Yoa v. Mukasey

Ninth Circuit

Yoa v. Mukasey

304 F. App'x 630

Court of Appeals for the Ninth Circuit·Decided December 26, 2008·No. No. 05-76838·Published

Opinion

MEMORANDUM

**

Long Ching Yoa, a native and citizen of Cambodia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We [631]*631review 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 Yoa’s conviction for violating Cal.Penal 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 Yoa’s applications for relief.

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

**

Long Ching Yoa, a native and citizen of Cambodia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We [631]*631review 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 Yoa’s conviction for violating Cal.Penal 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 Yoa’s applications for relief.

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.

Yoa v. Mukasey, 304 F. App'x 630 (9th Cir. 2008).

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