Realon v. Holder , 396 F. App'x 421 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RODERICK RUGNAO REALON, a.k.a. No. 04-72780
Roderick Realon, a.k.a. Ricky Realon,
Agency No. A038-980-434
Petitioner,
v. MEMORANDUM *
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