Fajugon-Hurguilla

MEMORANDUM *

Jose Fajugon-Hurguilla (“Fajugon”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming two separate orders of an Immigration Judge (“IJ”). The IJ instructed Fajugon that he was ineligible to apply for asylum, but set a deadline for Fajugon to file an application for withholding of removal and relief under the Convention Against Torture. Fajugon failed to file a timely application, and the IJ ordered him removed. Fajugon then filed a joint motion with the Government to reopen his removal proceedings, which the IJ denied. We have jurisdiction pursuant to 8 U.S.C. § 1252 , and we grant the petition, vacate the removal order, and remand.

The IJ ruled that Fajugon was ineligible to apply for asylum because of his conviction under Cal. Health & Safety Code § 11352 (a). We review de novo whether an offense qualifies as an aggravated felony. Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir.2004). The IJ’s ruling was in error. A conviction under § 11352(a) is not per se an aggravated felony, see Unit ed States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir.2001) (en banc), and the judicially noticeable documents in the record do not…