Erwin Vivar-Flores v. Eric Holder, Jr.

MEMORANDUM

Although the law prescribed a sentence of two, three or five years imprisonment for second-degree robbery, the crime of which Vivar-Flores was convicted, the court on appeal must look to the actual sentence entered when removal proceedings are initiated under section 287(a)(2)(A)(iii) of the INA. 8 U.S.C. § 1227 (a)(2)(A)(iii). Here no actual sentence was imposed because the trial court suspended imposition of sentence and placed Flores directly on probation.

We must again remand. Although Flores was found guilty of second-degree robbery, more was required. The question under section 237(a)(2)(A)(iii) is a combination of the conduct and the sentence actually imposed. 8 U.S.C. §§ 1101 (a)(43)(G), 1227(a) (2) (A) (iii).

The BIA merely looked at the offence and the sentence authorized. It was required to consider what term of imprisonment was imposed.' It need not reconsider whether a conviction under state law is a removable offense. In light of existing precedents, the BIA’s decision on that question was erroneous. We do not ignore the definition of second-degree robbery. We merely hold that the conduct and the sentence imposed are the combined controlling factors.…