Victor MARTINEZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent, 261 F. App'x 28

MEMORANDUM The BIA erred in holding that Martinez’s second degree burglary conviction under California Penal Code § 459 constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). A conviction under

section 459 is not an aggravated felony under the categorical approach. United States v. Velasco-Medina, 305 F.3d 839, 851 (9th Cir.2002). Nor did the government carry its burden of establishing Martinez’s conviction was an aggravated felony under the modified categorical approach. The record contains only the charging document and an abstract of judgment reflecting Martinez’s guilty plea, which are insufficient to prove that Martinez pleaded guilty to all the required elements for generic burglary. See Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); United States v.

Vi dal, 504 F.8d 1072, 1087 (9th Cir.2007) (en banc). Because the BIA erred in determining Martinez was an aggravated felon, we remand to the BIA for further proceedings. See INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). PETITION FOR REVIEW GRANTED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Our August 16, 2004 order does not preclude Martinez’s challenge to this BIA determination because Martinez has shown a change in controlling law. See Nunes v. Ashcroft, 375 F.3d 805, 807 (9th Cir.2004).