Chavez v. Holder

465 F. App'x 660

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 6, 2012
• Docket: 04-71040
• Status: Unpublished

Opinion

MEMORANDUM **

Alfredo Chavez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012 (9th Cir.2009), and we grant the petition for review and remand.

Chavez’s 2002 conviction for oral copulation with a minor in violation of California Penal Code § 288a(b)(1), is not categorically an aggravated felony with respect to either of the federal generic definitions we have adopted for “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), because the statute of conviction lacks the elements of abuse, a four-year age difference between the defendant and the victim, and a victim under the age of 16. See Rivera-Cuartas v. Holder, 605 F.3d 699, 701-02 (9th Cir.2010); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir.2008), abrogated on other grounds by United States v. Aguilar-Montes de Oca, 655 F.3d 915 (9th Cir.2011) (per curiam). We therefore remand for the BIA to apply the modified categorical approach in the first instance. See Aguilar-Montes de Oca, 655 F.3d at 928 (proceeding to the modified categorical approach is permissible where the statute of conviction is missing a requisite element).

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.