Sandoval-Macias

MEMORANDUM **

Francisco Javier Sandoval-Macias, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252 . Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006). Reviewing de novo, id., we grant the petition for review.

The BIA’s decision preceded this court’s recent opinion in United States v. Gomez-Leon, 545 F.3d 777 (9th Cir.2008). The Attorney General acknowledges that, as in Gomez-Leon , the certified administrative record in Sandoval-Macias’ case does not establish whether he was credited for his initial 180-day sentence, a condition of probation, in his subsequent 352-day sentence after a probation violation. This ambiguity results from Cal.Penal Code § 19.2, which restricts a trial court from sentencing a defendant to more than 365 days in jail as a term of probation absent a waiver by the defendant pursuant to People v. Johnson, 82 Cal.App.3d 183 , 147 Cal.Rptr. 55 (1978). See Gomez-Leon, 545 F.3d at 784-85 . Under Gomez-Leon , the BIA should not have added Sandoval-Macias’ sentences together to conclude that…