On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098-392-551
The opinion of the court was delivered by: Goodwin, Circuit Judge
Argued and Submitted April 7, 2010-Seattle, Washington
Before: Alfred T. Goodwin, Michael Daly Hawkins and N. Randy Smith, Circuit Judges.
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. Petitioner 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 during 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.
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.
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 supported 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 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 Petitioner 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 ...