JOAQUIN PENA DE LOS SANTOS V. ERIC HOLDER, JR., No. 11-71998 (9th Cir. 2013)

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FILED JAN 16 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOAQUIN PENA DE LOS SANTOS, Petitioner, No. 11-71998 Agency No. A077-123-105 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 15, 2013 ** Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges. Joaquin Pena De Los Santos, a native and citizen of the Dominican Republic, petitions for review of an order of the Board of Immigration Appeals ( BIA ) dismissing his appeal from an immigration judge s removal order. We * 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). have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand. Because it is unclear whether the agency applied the modified categorical approach to Pena De Los Santos s conviction, we remand the case to the BIA for further proceedings. See United States v. Castillo-Rivera, 244 F.3d 1020, 1022-23 (9th Cir. 2001) (recognizing that the conduct encompassed by section 12021(a)(1) of the California Penal Code may not categorically constitute an aggravated felony); see also 8 U.S.C. § 1101(a)(43)(E)(ii) (including firearms offenses described in 18 U.S.C. § 922(g)(1) in the definition of an aggravated felony); 18 U.S.C. § 922(g)(1) (punishing possession of a firearm by any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year ). In light of this disposition, we decline to address Pena De Los Santos s remaining challenges to the BIA s order. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to reach nondispositive challenges to a BIA order). PETITION FOR REVIEW GRANTED; REMANDED. 2 11-71998

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