Juan Flores v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN FLORES, AKA Juan Flores, Jr., No. 19-73089 Petitioner, Agency No. A090-214-113 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 11, 2022 San Francisco, California Before: HURWITZ and VANDYKE, Circuit Judges, and MOSKOWITZ,** District Judge. Dissent by Judge VANDYKE Juan Flores, 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 (“IJ”) decision finding him removable and denying his applications for * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. asylum and withholding and deferral of removal. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). We review de novo questions of law. Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008). We grant the petition for review and remand. Flores was charged with removability solely because of a conviction under California Penal Code (“CPC”) § 136.1(b)(1). On remand from this Court after a prior petition for review, the BIA held that Flores was removable because the CPC § 136.1(b)(1) conviction was an offense relating to obstruction of justice under 8 U.S.C. § 1101(a)(43)(S), and thus an aggravated felony. In Cordero-Garcia v. Garland, we held that CPC § 136.1(b)(1) is not an aggravated felony under § 1101(a)(43)(S). No. 19-72779, 2022 WL 3350714, at *6 (9th Cir. Aug. 15, 2022). Thus, the sole charge of removability against Flores cannot be sustained and his petition must be granted. We remand to the agency for further proceedings consistent with this order. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency. If we conclude that the BIA’s decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case.”). PETITION FOR REVIEW GRANTED; REMANDED. 2 FILED AUG 26 2022 VANDYKE, Circuit Judge, dissenting. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS For the reasons set forth in my dissent in Cordero-Garcia v. Garland, No. 19- 72779, 2022 WL 3350714 (9th Cir. Aug. 15, 2022), I dissent in this case as well. 3 19-73089 Court of Appeals for the Ninth Circuit ca9 9th Cir. Juan Flores v. Merrick Garland 26 August 2022 Agency Unpublished a6d84ca4e2c4ea0c1581791d8673e29529fb2a2d

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