Reyes-Arguera

MEMORANDUM **

Onofre Antonio Reyes-Arguera, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252 . We review de novo legal and constitutional issues, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and we grant in part and deny in part the petition for review.

Contrary to the government’s contention, Reyes-Arguera’s claims were exhausted because the BIA’s opinion cited Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and did not express disagreement with any part of the IJ’s decision. See Abebe v. Gonzales, 432 F.3d 1037, 1040-41 (9th Cir.2005) (en banc). Moreover, we exercise our discretion to review these claims. See Singh v. Ashcroft, 361 F.3d 1152 , 1157 n. 3 (9th Cir.2004) (court has discretion to consider a claim not raised in petitioner’s opening brief if government brief addressed the claim).

The IJ erroneously concluded that Reyes-Arguera had been convicted under California Penal Code section 273.5(a), where the record establishes…