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Case Number:	Date Filed:
97-70473	06/06/00




Petitioner,                                           No. 97-70473

v.                                                    INS No.
SERVICE,                                              OPINION

On Petition for Review of a Decision of the
Board of Immigration Appeals

Submitted April 25, 20001
San Francisco, California

Filed June 6, 2000

Before: Betty B. Fletcher, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Hawkins


1 The panel finds this case appropriate for submission without oral argu-
ment pursuant to Fed. R. App. P. 34(a)(2).


Amos Lawrence, San Francisco, California, for the petitioner.

Loreto S. Geisse, Office of Immigration Litigation, Depart-
ment of Justice, Washington, D.C., for the respondent.




HAWKINS, Circuit Judge:

We must decide whether we have jurisdiction over the mer-
its of this petition for review. To do so, we must determine
whether the underlying convictions amount to aggravated fel-
onies or crimes of moral turpitude within the meaning of the
transitional rules of the Illegal Immigration Reform and
Immigrant Responsibility Act ("IIRIRA"), Pub. L. 104-208,
110 Stat. 3009 (1996).


Jose Marcelo Alberto-Gonzalez ("Alberto-Gonzalez")
entered the United States on about August 18, 1965 when he
was four years old. He was convicted of burglary in June and
October of 1986 and was placed in deportation proceedings.
The Immigration Judge granted his request for waiver of
deportation under section 212(c) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. S 1182(c) (1987).

On June 18, 1991, he was convicted for receiving stolen
property. The record does not make clear the length of his
sentence for this conviction. On April 20, 1994, he was sen-
tenced to 79 days in prison for felony burglary, for which he
had previously pled guilty. On April 22, 1994, the INS issued
an Order to Show Cause charging Alberto-Gonzalez with
being deportable for having committed two crimes of moral
turpitude in violation of section 241(a)(2)(A)(ii) of the INA,
8 U.S.C. S 1227(a)(2)(A)(ii). The two crimes listed in the
Order to Show Cause were the 1991 conviction for receipt of
stolen property and the 1994 conviction for felony burglary.

After a hearing before an Immigration Judge ("IJ"),
Alberto-Gonzalez admitted the allegations contained in the
Order to Show Cause and requested a waiver of deportation
under section 212(c). On May 10, 1996, the IJ denied the


waiver. Alberto-Gonzalez appealed to the BIA, claiming that
the IJ abused her discretion in denying the waiver. During the
pendency of this appeal, IIRIRA and the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132,
110 Stat. 1214 (1996), were enacted. The BIA dismissed
Alberto-Gonzalez's appeal on March 28, 1997, finding that he
was statutorily ineligible for a section 212(c) waiver under
section 440(d) of AEDPA.

[1] Alberto-Gonzalez appeals the BIA's decision. It is clear
that the BIA erred in holding that section 212(c) relief was
unavailable. In Magana-Pizano v. INS, 200 F.3d 603, 613-14
(9th Cir. 1999), we held that "AEDPA's S 440(d) bar of dis-
cretionary relief previously afforded by INA S 212(c) should
not apply to aliens whose deportation proceedings were pend-
ing when AEDPA became law." Section 212(c) relief is avail-
able to Alberto-Gonzalez because AEDPA's effective date is
April 24, 1996 and he was placed in deportation proceedings
in 1994. Before we can reach the merits, however, we must
determine whether we have jurisdiction.2 


[2] We have jurisdiction to determine whether we have
jurisdiction over the merits of this petition for review. See
Aragon-Ayon v. INS, 2000 WL 266683 *1 (9th Cir. March 13,
2000); Coronado-Durazo v. INS, 123 F.3d 1322, 1323 (9th
Cir. 1997).

