Magin Tapia-Cruz v. Eric Holder, Jr.

MEMORANDUM

Magin Tapia-Cruz, a native and citizen of Mexico and a lawful permanent resident (“LPR”) of the United States since 1990, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) finding him removable and ineligible for cancellation of removal. We grant the petition in part, deny it in part, and remand to the BIA for further proceedings consistent with this disposition.

Tapia-Cruz was convicted in 2000 in state court of identity theft in violation of California Penal Code (“Penal Code”) section 529.3. In 2009, he pleaded nolo con-tendere to and was convicted of violating Penal Code section 12021(a)(1). In 2010, the Department of Homeland Security served Tapia-Cruz with a Notice to Appear, charging him as removable for having committed an aggravated felony under 8 U.S.C. § 1227 (a)(2)(A)(iii) and a firearms offense under § 1227(a)(2)(C).

The BIA erred when it concluded that Tapia-Cruz was convicted of an aggravated felony. Applying the modified categorical approach, the facts on which Tapia-Cruz’s Penal Code section 12021(a)(1) conviction necessarily rest do not satisfy both elements of the generic federal aggravated felony offense contained in…