Castro-Garcia v. Holder

MEMORANDUM **

Javier Castro-Garcia, a native and citizen of Mexico, petitions for review of the

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Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether a state statutory crime constitutes a crime involving moral turpitude, Galeana-Men-doza v. Gonzales, 465 F.3d 1054, 1057 (9th Cir.2006), and we grant the petition for review and remand.

The BIA concluded that Castro-Garcia was ineligible for cancellation of removal because his conviction under California Penal Code § 243(e) was a crime involving moral turpitude. Subsequent to the BIA’s order, we held that a conviction under § 243(e) is not categorically a crime involving moral turpitude. See id. at 1061. Because “the government has not asked us to apply the modified categorical approach, we consider only whether the categorical approach is satisfied.” See Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir.2008) (internal quotation omitted).

We therefore grant the petition for review and remand for the BIA to address in the first instance the IJ’s alternative finding that Castro-Garcia was ineligible for cancellation of removal because he was unable to demonstrate good moral character as a result of having been confined to a penal institution for an aggregate period of 180 days or more. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

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