Section 309(c)(4)(G) of IIRIRA provides in relevant part:
2 The government initially contended that we have no jurisdiction over
this appeal under section 309(c)(4)(G) of IIRIRA because Alberto-
Gonzalez committed an aggravated felony. On April 14, 2000, the govern-
ment submitted an "Expedited Motion to Remand " in which it withdrew
its argument that this court lacks jurisdiction over the appeal. We address
the jurisdictional issues nonetheless, as they concern our subject matter


      [T]here shall be no appeal permitted in the case of an
      alien who is inadmissible or deportable by reason of
      having committed a criminal offense covered in sec-
      tion . . . 241(a)(2)(A)(iii) . . . of the Immigration and
      Nationality Act . . . or any offense covered by sec-
      tion 241(a)(2)(A)(ii) of such Act . . . for which both
      predicate offenses are, without regard to their date of
      commission, otherwise covered by section
      241(a)(2)(A)(i) . . . .3

Section 241(a)(2)(A)(iii) covers aggravated felonies and sec-
tion 241(a)(2)(A)(ii) covers crimes of moral turpitude. We
have jurisdiction over the merits of this case, therefore, if
Alberto-Gonzalez did not commit either an aggravated felony
or two crimes of moral turpitude, as defined by INA
S 241(a)(2)(A)(i).

A. Crimes of Moral Turpitude

[3] Section 241(a)(2)(A)(ii) provides that "[a]ny alien who
at any time after admission is convicted of two or more
crimes of moral turpitude . . . is deportable." At the time
deportation proceedings were initiated against Alberto-
Gonzalez, section 241(a)(2)(A)(i) further provided, in perti-
nent part, that "[a]ny alien who (I) is convicted of a crime
involving moral turpitude . . . and (II) either is sentenced to
confinement or is confined therefore in a prison or correc-
tional institution for one year or longer."4
3 The transitional rules apply to this case because the INS initiated
deportation proceedings prior to April 1, 1997 and a final order of deporta-
tion was filed after October 30, 1996.
4 AEDPA amended section (II) to render aliens deportable if the crime
for which they were sentenced carried a potential sentence of one year or
more. This amendment is not pertinent here, however, because AEDPA
expressly limited it to proceedings initiated after its effective date, April
24, 1996. AEDPA S 435(b); see Perez v. INS, 116 F.3d 405, 408 (9th Cir.


[4] Because Alberto-Gonzalez was only sentenced to 79
days for the burglary conviction, the convictions are not both
covered by section 241(a)(2)(A)(i). Our jurisdiction is there-
fore not eliminated by virtue of the crimes of moral turpitude.
We retain jurisdiction over this appeal unless Alberto-
Gonzalez committed an aggravated felony.5 

B. Aggravated Felony

[5] An aggravated felony is defined in relevant part as a
"theft offense (including receipt of stolen property) or bur-
glary offense for which the term of imprisonment[is] at least
one year."6 8 U.S.C. S 1101(a)(43)(G). The government con-
tends that the relevant term of imprisonment is the potential
sentence that the judge could have imposed. Alberto-
Gonzalez argues that the relevant term of imprisonment is the
actual sentence imposed.

Although this is an issue of first impression in this Circuit,
we are not the first court to consider this issue. United States
v. Graham, 169 F.3d 787, 789-90 (3d Cir.), cert. denied, 120
S. Ct. 116 (1999), held that the phrase "for which the term of
imprisonment [is] at least one year" means the actual sentence
imposed by the judge. The Graham court reasoned that the
definition of "term of imprisonment" in section 322 of
IIRIRA suggests that "term of imprisonment" refers to the
actual sentence. Section 322 provides that:

      [a]ny reference to a term of imprisonment or a sen-
      tence with respect to an offense is deemed to include
5 Alberto-Gonzalez may still be deportable under section
241(a)(2)(A)(ii) for having committed two crimes of moral turpitude
because this subsection applies regardless of the length of conviction. 8
U.S.C. S 1227(a)(2)(A)(ii).
6 The word "is" was inadvertently left out of the statute. See, e.g., United
States v. Tejeda-Perez, 199 F.3d 981, 982 (8th Cir. 1999); United States
v. Graham, 169 F.3d 787, 790 (3d Cir. 1999).


      the period of incarceration or confinement ordered
      by a court of law, regardless of any suspension of the
      imposition or execution of that imprisonment or sen-
      tence in whole or in part.

