                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 19 2010

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




                            FOR THE NINTH CIRCUIT

ROBERTO CARLOS GARCIA,                           No. 08-74569

              Petitioner,                        Agency No. A092-104-762

  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 October 5, 2010
                             San Francisco, California

Before: RYMER and N.R. SMITH, Circuit Judges, and LEIGHTON **, District

Judge

        Roberto Carlos Garcia, a native and citizen of El Salvador, appeals the Board

of Immigration Appeals’ (BIA) order upholding the immigration judge’s (IJ)

decision denying his application for withholding of removal and protection under

         *
              This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
the Convention Against Torture, and ordering him removed to El Salvador. We

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

vacate the removal order, with instructions to the Department of Homeland Security

to terminate the removal proceedings.

       Garcia argues that the BIA erroneously ruled that his California Vehicle

Code § 10851(a) conviction constituted an aggravated felony. We agree. The

government concedes that the BIA erred. Even if the government had not

conceded, the BIA clearly erred because Garcia’s conviction does not qualify as an

aggravated felony under the modified categorical approach. The record of

conviction does not provide enough facts to determine whether Garcia pled guilty

as a principal or as an accessory after the fact to the theft crime.1 The felony

complaint merely recites the language of the statute, which is insufficient to show

that the conviction was of the generically defined crime. Penuliar v. Mukasey, 528

F.3d 603, 613 (9th Cir. 2008). The plea colloquy does not contain enough facts to

show that the conviction was of the generically defined crime either because it

merely shows that Garcia pled guilty to an undefined “Count 1.” Thus, the BIA




      1
        A conviction of accessory after the fact under Section 10851(a) does not
qualify as an aggravated felony. United States v. Vidal, 504 F.3d 1072, 1080 (9th
Cir. 2007) (en banc).

                                           2
could not have known whether Garcia was convicted as a principal in the theft

crime.

         The government argues that the Court should remand the case back to the

BIA. We disagree. Remand is not appropriate for three reasons: (1) the issue of

whether a crime constitutes an aggravated felony is purely legal for which we owe

the BIA no deference, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1126 n.7 (9th

Cir. 2006) (en banc); (2) there has been no change in case law because Penuliar

was decided before the BIA made its ruling; and (3) the government had ample

opportunity to submit whatever documents it could for the record and the

government concedes that additional evidence does not exist to enhance Garcia’s

complete record of conviction upon which the BIA based its decision

         PETITION GRANTED; ORDER OF REMOVAL VACATED WITH

INSTRUCTIONS TO THE DEPARTMENT OF HOMELAND SECURITY

TO TERMINATE REMOVAL PROCEEDINGS.




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