Perfecto-Gonzalez v. Ashcroft

45 F. App'x 819

Opinion

MEMORANDUM

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Jose Perfecto-Gonzalez, a native and citizen of Mexico, petitions pro se for review from the Board of Immigration Appeals’ (“BIA”) order finding him removable as an aggravated felon because of his California felony conviction for driving under the influence. We have jurisdiction under 8 U.S.C. § 1252. See Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir.2002) (per curiam) (stating that “we have jurisdiction to determine our jurisdiction”). We review de novo the threshold question of whether a particular offense constitutes an aggravated felony. Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000).

Because a California conviction for driving under the influence with priors is not an aggravated felony, see Montiel-Barra-za, 275 F.3d at 1180, we remand the petition to the BIA for further proceedings consistent with this opinion.

Because we conclude that Perfecto-Gon-zalez is not removable as an alien convicted of an aggravated felony, we do not reach his due process claim.

Each party shall bear its costs on appeal.

PETITION FOR REVIEW REMANDED.

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.