Talreja v. Gonzales , 141 F. App'x 184 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2455
SUNIL MOHANDAS TALREJA,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A44-614-448)
Submitted: July 29, 2005 Decided: August 19, 2005
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Nana Babington, Falls Church, Virginia, for Petitioner. Peter D.
Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright,
Assistant Director, Song Park, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sunil Mohandas Talreja, a native and citizen of India,
petitions for review of a decision of the Board of Immigration
Appeals (Board) finding him subject to removal under 8 U.S.C.
§ 1227(a)(2)(A)(i) (2000), for having been convicted of a crime
involving moral turpitude for which a sentence of one year or
longer can be imposed, that is committed within five years of the
date of his admission.
The Government has the burden of proving to the
immigration judge by clear and convincing evidence that “in the
case of an alien who has been admitted to the United States, the
alien is deportable. No decision of deportability shall be valid
unless it is based upon reasonable, substantial, and probative
evidence.” 8 U.S.C. § 1229a(c)(3)(A) (2000); see 8 C.F.R.
§ 1240.8(a) (2005) (“A[n alien] charged with deportability shall be
found to be removable if the Service proves by clear and convincing
evidence that the respondent is deportable as charged”). The alien
bears the burden of showing “by clear and convincing evidence, that
the alien is lawfully present in the United States pursuant to a
prior admission.” § 1229a(c)(2)(B) (2000). Thus, this court
considers whether substantial evidence supports the decision of the
immigration judge, as affirmed by the Board, that the Department of
Homeland Security established Talreja’s removability by clear and
convincing evidence, and that Talreja did not bear his burden of
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establishing a prior admission. Nakamoto v. Ashcroft, 363 F.3d
874, 881-82 (9th Cir. 2004).
Talreja claimed that he was admitted in 1985, and
therefore, the 1998 crime was not within five years of his
admission. However, Talreja failed to prove an admission in 1985,
and the Attorney General did establish entry in 1994, within five
years of the crime involving moral turpitude. Therefore, we hold
that substantial evidence supports the Board’s finding that Talreja
is removable as charged. Talreja’s complaint that the immigration
judge erred in failing to act on his request for voluntary
departure is irrelevant as the Board found him ineligible for
voluntary departure under 8 U.S.C. § 1229c(b)(1)(B) (2000).
Therefore, we deny the petition for review. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
PETITION DENIED
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