Jateen Bhatt v. Eric Holder, Jr.

554 F. App'x 673

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 14, 2014
• Docket: 12-71667
• Status: Unpublished

Opinion

MEMORANDUM **

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 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, 129 S.Ct. 2294, 174 L.Ed.2d 22 (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, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (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 contemplat ed by the § 212(h) statutory bar. After the BIA’s decision, this court held in Neg-rete-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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.