Oliva-Osuna

MEMORANDUM ***

Petitioner Manuel Agustin Oliva-Osuna (“Osuna”), a Mexican native, seeks review of an October 31, 2003, decision of the Board of Immigration Appeals (“BIA”) denying his request for cancellation of removal from the United States. In its decision, the BIA affirmed the determination of the Immigration Judge (“IJ”) to deny relief of cancellation of removal because Osuna had been convicted of an aggravated felony under 8 U.S.C. § 1101 (a)(43)(G) for a previous violation of California Vehicle Code § 10851(a). Because Penuliar v. Gonzales holds that (1) a California conviction for unlawful driving or taking of a vehicle does not categorically qualify as “theft offense”; and (2) under the modified categorical approach, charging documents and abstract of judgment were insufficient to establish that alien’s conviction for unlawful driving or taking of vehicle was for a theft offense, Osuna’s petition for review is granted. 435 F.3d 961, 970-71 (9th Cir.2006) (amending Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir.2005), and denying rehearing en banc). As in Penuliar v. Gonzales, nothing shows that Osuna “took and exercise[d] control over a stolen car,” and therefore Osuna…