Patao

MEMORANDUM ***

Monico Piano Patao, Jr., a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) _ denial of his motions to reopen and reconsider the BIA’s summary affirmance of an immigration judge’s (“IJ”) decision finding him removable as an alien convicted of a domestic violence offense, finding him ineligible for adjustment of status because he did not have an approved visa petition, and denying his application for cancellation of removal for failure to meet the requisite continuous physical presence requirement and as a matter of discretion. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We grant the petition for review and vacate Patao’s order of removal in light of our recent decision in Tokatly v. Ashcroft, 371 F.3d 613, 622-23 (9th Cir.2004) (applying modified categorical approach in domestic violence case).

*518 On December 22, 1998, Patao was convicted, pursuant to a plea agreement, of Assault in the Third Degree and Terroristic Threatening in the Second Degree in violation of Hawaii Revised Statutes (“HRS”) § 707-0712(l)(a) and HRS § 707-0717, respectively. He was sentenced to serve 30 days in prison and placed…