Realon, et al v. Holder, No. 04-72780 (9th Cir. 2010)

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FILED SEP 23 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RODERICK RUGNAO REALON, a.k.a. Roderick Realon, a.k.a. Ricky Realon, No. 04-72780 Agency No. A038-980-434 Petitioner, MEMORANDUM * v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Roderick Rugnao Realon, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). de novo questions of law, Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126 (9th Cir. 2007), and we grant the petition for review and remand for further proceedings. The BIA determined that Realon was ineligible for cancellation of removal because his conviction under Cal. Veh. Code § 10851(a), was categorically an aggravated felony theft offense. We subsequently held that Cal. Veh. Code § 10851(a) is not categorically a theft offense. See United States. v. Vidal, 504 F.3d 1072, 1074-75 (9th Cir. 2007) (en banc). The BIA did not conduct a modified categorical analysis to ascertain whether the record of conviction sufficiently establishes that Realon was convicted of the generic theft offense. See Sandoval-Lua, 499 F.3d at 1132. We therefore remand to the BIA in order for it to make this determination in the first instance. See Fregozo v. Holder, 576 F.3d 1030, 1039 (9th Cir. 2009). PETITION FOR REVIEW GRANTED; REMANDED. 2 04-72780

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