Duarte-Rodriguez, et al v. Holder, No. 04-73932 (9th Cir. 2009)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 16 2009 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT CUAUHTEMOC DUARTERODRIGUEZ, No. 04-73932 Agency No. A017-318-569 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 14, 2009 ** Before: SILVERMAN, RAWLINSON, and CLIFTON, Circuit Judges. Cuauhtemoc Duarte-Rodriguez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s removal order. We have jurisdiction under 8 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). DL/Research U.S.C. § 1252. We review de novo the agency s determination of questions of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations. See Morales-Garcia v. Holder, 567 F.3d 1058, 1061 (9th Cir. 2009). We grant the petition for review and remand. The agency concluded that Duarte-Rodriguez was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, one of which was receipt or possession of stolen property, in violation of California Penal Code § 496(a). Subsequent to the BIA s order, we held that a conviction under § 496(a) is not categorically a crime involving moral turpitude. See Castillo-Cruz v. Holder, 581 F.3d 1154, 1159-61 (9th Cir. 2009). We therefore grant the petition for review and remand for the agency to address in the first instance whether Duarte-Rodriguez s conviction for receipt or possession of stolen property qualifies as a crime involving moral turpitude under the modified categorical approach. See Morales-Garcia, 567 F.3d at 1066-67. Each party shall bear its own costs for this petition for review. PETITION FOR REVIEW GRANTED; REMANDED. DL/Research 2 04-73932

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