Jesus Miguel Martel-Martinez v. Eric H. Holder Jr.

MEMORANDUM

Jesus Miguel Martel-Martinez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252 . We review de novo whether a conviction constitutes a controlled-substance violation. Esquivel-Garcia v. Holder, 593 F.3d 1025, 1028 (9th Cir.2010). We grant the petition for review, vacate the order of removal, and remand the matter to the BIA for termination of proceedings without prejudice.

The agency erred by concluding that Martel-Martinez is removable under 8 U.S.C. § 1227 (a)(2)(B)(i) due to his 2008 conviction for possession of more than 28.5 grams of marijuana under California Health and Safety Code § 11357(c), because the record does not establish that this conviction was for “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” See Rodriguez v. Holder, 619 F.3d 1077, 1079 (9th Cir.2010) (per curiam); see also Medina v. Ashcroft, 393 F.3d 1063 , 1065 n. 5 (9th Cir.2005) (“The government bears the burden of establishing that an alien’s conviction does not fall within…