
    Dellas SALWAY, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
    No. 04-74441.
    United States Court of Appeals, Ninth Circuit.
    Submitted May 16, 2007.
    
    Filed June 6, 2007.
    
      Jonathan D. Montag, Esq., Law Offices of Jonathan D. Montag, San Diego, CA, for Petitioner.
    CAS-Distriet Counsel, Office of the District Counsel, Department of Homeland Security, San Diego, CA, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Kristin A. Cabral, Esq., DOJ — U.S. Department of Justice, civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
    Before: PREGERSON, REINHARDT, and TASHIMA, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Dellas Salway, a native and citizen of Canada, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion, Nath v. Gonzales, 467 F.3d 1185, 1189 (9th Cir. 2006), and we grant the petition for review.

The BIA erred in determining that Sal-way’s conviction pursuant to Cal. Health & Safety Code § 11378 remained valid for immigration purposes. The order from the Superior Court of San Diego states that Salway’s conviction was vacated for “good cause shown,” and the government did not establish the conviction was vacated for reasons “unrelated to the merits of the underlying criminal proceedings.” In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), rev’d on other grounds Pickering v. Gonzales, 454 F.3d 525 (6th Cir. 2006); see Nath, 467 F.3d at 1188-89 (where the basis for the vacatur is unclear from the record, the government, not the petitioner, has the burden of proof).

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