                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               JUL 10 2014

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

RAMON ROBERTO HUERTA-FLORES,                     No. 10-73389

              Petitioner,                        Agency No. A092-444-014

  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 April 9, 2014
                            San Francisco, California

Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District Judge.**

       Petitioner Ramon Roberto Huerta-Flores is an alien charged with being

removable for having been convicted of a controlled substances offense. See 8

U.S.C. § 1227(a)(2)(B)(i). The BIA applied the categorical approach and found

him removable on the basis of his Arizona conviction for conspiracy to sell a

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
narcotic drug under Arizona Revised Statutes (“A.R.S.”) § 13-3408(A)(7). In light

of Ragasa v. Holder, No. 12-72262, — F.3d —, 2014 WL 1661491 (9th Cir. Apr.

28, 2014), amended by 2014 WL 2498950 (9th Cir. June 4, 2014), we grant

Huerta-Flores’s petition for review and remand for further proceedings consistent

with this disposition.

      In Ragasa we were faced with the same mismatch between the federal and

state lists of controlled substances present here: the inclusion of benzylfentanyl and

thenylfentanyl in the state list but not in the federal list. See id. at *2 (comparing

Hawaii list with federal list). Compare A.R.S. § 13-3401(20), with 21 C.F.R.

§§ 1308.11–.15. The court held that the petitioner was not categorically removable

under 8 U.S.C. § 1227(a)(2)(B)(i) because of this mismatch. Ragasa, 2014 WL

1661491, at *2. For the same reason, Huerta-Flores’s petition must be granted.

      Unlike Ragasa, it appears that documents in the record of this case may

reflect the substances involved in Huerta-Flores’s conviction. The BIA’s decision

did not discuss application of the modified categorical approach. We leave that

question to its consideration in the first instance on remand. Huerta-Flores may

present his arguments against application of the modified categorical approach to

the BIA.

      PETITION FOR REVIEW GRANTED; REMANDED.


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