                                                                           FILED
                            NOT FOR PUBLICATION                            MAY 18 2015

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



                            FOR THE NINTH CIRCUIT


JOSE ALBERTO MUNIZ-ALVARADO,                     No. 13-71455
AKA Jose Alvarado Muniz, AKA Jose
Alvarado-Muniz,                                  Agency No. A078-063-903

              Petitioner,
                                                 MEMORANDUM*
 v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                        Argued and Submitted April 8, 2015
                               Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges and DONATO,** District Judge.

      Jose Alberto Muniz-Alvarado petitions for review of a Board of Immigration

Appeals’ (BIA) order affirming an immigration judge’s decision ordering him



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
removed to Mexico and denying his application for cancellation of removal. We

have jurisdiction under 8 U.S.C. § 1252, and we grant the petition.

      As a threshold matter, Respondent urges us to remand this case for the BIA

to determine in the first instance whether Petitioner is still removable under our

intervening case law. We deny Respondent’s motion to remand, because this case

presents purely legal issues that we review de novo and that do not invoke the

agency’s expertise. See Fregozo v. Holder, 576 F.3d 1030, 1036 (9th Cir. 2009).

      Where, as here, the BIA reviewed de novo the IJ’s decision, our review is

limited to the decision of the BIA. Garcia-Quintero v. Gonzales, 455 F.3d 1006,

1011 (9th Cir. 2006). The BIA concluded that Petitioner was removable based on

his conviction under former California Penal Code (“CPC”) § 12021(a)(1)

[unauthorized firearm possession by a convicted felon]. Relying on our then-

existing precedent, the BIA found that Petitioner’s conviction under former CPC §

12021(a)(1) was categorically an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii),




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and a firearms offense, id. § 1227(a)(2)(C).1 However, our intervening case law

makes clear that a conviction under former CPC § 12021(a)(1) is categorically not

an aggravated felony nor a firearms offense, because the statute’s definition of

“firearm” is broader than the federal definition, which excludes antique firearms.

See Medina-Lara v. Holder, 771 F.3d 1106, 1117 (9th Cir. 2014); United States v.

Hernandez, 769 F.3d 1059, 1063 (9th Cir. 2014) (per curiam). Moreover, because

the CPC’s definition of “firearm” is indivisible, we do not remand for the agency

to conduct the modified categorical approach. See Hernandez, 769 F.3d at 1063.

      In light of our disposition, we do not reach Petitioner’s argument that he is

eligible for cancellation of removal.

      Muniz-Alvarado’s petition for review is GRANTED, and his removal order

VACATED without remand for further administrative proceedings.




      1
         To the extent the BIA found Petitioner removable because his conviction
under either CPC § 12021(a)(1) or CPC § 246 [shooting at an inhabited dwelling]
was categorically a firearms offense, it sustained the additional charge the
government filed against Petitioner in an I-261 on April 2, 2012. However, this I-
261 failed to list the conviction or convictions upon which it relied. It therefore
failed to specify “[t]he acts or conduct alleged to be in violation of law.” 8 U.S.C.
§ 1229(a)(1)(C); 8 C.F.R. § 1003.15(b)(3); Salviejo-Fernandez v. Gonzales, 455
F.3d 1063, 1066 (9th Cir. 2006). A criminal “conviction cannot sustain [a]
removal order [if] it was not alleged in the NTA.” Cardoso-Tlaseca v. Gonzales,
460 F.3d 1102, 1107 (9th Cir. 2006).

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