Haque
Haque v. Gonzales
Opinion
Lead Opinion
MEMORANDUM *
In 05-70386, Mohammed Ehtesham Haque, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (BIA) decision finding him removable under 8 U.S.C. § 1227 (a)(2)(A)(iii) for an aggravated felony conviction. The BIA found that Haque’s conviction of conspiracy to manufacture or sell a counterfeit mark, in violation of California Penal Code § 350(a)(2), constituted an aggravated felony under 8 U.S.C. § 1101 (a)(43)(M)(i). In 05-72121, Haque petitions for review of the BIA’s denial of his motion to reopen or reconsider.
Although we lack jurisdiction to review a final order of removal based upon an aggravated felony conviction, see 8 U.S.C. § 1252 (a)(2)(C), we have jurisdiction to determine whether Haque’s conviction qualified as an aggravated felony. See Martinez-Perez v. Gonzales, 417 F.3d 1022, 1024-25 (9th Cir.2005). We review the BIA’s determination that a particular offense constitutes an aggravated felony de novo. See Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). Because the government failed to prove that Haque committed an aggravated felony, we grant the petition and vacate the removal order.