NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORBERTO MORAZA RUIZ
,

P etitioner
,

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 a n order of removability entered by an
Immigration Judge . We have jurisdiction under 8 U.S.C. § 12 5 2, 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 APPEALS2 19

- 70721

Petitioner claim s 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

w as stayed and unspecified
, Petitione r 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” include s 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 118 6
, t he reco rd 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

. S

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

leads us to conclude that the definition of ‘conviction’ does not include criminal3 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 B IA

. 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, c onceding that a certain statutory violation constitutes a “crime involving moral turpitude” is different from conceding that Ruiz was “convicted” of that statut ory violation under 8 U.S.C. § 1227(a)(2)(A)(ii).