Vergara-Ramirez, et al v. Holder, No. 07-70992 (9th Cir. 2011)

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FILED MAR 25 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT EMILIO VERGARA-RAMIREZ, Petitioner, No. 07-70992 Agency No. A092-505-537 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2011 ** Before: FARRIS, O SCANNLAIN, and BYBEE, Circuit Judges. Emilio Vergara-Ramirez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals order dismissing his appeal from an immigration judge s removal order and denying his motion to reopen. We have * 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). jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review and remand for further proceedings. Vergara-Ramirez does not challenge the agency s determination that he is removable under 8 U.S.C. §§ 1227(a)(2)(A)(i) and (ii). The agency determined that Vergara-Ramirez s 1993 conviction for violating California Penal Code § 288(c) was an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) that rendered him ineligible for relief under former section 212(c), 8 U.S.C. § 1182(c) (repeal effective April 1, 1997). Subsequent to the agency s decision in this case, we held in United States v. Castro, 607 F.3d 566, 569-70 (9th Cir. 2010), that a conviction under California Penal Code § 288(c) does not categorically constitute sexual abuse of a minor. We therefore grant the petition for review and remand to the agency for reconsideration in light of Castro. PETITION FOR REVIEW GRANTED; REMANDED. 2 07-70992

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