Moran-Covarrubias

MEMORANDUM **

In these consolidated petitions for review, Feliciano Alfredo Moran-Covarrubi-as, 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 decision denying him cancellation of removal and the BIA’s order denying his motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252 , and grant the petition for review.

After the agency’s orders in this case, the BIA held in Matter of Gonzalez-Silva, 24 I. & N. Dec. 218 (BIA 2007), that “an alien whose conviction precedes the effective date for section 237(a)(2)(E) of the [Immigration and Nationality] Act has not been ‘convicted under’ section 237(a)(2)” for purposes of cancellation of removal. Id. at 220 . We reject the government’s contention that Moran-Covarru-bias has waived challenge to this issue. See Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir.2004) (“[W]e may review an issue ... if the failure to raise the issue properly did not prejudice the defense of the opposing party.”) (internal quotation and citation omitted).

As Moran-Covarrubias’s conviction for violating Cal.Penal Code § 273.5 preceded the…