                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 25 2012

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




                             FOR THE NINTH CIRCUIT



MAX EDDY MARTINEZ,                               No. 07-73875

               Petitioner,                       Agency No. A038-855-435

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

               Respondent.



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

                             Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Max Eddy Martinez, a native and citizen of El Salvador, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C.

§ 1252. We review de novo questions of law, Camins v. Gonzales, 500 F.3d 872,


          *
             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).
876 (9th Cir. 2007), and we grant the petition for review and remand for further

proceedings.

      In concluding that Martinez was seeking admission to the United States, and

was therefore subject to charges of inadmissibility, the agency did not have the

benefit of Vartelas v. Holder, 132 S. Ct. 1479, 1483-84, 1490-92 (2012), in which

the Supreme Court held that 8 U.S.C. § 1101(a)(13)(C)(v) does not apply to

criminal convictions that predate the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208 (“IIRIRA”). Additionally, in

concluding that Martinez was ineligible for a waiver of inadmissibility under

former § 212(c) of the Immigration and Nationality Act, the agency did not have

the benefit of Peng v. Holder, 673 F.3d 1248, 1256-57 (9th Cir. 2012), where we

held that § 212(c) relief remains available to certain aliens who proceeded to trial

prior to IIRIRA.

      In light of this intervening caselaw, we remand to the BIA with instructions

to remand to the IJ to conduct further proceedings regarding Martinez’s

inadmissibility and, if necessary, regarding his eligibility for § 212(c) relief.

      PETITION FOR REVIEW GRANTED; REMANDED.




                                            2                                       07-73875
