                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 22 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ALICIA BETANCOURT-FLORES,                        No. 06-73846

               Petitioner,                       Agency No. A011-825-887

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

               Respondent.



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

                               November 21, 2011 **

Before:        TASHIMA, BERZON, and TALLMAN, Circuit Judges.

       Alicia Betancourt-Flores, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing her appeal from an

immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo questions of law, Renteria-Morales v. Mukasey, 551 F.3d

1076, 1080 (9th Cir. 2008), and we grant the petition for review.

      The agency erred when it applied the modified categorical approach to

determine that Betancourt-Flores’s conviction for second degree burglary under

Cal. Penal Code § 459 constituted an aggravated felony “attempted theft” offense

under 8 U.S.C. § 1101(a)(43)(G) and (U), rendering her ineligible for relief from

removal. See Ngaeth v. Mukasey, 545 F.3d 796, 801 (9th Cir. 2008) (a conviction

under Cal. Penal Code § 459 constitutes an attempted theft offense under 8 U.S.C.

§ 1101(a)(43)(G) and (U) if the documents in the record of conviction establish

that it involved an intent to commit a generic theft offense “coupled with an overt

act constituting a substantial step towards the commission of the offense”);

Hernandez-Cruz v. Holder, 651 F.3d 1094, 1101-04 (9th Cir. 2011) (entry into a

commercial building does not constitute a substantial step supporting a conviction

for attempted theft).

      In addition, the agency found Betancourt-Flores removable due to her

convictions for second degree burglary and possession of a controlled substance

without the benefit of our intervening decisions in Hernandez-Cruz, 651 F.3d at

1105-09 (bare elements of California commercial burglary do not qualify as CIMT

as they do not match the elements of any generic CIMT, qualify as fraudulent


                                          2                                    06-73846
conduct, or otherwise constitute acts that are per se morally reprehensible), and

Ruiz-Vidal v. Holder, 473 F.3d 1072, 1076 (9th Cir. 2007) (because California

drug schedules are broader than the federal Controlled Substance Act, record of

conviction must identify the controlled substance involved). On remand, the

agency should reconsider its findings of removability in light of our intervening

precedent.

      We need not address Betancourt-Flores’s remaining contentions.

      PETITION FOR REVIEW GRANTED; REMANDED.




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