Ulanday

MEMORANDUM *

Daniel Ulanday seeks review of his removal order, which is based on the determination that his 2003 theft conviction under California Vehicle Code § 10851(a) is an aggravated felony. We grant the petition and remand the case to the Board of Immigration Appeals (“BIA”) to consider further evidence concerning Ulanday’s conviction.

We review de novo the BIA’s determination of questions of law, including whether a particular offense qualifies as an aggravated felony for which an alien is subject to removal. Molino-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002); Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000).

We held in United States v. Vidal, 504 F.3d 1072, 1082 (9th Cir.2007) (en banc), that California Vehicle Code § 10851(a) encompasses more conduct than is covered by the generic definition of theft. Thus, we held that to determine whether a conviction under this section qualifies as an aggravated felony theft offense, we must look to the underlying conviction documents pursuant to the modified categorical approach. See id. at 1086.

In Penuliar v. Mukasey, 528 F.3d 603, 612 (9th Cir.2008), the underlying complaint charged the petitioner with unlawful driving or…