Atanda

FILED

NOT FOR PUBLICATION JAN 19 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ADEREMI EMMANUEL ATANDA, No. 07-70005

Petitioner - Appellant, Agency No. A028-329-199

v.

MEMORANDUM *

ERIC J. HOLDER, Attorney General,

Respondent - Appellee.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted December 7, 2011 Seattle, Washington

Before: McKEOWN and TALLMAN, Circuit Judges, and MOSKOWITZ, District Judge.**

Aderemi Emmanuel Atanda (the 'Petitioner') petitions for review of the

Board of Immigration Appeals' ('BIA') decision dismissing his appeal of an order

sustaining the charge of removability and finding the Petitioner ineligible for

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Barry Ted Mosµowitz, United States District Judge for the Southern District of California, sitting by designation. discretionary relief under Section 212(h) of the I.N.A. Reviewing the…

MEMORANDUM **

Aderemi Emmanuel Atanda (the “Petitioner”) petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal of an order sustaining the charge of removability and finding the Petitioner ineligible for discretionary relief under Section 212(h) of the I.N.A. Reviewing the Petitioner’s claims de novo, we grant the petition for review. See Perez-Mejia v. Holder, 663 F.3d 403, 409 (9th Cir.2011) (reviewing de novo an alien’s contention that the government did not meet its burden of proving removability based on an admission).

*624 I.

The immigration judge (“IJ”) and the BIA erred in finding that the Petitioner was sentenced to “a term of at least one year imprisonment” for his forgery convictions and that those convictions therefore constituted an “aggravated felony” rendering the Petitioner removable. See 8 U.S.C. § 1101 (a)(43)(R).

On November 17, 2003, the Petitioner was convicted in the Superior Court of California, Los Angeles County, for five counts of felony forgery in violation of California Penal Code (“C.P.C.”) § 470(d), one count of grand theft by embezzlement in violation of C.P.C. § 487(a), three counts of failing to file an…

dissenting:

I respectfully dissent. The issue in this case is whether Atanda was sentenced to a term of imprisonment of “at least one year” for his five forgery convictions for which he went to prison, not the county jail. 1 See 8 U.S.C. § 1101 (a)(43)(R). During the pleading stage of his immigration proceeding, Atanda admitted he was so sentenced. That should be the end of it. Under our recent decisions in Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir.2011), and Pagayon v. Holder, 675 F.3d 1182 , 2011 WL 6091276 (9th Cir.2011), we should hold Atanda to his judicial admission and deny his petition for review.

When an alien makes an admission at the pleading stage of his immigration proceeding, and the Immigration Judge (“IJ”) accepts the admission, “no further evidence concerning the issues of fact admitted or law conceded is necessary.” Perez-Mejia, 663 F.3d at 414 (citing 8 C.F.R. § 1240.10 (c)). If the IJ is not “satisfied” with an admission, or if the admission leaves material issues in dispute, “the removal hearing enters an evidentiary stage during which the IJ receives admissible evidence on any issue not resolved to his satisfaction at the pleading stage.” Id. at 411 .…