                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 21 2010

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




                             FOR THE NINTH CIRCUIT



 JESUS RAMON TOLOSA,                             No. 06-73854

               Petitioner,                       Agency No. A079-522-035

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

               Respondent.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Jesus Ramon Tolosa, a native and citizen of Mexico, petitions for review of

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

immigration judge’s decision denying his application for cancellation of removal.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

IH/Research
We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for

review and remand.

        In concluding that Ramon Tolosa is statutorily ineligible for cancellation of

removal based on his 1994 conviction for violating section 11352 of the California

Health and Safety Code, the agency did not have the benefit of our decision in

Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1132 (9th Cir. 2007), where we held

that an alien seeking to establish that a criminal conviction under a divisible statute

does not bar cancellation of removal under the modified categorical analysis may

do so by pointing to inconclusive conviction records.

        We remand for the agency to reconsider Ramon Tolosa’s eligibility for

cancellation of removal. In light of our disposition, we need not address Ramon

Tolosa’s remaining contentions.

        The parties shall bear their own costs on this petition for review.

        PETITION FOR REVIEW GRANTED; REMANDED.




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