Pena-Flores

MEMORANDUM ***

Petitioner Washington Pena-Flores, a native and citizen of Ecuador, petitions for review of the order by the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s ruling that Petitioner’s conviction for grand theft under CahPenal Code § 487(a) makes him removable for having committed an “aggravated felony.” Although we lack jurisdiction to review a final order of removal, see 8 U.S.C. § 1252 (a)(2)(C), we retain jurisdiction to determine whether Petitioner’s offense qualifies as an aggravated felony. See Martinez-Perez v. Gonzales, 417 F.3d 1022, 1024-25 (9th Cir.2005). We review the BIA’s ruling of whether a particular offense is an aggravated felony de novo. See Penuliar v. Gonzales, 435 F.3d 961, 966 (9th Cir.2006), as amended on denial of reh’g and reh’g en bane. Because the government failed to prove that Petitioner committed an aggravated felony, we hold that the BIA erred in concluding that Petitioner is removable, and we grant the petition.

To determine whether a conviction is an aggravated felony under § 1101(a)(43)(G), this court employs a two-part test set forth in Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607…