Joaquin Pena De Los Santos 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NOT FOR PUBLICATION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
JOAQUIN PENA DE LOS SANTOS,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-71998
Agency No. A077-123-105
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2013**
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Joaquin Pena De Los Santos, a native and citizen of the Dominican
Republic, petitions for review of an order of the Board of Immigration Appeals
(“BIA”) dismissing his appeal from an immigration judge’s removal order. We
FILED
JAN 16 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-71998 2
have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and
remand.
Because it is unclear whether the agency applied the modified categorical
approach to Pena De Los Santos’s conviction, we remand the case to the BIA for
further proceedings. See United States v. Castillo-Rivera, 244 F.3d 1020, 1022-23
(9th Cir. 2001) (recognizing that the conduct encompassed by section 12021(a)(1)
of the California Penal Code may not categorically constitute an aggravated
felony); see also 8 U.S.C. § 1101(a)(43)(E)(ii) (including firearms offenses
described in 18 U.S.C. § 922(g)(1) in the definition of an aggravated felony);
18 U.S.C. § 922(g)(1) (punishing possession of a firearm by any person who has
been convicted of a crime “punishable by imprisonment for a term exceeding one
year”).
In light of this disposition, we decline to address Pena De Los Santos’s
remaining challenges to the BIA’s order. See Mendez-Alcaraz v. Gonzales,
464 F.3d 842, 844 (9th Cir. 2006) (declining to reach nondispositive challenges to
a BIA order).
PETITION FOR REVIEW GRANTED; REMANDED.

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