                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 16 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JOAQUIN PENA DE LOS SANTOS,                      No. 11-71998

               Petitioner,                       Agency No. A077-123-105

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Joaquin Pena De Los Santos, a native and citizen of the Dominican

Republic, petitions for review of an order of the Board of Immigration Appeals

(“BIA”) dismissing his appeal from an immigration judge’s removal order. We




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and

remand.

      Because it is unclear whether the agency applied the modified categorical

approach to Pena De Los Santos’s conviction, we remand the case to the BIA for

further proceedings. See United States v. Castillo-Rivera, 244 F.3d 1020, 1022-23

(9th Cir. 2001) (recognizing that the conduct encompassed by section 12021(a)(1)

of the California Penal Code may not categorically constitute an aggravated

felony); see also 8 U.S.C. § 1101(a)(43)(E)(ii) (including firearms offenses

described in 18 U.S.C. § 922(g)(1) in the definition of an aggravated felony);

18 U.S.C. § 922(g)(1) (punishing possession of a firearm by any person who has

been convicted of a crime “punishable by imprisonment for a term exceeding one

year”).

      In light of this disposition, we decline to address Pena De Los Santos’s

remaining challenges to the BIA’s order. See Mendez-Alcaraz v. Gonzales,

464 F.3d 842, 844 (9th Cir. 2006) (declining to reach nondispositive challenges to

a BIA order).

      PETITION FOR REVIEW GRANTED; REMANDED.




                                          2                                      11-71998
