JHATEEN B. BHATT, AKA Jateen Bipin Bhatt v. ERIC HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JHATEEN B. BHATT, AKA Jateen Bipin
Bhatt,
Petitioner,
v.
ERIC HOLDER, Jr., Attorney General,
Respondent.
No. 12-71667
Agency No. A099-568-616
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 8, 2014
San Francisco, California
Before: SCHROEDER, LIPEZ ** , and CALLAHAN, Circuit Judges.
Jhateen Bhatt, a native and citizen of Tanzania, challenges the decision of
the Board of Immigration Appeals ("BIA"). The BIA found him removable based
on convictions for grand theft and forgery, and statutorily ineligible for a waiver of
FILED
MAY 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Kermit V. Lipez, of the United States Court of
Appeals for the First Circuit, sitting by designation.

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inadmissibility under Section 212(h) of the Immigration and Naturalization Act
("INA"), 8 U.S.C. § 1182(h).
The BIA did not err in finding that Bhatt's conviction for forgery under
California Penal Code § 470(b) was an aggravated felony because it was an offense
involving "fraud or deceit in which the loss to the victim . . . exceeds $10,000." 8
U.S.C. § 1101(a)(43)(M)(i). The jury's findings included a finding that the forgery
caused a loss greater than $200,000. Under the circumstances of this case, that
jury finding satisfies the government's burden to prove the circumstances of the
crime by clear and convincing evidence. See Nijhawan v. Holder, 557 U.S. 29, 41-
43 (2009).
Because we agree that the forgery conviction is an aggravated felony, we do
not decide whether Bhatt's grand theft conviction under California Penal Code
§ 487(a), premised on a theory of theft by false pretenses, is a "theft offense"
aggravated felony, 8 U.S.C. § 1101(a)(43)(G), under the modified categorical
approach of Descamps v. United States, 133 S. Ct. 2276 (2013). Also, we note that
the government did not argue the grand theft issue in its briefing.
The BIA held that Bhatt was ineligible for a waiver of inadmissibility
under INA § 212(h), 8 U.S.C. § 1182(h), because his adjustment of status after
entering the country was an "admission" as contemplated by the § 212(h) statutory
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bar. After the BIA's decision, this court held in Negrete-Ramirez v. Holder that
such an adjustment of status is not an "admission" under § 212(h). 741 F.3d 1047
(9th Cir. 2014). Because the BIA did not consider Bhatt to be statutorily eligible
for a waiver of inadmissibility, it did not decide whether he merited further relief.
We thus must remand for consideration of possible relief given that the § 212(h)
bar does not apply.
The petition is therefore DENIED with respect to the forgery conviction,
and GRANTED with respect to statutory eligibility for a waiver of inadmissibility
under INA § 212(h). We REMAND for further proceedings consistent with this
opinion. Each side to bear its own costs.
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