FILED
NOT FOR PUBLICATION JAN 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AARON MANUEL SOLIS-TADEO, No. 09-72301
Petitioner, Agency No. A077-290-731
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 December 2, 2011
San Francisco, California
Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**
Aaron Manuel Solis-Tadeo petitions for review of a dismissal by the Board
of Immigration Appeals of his appeal from an order of removal based on a finding
that he had been convicted within five years of his admission to the United States
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
of a crime involving moral turpitude (“CIMT”) for which a sentence of one year or
more may be imposed. We grant the petition and remand for further proceedings.
The decision of the Board incorrectly identified Solis's conviction as being
for assault with a deadly weapon. Solis was charged with that crime, but that is not
the offense for which he was convicted. As the government acknowledged, he was
convicted under another part of California Penal Code § 245(a)(1), for assault by
means likely to produce great bodily injury. When the Board fails to identify
correctly the elements of the crime for which the petitioner was convicted, its
decision merits no deference. See Uppal v. Holder, 605 F.3d 712, 715 (9th Cir.
2010) (“Because the BIA failed to identify the elements of § 268 correctly, its
CIMT analysis . . . is misdirected and so merits no deference from this Court.”);
see also Hernandez-Cruz v. Holder, 651 F.3d 1094, 1106 (9th Cir. 2011) ("As the
BIA erred at step one, we owe its CIMT analysis at step two no deference.").
Generally, an error by the Board in the first stage of a moral turpitude
analysis warrants remanding for reconsideration. See Uppal, 605 F.3d at 719-20
(remanding where the Board may have misconstrued statutory elements of crime
and applied CIMT analysis inconsistent with case law). The government argues
that a conviction under any part of section 245(a)(1) should qualify categorically as
a CIMT. Neither the Board nor this court has so held in a precedential opinion.
2
We remand to the Board for consideration of whether the crime for which Solis
was actually convicted constitutes a CIMT.
PETITION GRANTED AND REMANDED.
3