                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          NOV 22 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

CESAR RAMOS BAUTISTA, a.k.a.                     No. 07-72051
Ramos Bautista Cesar, a.k.a. Bautist
Bokyo,                                           Agency No. A038-566-476

               Petitioner,
                                                 MEMORANDUM *
  v.

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                                November 21, 2011 **

Before:        TASHIMA, BERZON, and TALLMAN, Circuit Judges.

       Cesar Ramos Bautista, a native and citizen of the Philippines, petitions pro

se 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.


          *
             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).
§ 1252. We review de novo questions of law, Khan v. Holder, 584 F.3d 773, 776

(9th Cir. 2009), and we grant the petition for review.

      Bautista’s conviction for commercial burglary in violation of Cal. Penal

Code §§ 459 and 460(b) is not categorically an aggravated felony burglary offense

under 8 U.S.C. § 1101(a)(43)(G). See United States v. Aguila-Montes de Oca, 655

F.3d 915, 944 (9th Cir. 2011) (en banc) (California burglary is categorically

broader than generic burglary because California’s definition of ‘unlawful or

unprivileged entry,’ unlike the generic definition, permits a conviction for burglary

of a structure open to the public and of a structure that the defendant is licensed or

privileged to enter).

      The conviction records relating to Bautista’s burglary conviction indicate a

plea to “willfully and unlawfully enter[ing] a commercial building occupied by

Wells Fargo Bank, Daly City, with the intent to commit larceny or any felony, in

violation of Penal Code section 460(b).” This is insufficient under the modified

categorical approach to demonstrate that his conviction necessarily rested on facts

satisfying the elements of generic burglary. See id. at 945-46 (“[Q]uite simply, the

word ‘unlawfully’ in [petitioner’s] indictment tells us nothing about whether his

entry was ‘unlawful or unprivileged’ in the generic sense.”).




                                           2                                    07-72051
      The record does not establish that Bautista’s conviction for commercial

burglary is an aggravated felony burglary offense under 8 U.S.C. § 1101(a)(43)(G),

and he is therefore not removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Because the

documents of conviction in the record “cannot possibly be interpreted” to establish

that Bautista was convicted of generic burglary, we grant the petition for review

without remand and vacate the removal order. Fernandez-Ruiz v. Gonzales, 466

F.3d 1121, 1133 (9th Cir. 2006) (en banc).

      PETITION FOR REVIEW GRANTED; REMOVAL ORDER

      VACATED.




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