                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 27 2016

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



                             FOR THE NINTH CIRCUIT


JULIO C. FLORES, AKA Julio Flores,               No. 13-73906
AKA Little Diablo Flores,
                                                 Agency No. A070-715-159
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      Julio C. Flores, a native and citizen of El Salvador, petitions for review of

the Board of Immigration Appeals’ order dismissing his 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, Medina-Lara v. Holder, 771 F.3d 1106, 1111

(9th Cir. 2014), and we grant the petition for review and remand.

      Under the modified categorical approach, the government has not met its

burden of proving by clear and convincing evidence that Flores was convicted of

possessing cocaine base. See id. at 1113. The amended complaint, which charged

Flores with a violation of California Health & Safety Code § 11350(a), is the only

document in the record that specifies that cocaine base was the drug at issue. The

minute order dated February 6, 2013 records Flores’s nolo contendere plea to

“Count 1,” but does not specify whether that count was set forth in the amended

complaint, or the original complaint, which is not in the record. In fact, the minute

order states that Flores pleaded not guilty to the amended complaint. Because the

government has submitted only the amended complaint and the link between it and

the minute order is ambiguous, the government has not satisfied its burden of

proof. See id. at 1114-15 (the government failed to carry its burden where alternate

explanations for ambiguities in the record were plausible, even though the record

did not suggest petitioner possessed any substance other than one controlled by

federal law).

      We grant the petition for review and remand for further proceedings.

      PETITION FOR REVIEW GRANTED; REMANDED.


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