO v. HOLDER
DISCUSSION
We are faced with an IJ decision based primarily on the
alien’s uncharged, but admitted, statutory rape. This decision
was appealed to the BIA, which did not affirm the IJ’s deci-
sion, but instead, dismissed the appeal because of Petitioner’s
Idaho petty theft conviction. However, the BIA did not dis-
cuss the problem that the Idaho conviction was recorded in
1997, more than five years after Petitioner entered this country.1
See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Another difficulty with the
Idaho conviction is that the maximum sentence under the
Idaho law was one year, which did not “exceed one year,” the
language used in the petty crime exception to crimes
described in 8 U.S.C. § 1182 (a)(2)(A)(ii)(II).
[1] “The BIA does have the power to conduct a de novo
review of the record, to make its own findings, and indepen-
dently to determine the legal sufficiency of the evidence.”
Abovian v. INS, 219 F.3d 972, 978 (9th Cir. 2000) (citation
and internal quotation marks omitted); see Elnager v. INS,
930 F.2d 784, 787 (9th Cir. 1991) (“The BIA has the power
to apply the correct standard regardless of the law applied by
the immigration judge.”). Under 8 U.S.C. § 1252(a)(1), this
court reviews the BIA decision, the final agency order on can-
cellation of removal. See Agyeman v. INS, 296 F.3d 871, 876
(9th Cir. 2002) (“When the BIA reviews the IJ’s decision de
novo, our review is limited to the BIA’s decision . . . .”); Cas-
tillo v. INS, 951 F.2d 1117, 1120 (9th Cir. 1991) (“This
court’s review is limited to the BIA’s decision and thus we
may not rely on the IJ’s opinion in deciding the merits of [the
alien’s] case.”).
[2] In this case, the BIA did not reveal how its treatment
of the Idaho conviction conformed to the definitions and
exceptions spelled out in 8 U.S.C. § 1227(a)(2)(A)(i) or 8
1
The conviction did occur within the ten year “stop time” period
referred to by the IJ.
LOZANO ARREDONDO v. HOLDER 18071
U.S.C. § 1182(a)(2)(A)(ii). Specifically, the BIA does not
address the applicability, if any, of the exceptions outlined in
the respective statutes regarding crimes involving moral turpi-
tude (i.e., the petty offense exception and time period limita-
tions). See In re Gonzalez-Silva, 24 I. & N. Dec. 218, 219
(BIA 2007) (reaffirming its previous holding that “the
‘description’ of the category of offenses encompassing crimes
involving moral turpitude also includes the exception” (quota-
tion marks and citation omitted)); see also Vazquez-
Hernandez v. Holder, 590 F.3d 1053, 1055 n.3 (9th Cir. 2010)
(suggesting that if § 1182(a)(2) was the basis for removability
rather than § 1182(a)(6), the petty offense exception may have
applied). Based upon the BIA’s failure to engage in a substan-
tive analysis of its decision, we have no ability to conduct a
meaningful review of its decision.
[3] Because “this court cannot affirm the BIA on a ground
upon which it did not rely,” Navas v. INS, 217 F.3d 646, 658
n.16 (9th Cir. 2000), we must remand the cause to the BIA to
clarify the statutory grounds upon which it relied in denying
further review. Accordingly, we grant the petition and remand
the case to the BIA.
GRANTED and REMANDED.