
    Julio Cesar LOZADA, AKA Luis Perez Calderon, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 11-71464
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 12, 2016 San Francisco, California
    Filed December 23, 2016
    As Amended January 31, 2017
    Christopher John Stender, Esquire, Attorney, Federal Immigration Counselors, Inc., APC, San Francisco, CA, Christopher John Stender, Esquire, Attorney, Federal Immigration Counselors, AZ, PC, Phoenix, AZ, for Petitioner
    OIL, Daniel Shieh, Esquire, Trial Attorney, DOJ—U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent
    • Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.
   MEMORANDUM

Julio Cesar Lozada (“Lozada”) seeks review of the denial of his application for cancellation of removal. The Board of Immigration Appeals (“BIA”) found Lozada ineligible for cancellation of removal based on his guilty plea to Criminal Impersonation under Arizona Revised Statutes § 13-2006, which the BIA deemed a conviction for a crime involving moral turpitude (“CIMT”). Concluding that the BIA erred in its application of the modified categorical approach, we grant relief.

The charging documents, conviction document, and plea agreement in Lozada’s case fail to specify the subsection of his conviction under section 13-2006(A). Applying the modified categorical approach, the BIA solely relied on the factual-basis statement made by Lozada’s attorney during the plea colloquy to conclude that Lo-zada was convicted under subsection 13-2006(A)(1), a .categorical CIMT. See De Martinez v. Holder, 770 F.3d 823, 824 (9th Cir. 2014).

However, the factual-basis statement alone was an insufficient basis for such a determination. See United States v. Marcia-Acosta, 780 F.3d 1244, 1255 (9th Cir. 2015). The modified categorical approach permitted the BIA to review the plea colloquy “only to determine ‘which statutory phrase was the basis for the conviction,’ ” and not “to discover what the defendant actually did.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2287, 186 L.Ed.2d 438 (2013). (quoting Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). The BIA erred in using the modified categorical approach “to try to discern what ... a plea proceeding revealed[] about the defendant’s underlying conduct.” Id. at 2288. Because we cannot determine which subsection of Arizona Revised Statutes § 13-2006(A) Lozada was convicted of violating, and one of those subsections has no intent to defraud requirement, it was error for the BIA to find that Lozada had been convicted of a CIMT.

PETITION GRANTED and REMANDED for further proceedings consistent with this Memorandum. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     
      
      . Lozada’s motion to stay appellate proceed-tags is denied as moot.
     