Marmolejo

MEMORANDUM *

Alberto Marmolejo appeals the BIA’s decision that he is removable. We have jurisdiction pursuant to 8 U.S.C. § 1252 , and we grant the petition. The facts are known to the parties and are not recited here.

The parties ask that the original appeal from the IJ’s decision and the supplemental evidence of the vacated conviction be considered together as a single appeal on the question of removability. The issue before us, then, is whether the Government has shown, by clear and convincing evidence, that Marmolejo is removable based on his conviction for “failure to provide” pursuant to California Penal Code § 270. See 8 C.F.R. § 1240.8 ; Sissoko v. Rocha, 412 F.3d 1021 , 1035 n. 24 (9th Cir.2005). We review de novo the BIA’s conclusion that Marmolejo is removable. Lara-Cazares v. Gonzales, 408 F.3d 1217, 1219 (9th Cir.2005) (citations omitted).

We conclude that the Government has not met its burden to show that Marmolejo is removable. A vacated conviction can serve as the basis of removal if the conviction was vacated for reasons “unrelated to the merits of the underlying criminal proceedings,” that is, for equitable or humanitarian reasons. Matter of Pickering, 23 I. &…