Oseguera-Chavez v. Mukasey

286 F. App'x 421

Opinion

MEMORANDUM

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Gabriel Oseguera-Chavez petitions for review of an order of removal. He argues that the Immigration Judge and Board of Immigration Appeals erred in concluding that his misdemeanor burglary conviction under California Penal Code § 459 was a crime involving moral turpitude under INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A), rendering him ineligible for cancellation of removal. We agree, and remand for a determination of whether Oseguera-Chavez has satisfied the remaining criteria for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b).

The government correctly concedes that a violation of California Penal Code § 459 is not categorically a crime of moral turpitude under Taylor v. United, States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The criminal complaint against Oseguera-Chavez describes facts that, if proven, would demonstrate that his eonviction under California Penal Code § 459 was for a crime involving moral turpitude. However, the mere entry of Oseguera-Chavez’s nolo contendere plea to “459 PC,” without more, does not constitute proof or admission of those facts. See United States v. Vidal, 504 F.3d 1072, 1086-88 (9th Cir.2007) (en banc); Li v. Ashcroft, 389 F.3d 892, 898 (9th Cir.2004). Osegu-era-Chavez’s conviction therefore cannot be considered a crime of moral turpitude under Taylor’s modified categorical approach.

GRANTED AND REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.