Erwin Stuardo Vivar-Flores v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERWIN STUARDO VIVAR-FLORES,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-72526
Agency No. A029-249-620
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 5, 2012
San Francisco, California
Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.
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 237(a)(2)(A)(iii) of the INA. 8
FILED
NOV 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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. The inquiry is to
the term of prison actually imposed rather than what is authorized by statute.
Under California law, a court ordering probation has the option of “leaving a
defendant unsentenced and placing him on probation, or . . . sentencing him and
thereafter placing him on probation.” Patel v. INS, 542 F.2d 796, 798 (9th Cir.
1976). It is, therefore, imperative to an analysis of punishments under California
law “to focus closely on the precise nature of the sentence, i.e., whether prior to
granting probation imposition of sentence was suspended, as in the first alternative,

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or execution of the sentence was suspended, as in the second alternative.” Id. at
798-99. If a trial court chooses to suspend the imposition of a sentence, it is
prohibited from specifying and pronouncing a term of imprisonment from the
statutory range. Cal. Penal Code § 1170(b). Here, no term of imprisonment was
actually imposed on Flores because the trial court suspended the imposition of his
sentence.
We could merely grant the petition for review and reverse the BIA decision
with instructions to vacate the order of removal and terminate removal
proceedings. We remand instead to permit the BIA to consider the matter in its
proper posture in the first instance.
REVERSED AND REMANDED.

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