Valle-Garcia

MEMORANDUM ***

Carlos Valle-Garda (“Valle”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) denial of his application for cancellation of removal. We have jurisdiction over a final order of removal pursuant to 8 U.S.C. § 1252 (a)(1). We grant the petition for review and remand for an exercise of the Attorney General’s discretion with regard to cancellation of removal.

We review the BIA’s legal determinations de novo. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 983 (9th Cir.2006). When, as here, the BIA adopts a portion of the Id’s decision, we review that portion of the Id’s decision as if it were the BIA’s. See Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002).

In finding Valle ineligible for cancellation of removal, the IJ did not properly consider how the state court treated the wobbler offense. See Garcia-Lopez v. Ashcroft, 334 F.3d 840, 845 (9th Cir.2003) (holding that a wobbler offense qualified for the petty offense exception when the state court’s post-probation actions made the offense a misdemeanor). Valle’s sentence of six months in county jail, three years…