OPINION
Jose Guadalupe Lozano Arredondo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (BIA) dismissal of his appeal from an Immigration Judge’s (IJ’s) decision denying cancellation of removal. Petitioner challenges the BIA’s conclusion that he was statutorily ineligible for cancellation of removal because of his 1997 conviction for petty theft under Idaho Code Ann. § 18-2408(3).
The IJ had grounded his denial of cancellation of removal on a completely different reason: Petitioner’s mea culpa during his hearing that when he was 21 years old, he had sexual intercourse with a thirteen-year-old girl, which resulted in the birth of the oldest of his three United States citizen children. Thus, Petitioner admitted to facts amounting to statutory rape.
Both grounds relied upon by the IJ (the statutory rape) and by the BIA (the petit theft) present difficulties which require that the case be remanded to the BIA for the BIA to decide which of several statutеs are applicable to this removal case, and then to enter an appropriate order.
FACTUAL BACKGROUND
Petitioner enterеd the United States on August 17, 1990, without being legally admitted or paroled. Fifteen years later, the Department of Homeland Security served him with а notice to appear, charging him under 8 U.S.C. § 1182(a)(6)(A)(i), as a removable alien. Petitioner applied for cancellation of removal under 8 U.S.C. § 1229(b).
Petitioner testified in his application hearing on February 8, 2007. He admitted before the IJ facts that might have supported a prosecution under California law for statutory rape. He was never prosecuted, however, and never convictеd of any offense in connection with his conjugal relations with the teenage mother. He later fathered at least two more сhildren, born in the United States, with a different mother. All three children are receiving Medicaid, and he asserted that they would suffer hardship if he were removed. The IJ did not reach the hardship question, and we will not reach it now.
Petitioner additionally admitted that he had been convicted of petty theft in Idaho in April 1997, and served 64 days in jail and paid a fine of $215.50, In an oral decision, the IJ recited that an alien can apply for permanent residence and cancellation of removal if he can show four prerequisites: (1) “he has been physically present in the United States for the last 10 years, and the stop-time rule that applied would be from July 21, 2005,” back to July 21, 1995; (2) “during that periоd ... he has been a person of good moral character;” (3) “he has not been convicted of specified criminal offense[s];” and (4) “his removal would result in exceptional and extremely unusual hardship to a parent, spouse, or child who is or are citizens of the United States or who is or are lawful *1319 permanent residents of the United States.” See 8 U.S.C. § 1229b(b)(l).
The IJ noted that the government had stipulated that Petitioner had “the necessary physicаl presence.” Petitioner also qualified by having “three United States citizen children,” although his current wife “is in the United States illegally, without status.” Thе IJ additionally found that Petitioner had “not been convicted of the specified criminal offenses under the statute that would render him inеligible.”
Nonetheless, the IJ found from the admissions made by Petitioner that he had failed to prove that he was of good moral character. That finding is not surprising, on general principles. But the question, however, is not easily answered by recourse to general princiрles.
Petitioner correctly argues that his mea culpa revealing a possible statutory rape does not constitute a conviction that would disqualify him for discretionary relief under 8 U.S.C. § 1182(a)(2). He further argues, possibly with merit, that his Idaho shoplifting conviction is time barred and not founded upon a statute carrying the requisite term of inсarceration.
The BIA denied Petitioner’s appeal, without addressing the statutory consequences of Petitioner’s admission of fаcts which could have supported a timely prosecution under California Penal Code § 261.5(d), criminalizing statutory rape. The BIA based its dismissаl of the appeal solely on Petitioner’s petty theft conviction under Idaho Code Ann. § 18-2408(3), a crime involving moral turpitude, punishablе by an imprisonment term of one year. See 8 U.S.C. § 1227(a)(2)(A)®. Therefore, the BIA determined that Petitioner was “statutorily ineligible for cancellation of removal.”
DISCUSSION
We are faced with an IJ decision based primarily on the alien’s uncharged, but admitted, statutory rape. This decision was аppealed to the BIA, which did not affirm the IJ’s decision, but instead, dismissed the appeal because of Petitioner’s Idaho petty theft conviction. However, the BIA did not discuss the problem that the Idaho conviction was recorded in 1997, more than five years after Petitioner entеred this country. 1 See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Another difficulty with the Idaho conviction is that the maximum sentence under the Idaho law was one year, which did not “excеed one year,” the language used in the petty crime exception to crimes described in 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
“The BIA does have the power to conduct a de novo review of the record, to make its own findings, and independently to determine the legal sufficiency of thе evidence.”
Abovian v. INS,
In this case, the BIA did not reveal how its treatment of the Idaho conviction
*1320
conformed to the definitions and exceptions spelled out in 8 U.S.C. § 1227(a)(2)(A)© ' or 8 U.S.C. § 1182(a)(2)(A)(ii). Specifically, the BIA does not address the аpplicability, if any, of the exceptions outlined in the respective statutes regarding crimes involving moral turpitude (i.e., the petty оffense exception and time period limitations).
See In re Gonzalez-Silva,
24 I. & N. Dec. 218, 219 (BIA 2007) (reaffirming its previous holding that “the ‘description’ of the category of оffenses encompassing crimes involving moral turpitude also includes the exception” (quotation marks and citation omitted));
see also Vasquez-Hernandez v. Holder,
Becausе “this court cannot affirm the BIA on a ground upon which it did not rely,”
Navas v. INS,
GRANTED and REMANDED.
Notes
. The conviction did occur within the ten year "stop time” period referred to by the IJ.