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United States Court of Appeals, Ninth Circuit.

Nicolas PABLO CALMO, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 18-71905

Decided: January 28, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Raha Jorjani, Esquire, Attorney, UC Davis School of Law, Immigration Law Clinic, Davis, CA, Su Yon Yi, Alameda County Public Defender, Oakland, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Arthur Rabin, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent


Nicolas Pablo Calmo, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge's decision finding him removable and denying his application for asylum, withholding of removal, and relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law. Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008). We grant the petition and vacate the removal order.

Pablo Calmo was charged with removability based on his conviction under California Penal Code § 32. Our decision in Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1069 (9th Cir. 2020), clarifies that “California Penal Code § 32 is not a categorical match with obstruction of justice under [Immigration and Nationality Act] § 101(a)(43)(S)․” Thus, the sole charge of removability against Pablo Calmo cannot be sustained.


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