                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JULIO CESAR LOZADA, AKA Luis                     No.   11-71464
Perez Calderon,
                                                 Agency No. A089-958-706
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                     Argued and Submitted December 12, 2016
                             San Francisco, California

Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.

      Julio Cesar Lozada (“Lozada”) seeks review of the denial of his application for

cancellation of removal. The Board of Immigration Appeals (“BIA”) found Lozada

ineligible for cancellation of removal based on his guilty plea to Criminal

Impersonation under Arizona Revised Statutes § 13-2006, which the BIA deemed a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
conviction for a crime involving moral turpitude (“CIMT”). Concluding that the BIA

erred in its application of the modified categorical approach, we grant relief.

      The charging documents, conviction document, and plea agreement in Lozada’s

case fail to specify the subsection of his conviction under section 13-2006(A).

Applying the modified categorical approach, the BIA solely relied on the factual-basis

statement made by Lozada’s attorney during the plea colloquy to conclude that

Lozada was convicted under subsection 13-2006(A)(1), a categorical CIMT. See De

Martinez v. Holder, 770 F.3d 823, 824 (9th Cir. 2014).

      However, the factual-basis statement alone was an insufficient basis for such

a determination. See United States v. Marcia-Acosta, 780 F.3d 1244, 1255 (9th Cir.

2015). The modified categorical approach permitted the BIA to review the plea

colloquy “only to determine ‘which statutory phrase was the basis for the

conviction,’” and not “to discover what the defendant actually did.” Descamps v.

United States, 133 S. Ct. 2276, 2287 (2013) (quoting Johnson v. United States, 559

U.S. 133, 144 (2010)). The BIA erred in using the modified categorical approach “to

try to discern what . . . a plea proceeding revealed[] about the defendant’s underlying

conduct.” Id. at 2288. Because we cannot determine which subsection of Arizona

Revised Statutes § 13-2006(A) Lozada was convicted of violating, and one of those




                                           2
subsections has no intent to defraud requirement, it was error for the BIA to find that

Lozada had been convicted of a CIMT.1

      RELIEF GRANTED.




      1
          Lozada’s motion to stay appellate proceedings is denied as moot.
                                           3
