Rafael Vizcarra-Ayala v. Eric Holder, Jr.

MEMORANDUM

Rafael Vizcarra-Ayala, a legal permanent resident of the United States, petitions for review of (1) the Board of Immigration Appeals’ (BIA) dismissal of his appeal of his removal order and (2) the BIA’s subsequent denial of his motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252 . We grant the petition.

As background, in May 2008, the BIA terminated ongoing removal proceedings against Vizcarra-Ayala, which were based on Vizcarra-Ayala’s 2005 conviction for forgery in violation of California Penal Code § 475(c). The BIA did so in light of this court’s decision in Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir.2008), where we granted the petition for review, holding that California’s forgery statute is not categorically an aggravated felony and that the government failed to establish Vizcarra-Ayala’s removability under the modified categorical approach. In July 2008, the Department of Homeland Security (DHS) filed a motion to reopen proceedings, charging Vizcarra-Ayala with remov- ability on two additional grounds. The grounds were based on Vizcarra-Ayala’s convictions for burglary in October 1992 and controlled substance possession in July 1998. The BIA…