* This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ALFREDO BURGOS-GOMEZ,

aka Medardo Villanueva-Castellanos,

 Petitioner,

 v.

ERIC H. HOLDER JR., Attorney General,

 Respondent.

No. 08-72170

B.I.A. No. A098-182-258

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 11, 2010

San Francisco, California

Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

Petitioner Jorge Alfredo Burgos-Gomez, a native and citizen of Honduras,

appeals the Board of Immigration Appeals’ ("BIA") dismissal of the immigration

judge’s ("IJ") removal order. The BIA found that Petitioner was deportable as

charged, inadmissible because of his conviction for a crime involving moral

turpitude, and ineligible for any waiver that would permit him to qualify for

FILED

AUG 25 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

adjustment of status. The BIA also affirmed the denial of Petitioner’s application

for adjustment of status on the ground that he failed to demonstrate the requisite

degree of hardship to his United States citizen mother and son. We review final

decisions of the BIA, Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir. 2001), but

we lack jurisdiction to review discretionary decisions, Murillo-Salmeron v. INS,

327 F.3d 898, 901 (9th Cir. 2003). We grant the petition in part, dismiss in part,

and remand to the BIA.

The BIA erred in its analysis regarding whether Petitioner’s conviction for

conspiracy to commit battery, in violation of sections 199.480 and 200.481 of the

Nevada Revised Statutes, constitutes a crime of moral turpitude. The BIA

improperly held that Petitioner’s conviction constituted a crime of moral turpitude

without conducting the required analysis under the most recent applicable

precedents. Specifically, the BIA’s analysis is incomplete because it failed to take

account of the categorical approach set forth by the Supreme Court in Taylor v.

United States, 495 U.S. 575 (1990). The BIA did not analyze the specific elements

of the Nevada crime. See Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010)

(holding that, in determining whether a conviction under a criminal statute is

categorically a crime of moral turpitude, the BIA first must identify the elements of

the criminal statute and then must compare those elements to the generic definition
3

of a crime involving moral turpitude and decide whether they meet the definition). 

And, a fortiori, the BIA did not undertake to decide whether, if the Nevada statute

does not qualify categorically, the modified categorical approach applies. See

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187 (2007) (noting that some courts

refer to this step of the Taylor inquiry as the "modified categorical approach"). 

The BIA also failed to use the form of analysis set forth in its own opinion in In re

Short, 20 I. & N. Dec. 136, 137-38 (B.I.A. 1989). 

We are not authorized to conduct any of that analysis for the BIA, INS v.

Orlando Ventura, 537 U.S. 12 (2002) (per curiam), so we must remand for it to do

so in the first instance.

We lack jurisdiction to review the BIA’s discretionary decision to deny

Petitioner a waiver of inadmissibility under section 212(h) of the Immigration and

Nationality Act. Mejia v. Gonzales, 499 F.3d 991, 999 (9th Cir. 2007). 

GRANTED in part; DISMISSED in part; and REMANDED. Costs on

appeal awarded to Petitioner.