Milton Lomeli-Capetillo v. Eric Holder, Jr.
Opinion
Opinion
ORDER
Lomeli-Capetillo’s petition for panel rehearing is granted.
The memorandum disposition filed on January 29, 2015, is withdrawn. A replacement memorandum disposition is being filed concurrently with this order.
Lomeli-Capetillo’s petition for rehearing en banc is denied as moot.
Any petition for rehearing of the replacement memorandum disposition must be filed within 45 days of the filing date of this order.
MEMORANDUM
Milton Lomeli-Capetillo, a native and citizen of Mexico, petitions 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. § 1252 . We review de novo questions of law. Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir.2014).
Under the modified categorical approach, the government has not met its burden of proving by clear and convincing evidence that Lomeli-Capetillo was convicted of transportation of methamphetamine. See id. at 1113 . The complaint charged Lomeli-Capetillo with six counts of misconduct. Reviewing the abstract of judgment, it seems that Lomeli-Capetillo pleaded guilty to only two of those counts. However, reviewing the record, it is…