                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 17 2013

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



                            FOR THE NINTH CIRCUIT


REINALDO OTONIEL CARRILLO-                       No. 10-73106
JAIME, aka Reinaldo Carrillo, Reinaldo
Otoniel Carrillo,                                Agency No. A042-483-280

              Petitioner,
                                                 MEMORANDUM*
  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                        Argued and Submitted June 25, 2013
                               Seattle, Washington

Before: D.W. NELSON, W. FLETCHER, and TALLMAN, Circuit Judges.

       Petitioner Reinaldo Otoniel Carrillo-Jaime, a citizen of El Salvador and

lawful permanent resident of the United States, petitions for review of a Board of

Immigration Appeals (“BIA”) decision affirming a determination of an

Immigration Judge (“IJ”) that he was removable.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We considered in 2009 whether Carrillo-Jaime was removable. He was

charged with removability under 8 U.S.C. § 1227(a)(2)(A)(i) for being convicted

of a crime involving moral turpitude committed within five years after admission

and under 8 U.S.C. § 1227(a)(2)(A)(ii) for being convicted of two crimes involving

moral turpitude any time after admission. Carrillo-Jaime had an application

pending under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. §

1182(c) (repealed 1996), for discretionary relief from removal. Carrillo-Jaime was

also charged with removability for having committed an aggravated felony under 8

U.S.C. § 1227(a)(2)(A)(iii) because, the government argued, he had been convicted

of a theft offense. If Carrillo-Jaime were properly convicted of an aggravated

felony, Section 212(c) relief would not be available. See 8 U.S.C. § 1229b(a)(3)

(individual convicted of aggravated felony not eligible for cancellation of

removal).

      The government argued to us in 2009 that Carrillo-Jaime had been convicted

of a theft offense under both a categorical and modified categorical approach. See

Taylor v. United States, 495 U.S. 575 (1990). The government had submitted to

the IJ three documents to support its argument under the modified categorical

approach: the statutes defining the elements of a chop shop violation; the charging

document; and the abstract of judgment. This court had already clearly held that


                                          2
the charging document and abstract of judgment were insufficient to establish the

factual basis of an alien’s conviction. See Martinez-Perez v. Gonzales, 417 F.3d

1022, 1028–29 (9th Cir. 2005).

      Our panel published an opinion granting Carrillo-Jaime’s petition for

review. Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009). We held that

California Vehicle Code § 10801 is not a theft offense under the categorical

approach. Id. at 749. We also held “that the record is not sufficient to establish

that Carrillo-Jaime’s § 10801 conviction is an aggravated felony theft offense

under the modified categorical approach.” Id. We stated:

      The government has presented no evidence that “any motor vehicle or motor
      vehicle part” over which Carrillo-Jaime exercised control while owning or
      operating a chop shop was obtained without the owner’s consent.
      Consequently, the government has not established that Carrillo-Jaime
      committed a § 1101(a)(43)(G) theft offense under the modified categorical
      approach.

Id. at 754. We remanded for further proceedings. Id. at 754–55. Given our

rejection on the merits of the government’s arguments under the categorical and

modified categorical approaches, the only question left open on remand was the

discretionary decision whether to grant Section 212(c) relief.

      After remand from our court, the BIA remanded to the IJ. Before the IJ, the

government submitted new documents, including a transcript of the plea



                                          3
proceedings and several police reports, in support of its contention that Carrillo-

Jaime had committed a theft offense under the modified categorical approach. All

of the documents were dated at the time of Carrillo-Jaime’s criminal plea and had

previously been available to the government. The IJ concluded that Carrillo-Jaime

had been convicted of a theft offense, and the BIA affirmed.

      Our prior remand did not permit the government a second chance to

introduce evidence to support its claim that Carrillo-Jaime’s conviction qualified as

a theft offense under the modified categorical approach. Under the law of the

mandate, “whatever was before this court, and disposed of by its decree, is

considered as finally settled.” In re Sanford Fork & Tool Co., 160 U.S. 247, 255

(1895). In 2009, the government argued in its brief to us that Carrillo-Jaime had

been convicted of a theft offense based on the modified categorical approach, and

the question was thus “before” us at that time. Id. The modified categorical

approach was also “disposed of” by our mandate in 2009. Id. The BIA correctly

interpreted our decision as holding “that the respondent’s conviction did not

constitute an aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). Compare

Cisneros-Perez v. Gonzales, 465 F.3d 386, 394 (9th Cir. 2006) (finding “there was

not sufficient documentation before the IJ to permit the conclusion that

Cisneros-Perez’s conviction was necessarily for a crime of domestic violence” and


                                           4
remanding to consider discretionary relief), and Martinez-Perez, 417 F.3d at 1029

(holding that no aggravated felony had been committed “[b]ecause the record does

not establish that Martinez’s conviction for grand theft constitutes a generic theft

offense, under either the categorical or modified categorical approach”), with

Carrillo-Jaime, 572 F.3d at 749 (“[T]he record is not sufficient to establish that

Carrillo-Jaime’s § 10801 conviction is an aggravated felony theft offense under the

modified categorical approach.”).

      We grant Carrillo-Jaime’s petition and hold that our prior mandate precluded

the agency from reconsidering whether Carrillo-Jaime was convicted of an

aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). We remand to the BIA for

the sole purpose of determining whether to grant relief under Section 212(c).

      PETITION FOR REVIEW GRANTED; REMANDED




                                           5
