Abarca-Sosa v. Mukasey

Ninth Circuit

Abarca-Sosa v. Mukasey

306 F. App'x 354

Court of Appeals for the Ninth Circuit·Decided December 26, 2008·No. No. 04-71800·Published

Opinion

MEMORANDUM

**

Jose Abarca-Sosa, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo whether an offense qualifies as an aggravated felony, Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir.2004), and we grant the petition for review.

An intervening change in the law requires us to remand the petition because Abarea-Sosa’s conviction for violating CaLPenal Code § 261.5(c) is not categorically for “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir.2008) (en banc), and the modified categorical approach cannot be used to conform his conviction to the generic offense, id. at 1160. We therefore remand for the agency to consider Abarea-Sosa’s application for lawful permanent resident cancellation of removal.

PETITION FOR REVIEW GRANTED; REMANDED.

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

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MEMORANDUM

**

Jose Abarca-Sosa, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo whether an offense qualifies as an aggravated felony, Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir.2004), and we grant the petition for review.

An intervening change in the law requires us to remand the petition because Abarea-Sosa’s conviction for violating CaLPenal Code § 261.5(c) is not categorically for “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir.2008) (en banc), and the modified categorical approach cannot be used to conform his conviction to the generic offense, id. at 1160. We therefore remand for the agency to consider Abarea-Sosa’s application for lawful permanent resident cancellation of removal.

PETITION FOR REVIEW GRANTED; REMANDED.

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

Abarca-Sosa v. Mukasey, 306 F. App'x 354 (9th Cir. 2008).

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