
    Peter F. THOMAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
    No. 11-70289.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Jan. 8, 2013.
    Filed March 5, 2013.
    Daniel Luke Geyser, Esquire, Gibson, Dunn & Crutcher LLP, Dallas, TX, for Petitioner.
    Peter F. Thomas, pro se.
    David Nicholas Harling, Jeffery R. Leist, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
    Before: W. FLETCHER and RAWLINSON, Circuit Judges, and HELLERSTEIN, Senior District Judge.
    
    
      
       The Honorable Alvin K. Hellerstein, Senior United States District Judge for the Southern District of New York, sitting by designation.
    
   MEMORANDUM

Thomas is an HIV-positive bisexual Grenadian citizen who has lived in the United States legally since 1996. In 1999, he pleaded guilty to the transportation or sale of a controlled substance under California law; the plea colloquy makes clear that the underlying crime was sale of cocaine base. The total amount of the sale was $10. Thomas was sentenced to 180 days in county jail, three years probation, and a $200 fíne. Over ten years later, the government began removal proceedings under 8 U.S.C. § 1227(a)(2)(B)© against Thomas based on this conviction. After the proceedings began, Thomas had his conviction expunged under California Penal Code § 1203.4. The IJ held Thomas removable and ineligible for relief from removal. The IJ found that the conviction was still applicable for purposes of immigration law and that the conviction was for a particularly serious crime, applying the presumption enunciated in Matter of Y-L-, 23 I. & N. Dec. 270 (B.I.A.2002), that all drug trafficking crimes are particularly serious crimes. The BIA affirmed, and Thomas appealed.

We review the IJ’s decision as if it were that of the BIA where the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994), and adopts the IJ’s decision. Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005). Where the BIA summarily affirms an IJ’s decision and does not expressly state that it is conducting a de novo review, we may “also look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.” Avetova-Elisseva v. I.N.S., 213 F.3d 1192, 1197 (9th Cir.2000). Here the BIA cited Matter of Burbano with respect to the IJ’s decision that Thomas is removable for his conviction for sale of a controlled substance and the IJ’s conclusion that Thomas was convicted of an aggravated felony. The BIA agreed in a summary disposition with the IJ’s determination that Thomas was convicted of a particularly serious crime.

The BIA erred in retroactively applying the rule from Matter of Y-L-, which created a presumption that any drug trafficking crime is a particularly serious crime. In Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir.2007), we applied the five-factor test articulated in SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), to hold that the BIA’s presumption that all drug trafficking crimes are “particularly serious” could not be applied retroactively to Miguel-Miguel. The facts in Miguel-Miguel are virtually indistinguishable from the present facts; applying the factors to Thomas, there is no question that the BIA erred in the retroactive application of the presumption of Matter of Y-L-. The government agrees and acknowledges that remand is appropriate on this ground.

Thomas’s remaining claims lack merit.

Petition GRANTED and REMANDED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     