                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 25 2010

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




                            FOR THE NINTH CIRCUIT



ESTELITO CARPIO ADIOVA, Jr.,                      No. 08-73361

              Petitioner,                         Agency No. A047-899-129

  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 May 14, 2010
                             San Francisco, California

Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.**

       Estelito Carpio Adiova, Jr., native and citizen of the Philippines, petitions

this court to vacate the order of removal entered by the Immigration Judge (“IJ”)

and affirmed by the Board of Immigration (“BIA”). In 2004, Adiova admitted to


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
convictions under California Penal Code § 496(a) for receiving stolen property and

California Health and Safety Code § 11377(a) for possession of a controlled

substance. In 2007, he was again convicted under § 496(a). The IJ found Adiova

removable because, inter alia, his two convictions under § 496(a) qualified as

convictions for two crimes involving moral turpitude not arising out of a single

scheme of criminal misconduct. 8 U.S.C. § 1227(a)(2)(A)(ii). The BIA affirmed

the IJ’s decision on this ground only, noting that a violation of § 496(a) is

categorically a crime involving moral turpitude.

      After the BIA rendered its decision, we held that a conviction for a violation

of California Penal Code § 496(a) is not categorically a crime involving moral

turpitude. Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir. 2009). If a

crime is not categorically a crime involving moral turpitude, the court must

conduct a modified categorical analysis, considering only the record of conviction.

Because the administrative record in this case does not contain the record of

conviction, the government failed to prove that Adiova’s conviction under § 496(a)

qualifies as a crime involving moral turpitude under the modified categorical

approach. We therefore grant the petition and vacate the removal order without

remanding. Notash v. Gonzales, 427 F.3d 693, 700 (9th Cir. 2005).

      PETITION GRANTED.


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