Jose Magana-Pena v. Eric Holder, Jr. , 453 F. App'x 760 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE RODOLFO MAGANA-PENA, No. 10-72595
Petitioner, Agency No. A076-743-779
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 27, 2011 **
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Jose Rodolfo Magana-Pena, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C.
§ 1252. We review de novo questions of law. Padilla-Romero v. Holder, 611 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1011, 1012 (9th Cir. 2010) (per curiam). We grant the petition for review and
remand.
The BIA erred in finding that Magana-Pena’s conviction for second-degree
burglary under Arizona Revised Statutes § 13-1507 is a “burglary offense”
aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(G), under the modified
categorical approach where the language contained in the indictment is insufficient
to narrow the statute to the generic crime. See Rebilas v. Mukasey, 527 F.3d 783,
787 (9th Cir. 2008); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997)
(holding that Arizona courts expanded the statute beyond the definition of generic
burglary “because they have interpreted the statute to allow a conviction even if the
intent to commit the crime was formed after entering the structure and/or the entry
was privileged”). The government therefore did not meet its burden of establishing
Magana-Pena’s removability under 8 U.S.C. § 1227(a)(2)(A)(iii).
Because Magana-Pena remains removable under 8 U.S.C.
§ 1227(a)(2)(B)(i), we remand to the agency to determine whether he is eligible for
relief from removal.
PETITION FOR REVIEW GRANTED; REMANDED.
2 10-72595