                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 23 2010

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




                              FOR THE NINTH CIRCUIT



RODERICK RUGNAO REALON, a.k.a.                    No. 04-72780
Roderick Realon, a.k.a. Ricky Realon,
                                                  Agency No. A038-980-434
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Roderick Rugnao Realon, a native and citizen of the Philippines, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s decision denying his application for

cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review

          *
             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).
de novo questions of law, Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126 (9th

Cir. 2007), and we grant the petition for review and remand for further

proceedings.

      The BIA determined that Realon was ineligible for cancellation of removal

because his conviction under Cal. Veh. Code § 10851(a), was categorically an

aggravated felony theft offense. We subsequently held that Cal. Veh. Code

§ 10851(a) is not categorically a theft offense. See United States. v. Vidal, 504

F.3d 1072, 1074-75 (9th Cir. 2007) (en banc).

      The BIA did not conduct a modified categorical analysis to ascertain

whether the record of conviction sufficiently establishes that Realon was convicted

of the generic theft offense. See Sandoval-Lua, 499 F.3d at 1132. We therefore

remand to the BIA in order for it to make this determination in the first instance.

See Fregozo v. Holder, 576 F.3d 1030, 1039 (9th Cir. 2009).

      PETITION FOR REVIEW GRANTED; REMANDED.




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