Garcia-Tellez

MEMORANDUM

Jesus Garcia Tellez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (BIA). We have jurisdiction under 8 U.S.C. § 1252 , and we grant the petition. We review the BIA’s factual findings for substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). We review de novo the BIA’s legal conclusions, including whether an offense constitutes an aggravated felony. Id.; Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir.2004).

Garcia Tellez exhausted his administrative remedies by challenging the immigration judge’s conclusion that his state conviction was an aggravated felony. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.2004) (holding that raising an issue before the BIA is all that is required to satisfy the exhaustion requirement).

Garcia Tellez’s conviction under California Health and Safety Code § 11378 is not a categorical aggravated felony because “California law regulates the possession and sale of many substances that are not regulated by the [Controlled Substances Act].” Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir.2010); see, e.g., Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th…