Betancourt-Flores

MEMORANDUM

Alicia Betancourt-Flores, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252 . We review de novo questions of law, Renteria-Morales v. Mukasey, 551 F.3d 1076, 1080 (9th Cir.2008), and we grant the petition for review.

The agency erred when it applied the modified categorical approach to determine that Betancourt-Flores’s conviction for second degree burglary under Cal.Penal Code § 459 constituted an aggravated felony “attempted theft” offense under 8 U.S.C. § 1101 (a)(43)(G) and (U), rendering her ineligible for relief from removal. See Ngaeth v. Mukasey, 545 F.3d 796, 801 (9th Cir.2008) (a conviction under Cal.Penal Code § 459 constitutes an attempted theft offense under 8 U.S.C. § 1101 (a)(43)(G) and (U) if the documents in the record of conviction establish that it involved an intent to commit a generic theft offense “coupled with an overt act constituting a substantial step towards the commission of the offense”); Hernandez-Cruz v. Holder, 651 F.3d 1094, 1101-04 (9th Cir.2011) (entry into a commercial building…