NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HECTOR AGUILUZ-PINEDA, No. 11-71415
Petitioner, Agency No. A093-486-138
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 10, 2014
Pasadena, California
Before: BENAVIDES,** WARDLAW, and CLIFTON, Circuit Judges.
Hector Aguiluz-Pineda petitions for review of a BIA decision denying him
cancellation of removal under 8 U.S.C. § 1231(b)(3). Citing Matter of Burbano, 20
I. & N. Dec. 872 (BIA 1994), the BIA adopted and affirmed the IJ’s decision,
which concluded that Aguiluz-Pineda was statutorily barred from cancellation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
removal for having been convicted of a particularly serious crime. See 8 U.S.C.
§ 1231(b)(3)(B)(ii). Because the IJ failed to analyze this application for relief
under the applicable Matter of Y–L– factors, we grant the petition for review and
remand for application of these factors. See 23 I. & N. Dec. 270, 276–77 (Att’y
Gen. 2002).
We have jurisdiction over legal questions. 8 U.S.C. § 1252(a)(2)(D). In
addition, 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is not a bar to our review
of the issue presented here, as the IJ explicitly conducted the particularly serious
crime determination and the BIA adopted and affirmed her decision under Matter
of Burbano. See Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en
banc). We review the IJ’s decision for an abuse of discretion. Arbid v. Holder, 700
F.3d 379, 383 (9th Cir. 2012) (per curiam).
The Attorney General recognized the very rare possibility that a drug
trafficking offense may not qualify as a particularly serious crime in Matter of
Y–L–. See 23 I. & N. Dec. at 276–77. There is a strong presumption that drug
trafficking offenses constitute particularly serious crimes but, under Matter of
Y–L–, an exception to this presumption exists in rare cases where an alien makes,
at a minimum, a showing that six factors rendered his drug trafficking offense
insufficiently serious to constitute a particularly serious crime. See id. at 275–77.
2
Because the government conceded at oral argument that this case should be
analyzed under Matter of Y–L–, the IJ abused her discretion by failing to consider
the Matter of Y–L– factors and a remand is required to allow the IJ to determine in
the first instance whether Aguiluz-Pineda’s application should get the benefit of
the Matter of Y–L– exception. We therefore grant Aguiluz-Pineda’s petition for
review and remand for application of Matter of Y–L–.
PETITION FOR REVIEW GRANTED; REMANDED.
3