NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORBERTO MORAZA RUIZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-70721

Agency No. A044-127-109

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 4, 2021

Pasadena, California

Before: SILER,

** HURWITZ, and COLLINS, Circuit Judges.

Petitioner seeks review of a decision of the Board of Immigration Appeals

(BIA) dismissing an appeal from an order of removability entered by an 

Immigration Judge. We have jurisdiction under 8 U.S.C. § 1252, and we grant the 

petition. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

APR 1 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-70721

Petitioner claims he was not “convicted” of two crimes involving moral 

turpitude so as to allow his removal under 8 U.S.C. § 1227(a)(2)(A)(ii). Because

the sentence on one of the state-law violations forming the basis for his removal 

was stayed and unspecified, Petitioner asserts that violation cannot constitute a 

“conviction” under 8 U.S.C. § 1101(a)(48). See Retuta v. Holder, 591 F.3d 1181, 

1182–83 (9th Cir. 2010) (looking to the definition of “conviction” in § 1101(a)(48) 

to determine whether alien was “convicted” of crime under § 1227(a)(2)(B)(i)). 

Under § 1101(a)(48), a “conviction” includes dispositions in which a formal 

judgment of guilt has been withheld provided that (i) there has been a finding of 

guilt or admission of sufficient facts for a finding of guilt, and (ii) “some form of 

punishment, penalty, or restraint on the alien’s liberty” has been imposed. 8 

U.S.C. § 1101(a)(48)(A). Although a stayed term of incarceration satisfies 

§ 1101(a)(48)(A)(ii), see Retuta, 591 F.3d at 1186, the record is unclear as to 

whether Petitioner was sentenced to any incarceration for his violation of 

California Penal Code § 422(a). Petitioner’s criminal records indicate that any 

sentence imposed for that violation was stayed pursuant to California Penal Code

§ 654 and not made conditional on compliance with another order from the state 

trial court, and there is no indication that any such stayed sentence was for a term 

of incarceration. See Retuta, 591 F.3d at 1188 (“Our reading of § 1101(a)(48) 

leads us to conclude that the definition of ‘conviction’ does not include criminal 
3 19-70721

judgments whose only consequence is a suspended non-incarceratory sanction.”)

(emphasis added)). We therefore agree with Petitioner that he was not 

“convicted” for purposes of 8 U.S.C. § 1227(a)(2)(A)(ii) on the § 422(a) count.

We reject the government’s contention that an incarceratory sentence 

imposed on another count is imputed pursuant to § 654(a) to the remaining counts

for which the sentences have been stayed. See, e.g., People v. Alford, 103 Cal. 

Rptr. 3d 898, 900, 905 (Cal. App. 2010); Atanda v. Holder, 466 F. App’x 622, 624 

(9th Cir. 2012). Because we cannot assume that the state trial court sentenced 

Petitioner to a term of incarceration, stayed or not, the government has not met its 

“burden [to] establish[] by clear and convincing evidence that, in the case of an 

alien who has been admitted to the United States, the alien is deportable.” 8 

U.S.C. § 1229a(c)(3)(A).

1

PETITION GRANTED; REMANDED to the BIA. Petitioner’s motion 

for judicial notice, DKT. 16, is DENIED. 

1 Ruiz’s counsel conceded below that § 422(a) is a “crime involving 

moral turpitude.” But, conceding that a certain statutory violation constitutes a 

“crime involving moral turpitude” is different from conceding that Ruiz was 

“convicted” of that statutory violation under 8 U.S.C. § 1227(a)(2)(A)(ii).