Rene Tyh Tokpan 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NOT FOR PUBLICATION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
RENE TYH TOKPAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-73176
Agency No. A098-152-422
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 6, 2012
San Francisco, California
Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.
Rene Tokpan petitions for review of the Board of Immigration Appeals’
decision affirming the Immigration Judge’s denial of Tokpan’s motion to reopen.
We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
FILED
DEC 03 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
We review denial of a motion to reopen for abuse of discretion. Iturribarria
v. INS, 321 F.3d 889, 894 (9th Cir. 2003). Tokpan was convicted of stalking under
California law and was ordered removed under 8 U.S.C. § 1227(a)(2)(E)(i).
Tokpan argues on appeal that because his conviction was based on a plea of nolo
contendere, it was insufficient to qualify as a conviction under § 1227.
“Conviction” is defined in 8 U.S.C. § 1101(a)(48)(A) as
a formal judgment of guilt of the alien entered by a court, or if
adjudication of guilt has been withheld, where—(i) a judge or jury has
found the alien guilty or the alien has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to warrant a finding of
guilt, and (ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed. (emphasis
added).
Here, the California Superior Court entered a formal judgment of guilt
against Tokpan for stalking, after he pleaded nolo contendere. Under § 1101,
where there is a judgment of guilt, that suffices as a conviction for federal purposes
regardless of whether that judgment of guilt is based upon a plea of nolo
contendere. Tokpan was convicted on his plea of stalking, and the BIA did not
abuse its discretion in denying his motion to reopen. We need not and do not reach
any of Tokpan’s other arguments.
PETITION DENIED.

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