Calderon-Ortiz v. Gonzales

161 F. App'x 721

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 2006
• Docket: No. 03-72653; Agency No. A45-141-112
• Status: Published

Opinion

MEMORANDUM

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Javier Calderon-Ortiz petitions the Court to review the Board of Immigration Appeals’s (“BIA”) and immigration judge’s (“IJ”) determination that he is removable for committing an “aggravated felony” and subsequent denial of his application for cancellation of removal. Calderon’s principal contention is that his felony conviction for unlawful driving or taking a vehicle in violation of California Vehicle Code section 10851 does not constitute an aggravated felony. Because the REAL ID Act of 2005 removed the jurisdictional bar over petitions of this sort, we have jurisdiction pursuant to 8 U.S.C. § 1252. Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 586 (9th Cir.2005). We grant the petition because this Court has already held that violation of California Vehicle Code section 10851 is not an aggravated felony in circumstances indistinguishable from Calderon’s case. Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir.2005). Accordingly, the order of removal of which the petitioner complains was predicated on an error of law. Thus, the matter is remanded to the BIA for proceedings consistent with this decision.

Petition GRANTED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.