Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

MEMORANDUM^* 

Rainer Wilhelm Goldberg appeals the district court's order denying his petition for a writ of habeas corpus. Goldberg filed the habeas petition after the Board of Immigration Appeals ("BIA") dismissed his appeal from an order of exclusion entered by an Immigration Judge ("IJ"). Goldberg contends that the district court erred by holding that the lack of notice to the Immigration and Naturalization Service ("INS") invalidated a Judicial Recommendation Against Deportation ("JRAD") granted to Goldberg. We do not reach this issue because we agree with the district court's holding that Goldberg's admission of foreign convictions constitutes a sufficient independent basis for excluding him pursuant to 8 U.S.C. § 1182(a) (9). We affirm.

DISCUSSION

This court reviews de novo a district court's denial of a petition for a writ of habeas corpus. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988). This court also reviews de novo BIA determinations that are questions of law. Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir. 1987). The BIA's factual determinations must be upheld if supported by reasonable, substantial or probative evidence. Gill v. INS, 666 F.2d 390, 392 (9th Cir. 1982).

II. Goldberg's Admission of Foreign Convictions

An alien may be excluded from the United States if the alien has been convicted of a crime of moral turpitude or has admitted committing such a crime. 8 U.S.C. § 1182(a) (9) (1982). The BIA found that Goldberg had been convicted in Germany of several crimes involving moral turpitude. The BIA also determined that these convictions rendered Goldberg excludable under 8 U.S.C. § 1182(a) (9). The district court held that the BIA's finding and determination were supported by substantial evidence in the record. We agree.

Goldberg has admitted in sworn testimony that he was convicted of theft, embezzlement, fraud, perpetrated fraud, and tax evasion in the Federal Republic of Germany. Goldberg does not challenge the accuracy of facts contained in the records of conviction. Therefore, sufficient evidence exists for the use of Goldberg's foreign convictions to support a finding of excludability. See In re Bader, 17 I. & N. Dec. 525, 527 (BIA 1980). We note that this inquiry would have been unnecessary had the record of conviction been properly certified under 8 C.F.R. 287.6.

Goldberg contends that the JRAD precludes a finding of excludability. We do not reach this issue because Goldberg's foreign convictions provide an independent basis for his exclusion. Nor do we decide whether or not JRAD applies to exclusion cases.

The issue of waiver of deportation is not properly before us because the issue had not been appealed to the BIA and had not been mentioned to the district court or in the briefs before this court.

AFFIRMED.