Cesar Ramos Bautista, a.k.a. Ramos Bautista Cesar, a.k.a. Bautist Bokyo v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR RAMOS BAUTISTA, a.k.a.
Ramos Bautista Cesar, a.k.a. Bautist
Bokyo,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-72051
Agency No. A038-566-476
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
November 21, 2011**
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Cesar Ramos Bautista, a native and citizen of the Philippines, petitions pro
se for review of the Board of Immigration Appeals’ order dismissing his appeal
from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C.
FILED
NOV 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-72051 2
§ 1252. We review de novo questions of law, Khan v. Holder, 584 F.3d 773, 776
(9th Cir. 2009), and we grant the petition for review.
Bautista’s conviction for commercial burglary in violation of Cal. Penal
Code §§ 459 and 460(b) is not categorically an aggravated felony burglary offense
under 8 U.S.C. § 1101(a)(43)(G). See United States v. Aguila-Montes de Oca, 655
F.3d 915, 944 (9th Cir. 2011) (en banc) (California burglary is categorically
broader than generic burglary because California’s definition of ‘unlawful or
unprivileged entry,’ unlike the generic definition, permits a conviction for burglary
of a structure open to the public and of a structure that the defendant is licensed or
privileged to enter).
The conviction records relating to Bautista’s burglary conviction indicate a
plea to “willfully and unlawfully enter[ing] a commercial building occupied by
Wells Fargo Bank, Daly City, with the intent to commit larceny or any felony, in
violation of Penal Code section 460(b).” This is insufficient under the modified
categorical approach to demonstrate that his conviction necessarily rested on facts
satisfying the elements of generic burglary. See id. at 945-46 (“[Q]uite simply, the
word ‘unlawfully’ in [petitioner’s] indictment tells us nothing about whether his
entry was ‘unlawful or unprivileged’ in the generic sense.”).

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07-72051 3
The record does not establish that Bautista’s conviction for commercial
burglary is an aggravated felony burglary offense under 8 U.S.C. § 1101(a)(43)(G),
and he is therefore not removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Because the
documents of conviction in the record “cannot possibly be interpreted” to establish
that Bautista was convicted of generic burglary, we grant the petition for review
without remand and vacate the removal order. Fernandez-Ruiz v. Gonzales, 466
F.3d 1121, 1133 (9th Cir. 2006) (en banc).
PETITION FOR REVIEW GRANTED; REMOVAL ORDER
VACATED.

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