Tolosa v. Holder , 362 F. App'x 833 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JESUS RAMON TOLOSA, No. 06-73854
Petitioner, Agency No. A079-522-035
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Jesus Ramon Tolosa, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for cancellation of removal.
*
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).
IH/Research
We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for
review and remand.
In concluding that Ramon Tolosa is statutorily ineligible for cancellation of
removal based on his 1994 conviction for violating section 11352 of the California
Health and Safety Code, the agency did not have the benefit of our decision in
Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1132 (9th Cir. 2007), where we held
that an alien seeking to establish that a criminal conviction under a divisible statute
does not bar cancellation of removal under the modified categorical analysis may
do so by pointing to inconclusive conviction records.
We remand for the agency to reconsider Ramon Tolosa’s eligibility for
cancellation of removal. In light of our disposition, we need not address Ramon
Tolosa’s remaining contentions.
The parties shall bear their own costs on this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
IH/Research 2 06-73854