Allen Rod Tongco-Andrade v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLEN ROD TONGCO-ANDRADE,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-73704
Agency No. A044-716-967
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 6, 2015
San Francisco, California
Before: TALLMAN and RAWLINSON, Circuit Judges, and DEARIE, Senior
District Judge. **
Allen Rod Tongco-Andrade (Tongco-Andrade), a native and citizen of the
Philippines, petitions for review of the decision by the Board of Immigration
Appeals (BIA) dismissing his challenge to a decision by the Immigration Judge
FILED
MAR 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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(IJ) finding him removable, and denying his application for cancellation of
removal.
We lack jurisdiction over Tongco-Andrade’s challenge to the BIA’s
discretionary denial of cancellation of removal, and he does not otherwise raise a
colorable constitutional claim or question of law regarding this issue. See
Bermudez v. Holder, 586 F.3d 1167, 1169 (9th Cir. 2009). We do, however, have
jurisdiction to determine as a matter of law whether Tongco-Andrade’s underlying
predicate offenses render him removable. See Medina-Lara v. Holder, 771 F.3d
1106, 1111 (9th Cir. 2014).
Tongco-Andrade’s petition for review is timely because it was filed within
thirty days of the BIA’s second decision, which constituted a final order of
removal. See 8 U.S.C. § 1252(b)(1); see also Abdisalan v. Holder, 774 F.3d 517,
523 (9th Cir. 2015), as amended (en banc). The BIA’s first decision was not a
final removal order because it remanded to the IJ to re-assess Tongco-Andrade’s
application for cancellation of removal. See Abdisalan, 774 F.3d at 526 (“When
the BIA remands to the IJ for any reason, no final order of removal exists until all
administrative proceedings have concluded. Thus, when the BIA issues a mixed
decision, no aspect of the BIA’s decision is ‘final’ for the purpose of judicial
review. . . .”).
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Tongco-Andrade’s challenge to his removability was exhausted because the
issue was resolved by the BIA. See Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th
Cir. 2005) (en banc). Because the government conceded that the case should be
remanded if Tongco-Andrade exhausted his challenge to removability, we grant
the petition and remand to the BIA so it can analyze, in the first instance, whether
Tongco-Andrade’s conviction under California Penal Code § 273a(a) is a “crime of
child abuse” that renders him removable under 8 U.S.C. § 1227(a)(2)(E)(i).
PETITION DISMISSED in part, GRANTED and REMANDED in part.
Each party shall bear its costs of appeal.
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