                                                                           FILED
                              NOT FOR PUBLICATION                           OCT 13 2011

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




                              FOR THE NINTH CIRCUIT



JOSE RODOLFO MAGANA-PENA,                         No. 10-72595

               Petitioner,                        Agency No. A076-743-779

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

               Respondent.



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

                             Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Jose Rodolfo Magana-Pena, 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 removal order. We have jurisdiction under 8 U.S.C.

§ 1252. We review de novo questions of law. Padilla-Romero v. Holder, 611 F.3d


          *
             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).
1011, 1012 (9th Cir. 2010) (per curiam). We grant the petition for review and

remand.

      The BIA erred in finding that Magana-Pena’s conviction for second-degree

burglary under Arizona Revised Statutes § 13-1507 is a “burglary offense”

aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(G), under the modified

categorical approach where the language contained in the indictment is insufficient

to narrow the statute to the generic crime. See Rebilas v. Mukasey, 527 F.3d 783,

787 (9th Cir. 2008); United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997)

(holding that Arizona courts expanded the statute beyond the definition of generic

burglary “because they have interpreted the statute to allow a conviction even if the

intent to commit the crime was formed after entering the structure and/or the entry

was privileged”). The government therefore did not meet its burden of establishing

Magana-Pena’s removability under 8 U.S.C. § 1227(a)(2)(A)(iii).

      Because Magana-Pena remains removable under 8 U.S.C.

§ 1227(a)(2)(B)(i), we remand to the agency to determine whether he is eligible for

relief from removal.

      PETITION FOR REVIEW GRANTED; REMANDED.




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