Navarro-Soqui v. Holder , 399 F. App'x 166 ( 2010 )

FILED
UNITED STATES COURT OF APPEALS SEP 13 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO UR T OF AP PE A LS
MOISES NAVARRO-SOÏUI, aµa Moises No. 04-76126
Navarro aµa Jose Manuel Cota,
Agency No. A044-776-648
Petitioner,
v. ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Before: PREGERSON, HALL, and N.R. SMITH, Circuit Judges.
Petitioner's petition for rehearing is hereby GRANTED. The memorandum
disposition and dissent filed on January 20, 2010, are hereby withdrawn. The new
memorandum disposition submitted concurrently with this order shall be filed.
FILED
NOT FOR PUBLICATION SEP 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
MOISES NAVARRO-SOÏUI, aµa Moises No. 04-76126
Navarro aµa Jose Manuel Cota,
Agency No. A044-776-648
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 2, 2008**
Pasadena, California
Before: PREGERSON, HALL, and N.R. SMITH, Circuit Judges.
An immigration judge found Moises Navarro-Soqui ('Navarro-Soqui')
removable as an aggravated felon due to his conviction under Cal. Penal Code y
288(c)(1) and ordered him removed to Mexico. The Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Appeals ('BIA') affirmed the immigration judge and dismissed Navarro-Soqui's
appeal. Navarro-Soqui petitions this court for review. This Court has jurisdiction
pursuant to 8 U.S.C. y 1252, and we grant the petition.
In determining whether a state criminal conviction constitutes an aggravated
felony under federal law, this court applies the categorical approach set out in
Taylor v. United States, 495 U.S. 575, 599-602 (1990). We recently held that
Cal. Penal Code y 288(c)(1) is not a categorical match with the generic crime of
sexual abuse of a minor. United States v. Castro, 607 F.3d 566 (9th Cir. 2010).
Accordingly, Navarro-Soqui's conviction under this statute is not an aggravated
felony under 8 U.S.C. y 1101(a)(43), and he is not removable under 8 U.S.C. y
1227(a)(2)(A)(iii).
We GRANT the petition for review and REMAND to the BIA for further
proceedings.
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