S 322, codified at 8 U.S.C. S 1101(a)(48)(B) (cited in Gra-
ham, 169 F.3d at 790).7 This language indicates that the sen-
tence ordered by the judge is the "term of imprisonment." See
Graham, 169 F.3d at 790.

The Graham court also noted that prior to the 1996 amend-
ments, aggravated felony was defined as a "theft offense . . .
for which the term of imprisonment imposed (regardless of
any suspension of such imprisonment) is at least five years."
Id. The Graham court commented that there is no evidence of
congressional intent to change from this reliance on the actual
sentence imposed.8 In the absence of any intent to the con-
trary, the Graham court concluded that the old definition
should apply. Id.

Further, while Congress used the phrase "for which the
term of imprisonment is one year" in some sections of section
1101(a)(43), in other sections, Congress explicitly provided
that the term to consider is the sentence that may be
imposed. Compare SS 1101(a)(43)(F), (P), (R), (S) with
SS 1101(a)(43)(J), (T); see also Graham, 169 F.3d at 790-91.
Moreover, in the two subsections of section 1101(a)(43)
where Congress employed the language "may be imposed,"
Congress seems to have carefully avoided use of the phrase
"term of imprisonment." See S 1101(a)(43)(J) ("for which a
7 We do not consider here whether a suspended portion of a sentence
should be considered part of the "term of imprisonment."
8 In Graham, the alien was arguing that the "term of imprisonment"
should refer to the minimum sentence that could be imposed. 169 F.3d at
789-90. The government here is arguing that the "term of imprisonment"
should refer to the maximum sentence imposed. There does not appear to
be any functional or analytical difference between the two arguments.


sentence of one year imprisonment or more may be
imposed"); S 1101(a)(43)(T) ("for which a sentence of 2 years
imprisonment or more may be imposed"). At least in this sub-
section, therefore, Congress appears to have used the phrase
"term of imprisonment" to specifically refer to the actual sen-
tence imposed. This precise distinction implies that Congress
was aware of the difference between the statutory maximum
penalty and the sentence actually imposed. See also Legacy
Emanuel Hosp. and Health Ctr. v. Shalala, 97 F.3d 1261,
1265 (9th Cir. 1996) (noting that use of different language by
Congress in statute creates a presumption that it intended the
terms to have different meanings).

[6] Thus, we conclude that Congress intended the phrase
"for which the term of imprisonment [is] one year or more"
in section 1101(a)(43)(G) to refer to the actual sentence
imposed by the trial judge.

[7] Alberto-Gonzalez was sentenced to 79 days for his bur-
glary conviction. The burglary conviction is therefore not an
aggravated felony.

[8] There is no evidence in the record of the length of
Alberto-Gonzalez's sentence for receipt of stolen property.
The Order to Show Cause states that Alberto-Gonzalez was
convicted under section 496.1 of the California Penal Code.
Section 496.1 provides for punishment of "not more than one
year." Cal. Penal Code S 496(a) (1999). 9 The only way
Alberto-Gonzalez's conviction for receipt of stolen property
was an aggravated felony as defined in section
1101(a)(43)(G) was if the sentence was exactly one year. Nei-
ther of the parties presented direct evidence as to the length
of Alberto-Gonzalez's sentence. In its "Expedited Motion to
Remand," submitted on April 14, 2000, however, the govern-
ment withdrew its contention that Alberto-Gonzalez was con-
9 The 1992 amendment changed the designation from 496.1 to 496(a).


victed of an aggravated felony and conceded jurisdiction.10
Because we have no evidence before us to suggest that

Alberto-Gonzalez's conviction was not for less than one year,
we retain jurisdiction over the merits of this petition for


[9] In light of Magana-Pizano, 200 F.2d at 613-14, we
REMAND to the BIA to consider whether the IJ erred in

denying Alberto-Gonzalez a waiver of deportation under sec-
tion 212(c).

10 Although the government cannot concede the question of our subject
matter jurisdiction, we can use the government's motion as evidence of the
length of Alberto-Gonzalez's sentence.