                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 24 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

HECTOR AGUILUZ-PINEDA,                           No. 11-71415

              Petitioner,                        Agency No. A093-486-138

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

              Respondent.


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

                        Argued and Submitted July 10, 2014
                               Pasadena, California

Before: BENAVIDES,** WARDLAW, and CLIFTON, Circuit Judges.

       Hector Aguiluz-Pineda petitions for review of a BIA decision denying him

cancellation of removal under 8 U.S.C. § 1231(b)(3). Citing Matter of Burbano, 20

I. & N. Dec. 872 (BIA 1994), the BIA adopted and affirmed the IJ’s decision,

which concluded that Aguiluz-Pineda was statutorily barred from cancellation of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
removal for having been convicted of a particularly serious crime. See 8 U.S.C.

§ 1231(b)(3)(B)(ii). Because the IJ failed to analyze this application for relief

under the applicable Matter of Y–L– factors, we grant the petition for review and

remand for application of these factors. See 23 I. & N. Dec. 270, 276–77 (Att’y

Gen. 2002).

      We have jurisdiction over legal questions. 8 U.S.C. § 1252(a)(2)(D). In

addition, 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is not a bar to our review

of the issue presented here, as the IJ explicitly conducted the particularly serious

crime determination and the BIA adopted and affirmed her decision under Matter

of Burbano. See Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en

banc). We review the IJ’s decision for an abuse of discretion. Arbid v. Holder, 700

F.3d 379, 383 (9th Cir. 2012) (per curiam).

      The Attorney General recognized the very rare possibility that a drug

trafficking offense may not qualify as a particularly serious crime in Matter of

Y–L–. See 23 I. & N. Dec. at 276–77. There is a strong presumption that drug

trafficking offenses constitute particularly serious crimes but, under Matter of

Y–L–, an exception to this presumption exists in rare cases where an alien makes,

at a minimum, a showing that six factors rendered his drug trafficking offense

insufficiently serious to constitute a particularly serious crime. See id. at 275–77.


                                           2
Because the government conceded at oral argument that this case should be

analyzed under Matter of Y–L–, the IJ abused her discretion by failing to consider

the Matter of Y–L– factors and a remand is required to allow the IJ to determine in

the first instance whether Aguiluz-Pineda’s application should get the benefit of

the Matter of Y–L– exception. We therefore grant Aguiluz-Pineda’s petition for

review and remand for application of Matter of Y–L–.

      PETITION FOR REVIEW GRANTED; REMANDED.




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