Pacheco Fregozo v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO PACHECO FREGOZO, 
Petitioner, No. 05-71268
v.
 Agency No.
A079-587-885
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 12, 2009—San Francisco, California
Filed August 12, 2009
Before: David R. Thompson, Marsha S. Berzon and
N. Randy Smith, Circuit Judges.
Opinion by Judge Berzon
10889
PACHECO FREGOZO v. HOLDER 10891
COUNSEL
Samuel Uchenna Ogbu (argued), Dozie Ike Ezeife (on briefs),
Emeziem & Ogbu, APC, Emeryville, California, for the peti-
tioner.
Jem C. Sponzo (argued), Peter D. Keisler, Michelle G.
Latour, Keith I. Bernstein (on briefs), U.S. Department of Jus-
tice, Washington, D.C., for the respondent.
10892 PACHECO FREGOZO v. HOLDER
OPINION
BERZON, Circuit Judge:
We consider whether a California conviction for misde-
meanor child endangerment is a “crime of child abuse” for
purposes of the federal Immigration and Nationality Act
(“INA”).
I.
In October 2000, petitioner Ernesto Pacheco Fregozo
(“Pacheco”) pleaded nolo contendere to one count of driving
under the influence of alcohol or drugs and one count of child
endangerment, both misdemeanors. According to the police
reports,1 officers observed Pacheco’s car exit from a freeway
at a high speed, and saw his wife, seated in the passenger seat,
attempting to get the officers’ attention. After a short pursuit,
the vehicle pulled into a high school parking lot and stopped.
There, the officers observed his frightened wife and saw his
two children screaming and crying in the backseat. The offi-
cers ordered Pacheco from the car. After smelling alcohol on
his breath and observing his demeanor, the officers suspected
that Pacheco was intoxicated. The children indicated that they
were afraid that Pacheco’s erratic driving would lead to a car
crash. After Pacheco refused field sobriety tests, he was
arrested and booked on the charges of driving under the influ-
ence and child endangerment. Pacheco was advised of the
potential immigration consequences of a nolo plea, entered
the plea as to both charges, and was sentenced to fifteen days
in county jail and three years’ probation.
1
Because the police reports were not incorporated by reference into
Pacheco’s nolo plea or the record of conviction, neither we nor the Board
of Immigration Appeals (“BIA”) may rely on them in determining whether
he was convicted of a “crime of child abuse” within the meaning of the
INA. See Shepard v. United States, 544 U.S. 13, 16 (2005); United States
v. Almazan-Becerra, 537 F.3d 1094, 1097—98 (9th Cir. 2008). We
recount the information here for purposes of background only.
PACHECO FREGOZO v. HOLDER 10893
In November 2001, the then-INS initiated removal proceed-
ings, issuing a Notice to Appear that charged Pacheco as
removable as an alien present in the United States without
having been admitted or paroled. See 8 U.S.C.
§ 1182(a)(6)(A)(i). He appeared before an immigration judge
and, through counsel, admitted the factual allegations con-
tained in the Notice to Appear and conceded his removability
as charged.2 Pacheco then applied for cancellation of removal
pursuant to section 240A of the INA, 8 U.S.C. § 1229b. The
government moved to pretermit the application on the ground
that his misdemeanor child endangerment conviction under
California Penal Code section 273a(b) was a conviction of a
“crime of child abuse,” rendering Pacheco statutorily ineligi-
ble for cancellation of removal pursuant to section
240A(b)(1)(c) of the INA. See also 8 U.S.C. § 1227(a)(2)(E)(i).3
The immigration judge agreed with the government and
denied Pacheco’s application for cancellation of removal,
holding that he was convicted of an offense “involving child
endangerment or child abuse or child neglect.” Pacheco there-
upon appealed to the BIA, which affirmed. The BIA con-
cluded that conviction under California Penal Code section
273a(b), a conviction it described as “willful harm or injury
to a child,” “satisfies the meaning of child abuse as contem-
plated under section 237(a)(2)(E)(i) of the Act.”
Pacheco timely appeals. We hold that a conviction under
California Penal Code section 273a(b) is not categorically a
“crime of child abuse” within the meaning of the INA and so
grant the petition for review and remand for further proceed-
ings.
2
Pacheco also withdrew his previously filed applications for asylum and
withholding of removal.
3
The government does not assert that his drunk driving conviction
affects Pacheco’s application for cancellation of removal.
10894 PACHECO FREGOZO v. HOLDER
II.
A.
We review de novo the BIA’s conclusions on questions of
law—including whether a particular state conviction is a
removable offense under the INA—except to the extent that
deference is owed to the BIA’s interpretation of the statutes
and regulations it is charged with administering. See Morales-
Garcia v. Holder, 567 F.3d 1058, 1061 (9th Cir. 2009). To
determine whether a state conviction constitutes a removable
offense, the BIA must determine first the elements of the
offense the petitioner has been convicted of committing, and
second whether the conviction falls within the definition of a
removable offense under the INA. See Marmolejo-Campos v.
Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en banc). The first
inquiry requires the BIA to construe a state criminal statute.
As the BIA has no statutory expertise in such state law mat-
ters, we review de novo its determination of the elements of
the offense for which the petitioner was convicted. See id. The
second inquiry requires the BIA to construe the INA by defin-
ing a particular removable offense and applying that defini-
tion to a petitioner’s state conviction. If, in resolving the
second issue, the BIA has interpreted an ambiguous INA stat-
utory term, and rendered its interpretation in a precedential
decision intended to carry the force of law, we defer under
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-43 (1984), to the BIA’s definition so
long as it is reasonable. See Marmolejo-Campos, 558 F.3d at908-09 (citing United States v. Mead Corp., 533 U.S. 218(2001)).
B.
1.
[1] Under Section 240A(b) of the INA, a nonpermanent
resident is eligible for cancellation of removal if, among other
PACHECO FREGOZO v. HOLDER 10895
matters, he “has not been convicted of an offense under sec-
tion . . . [237(a)(2)]” of the Act. 8 U.S.C. § 1229b(b)(1)(C).
Among the offenses listed in section 237(a)(2) are “[c]rimes
of domestic violence, stalking, or violation of protection
order, [and] crimes against children.” 8 U.S.C.
§ 1227(a)(2)(E). Specifically, the statute provides that “[a]ny
alien who at any time after admission is convicted of a crime
of domestic violence, a crime of stalking, or a crime of child
abuse, child neglect, or child abandonment is deportable.” 8
U.S.C. § 1227(a)(2)(E)(i).
Where, as here, the immigration statute refers to generic
crimes, we apply the categorical and modified categorical
approaches set forth in Taylor v. United States, 495 U.S. 575(1990), to determine whether a particular state conviction falls
within the generic federal definition. See Nijhawan v. Holder,
129 S. Ct. 2294, 2298-99 (2009); Quintero-Salazar v. Keisler,
506 F.3d 688, 692 (9th Cir. 2007). Under the categorical
approach, we “compare the elements of the statute of convic-
tion with a federal definition of the crime to determine
whether conduct proscribed by the [state] statute is broader
than the generic federal definition,” looking only at the fact
of conviction and the statutory definition. Id. Looking beyond
the title of the statute to the offense’s elements, Fernandez-
Ruiz v. Gonzales, 466 F.3d 1121, 1125 (9th Cir. 2006) (en
banc), “[i]f the statute of conviction criminalizes conduct that
would not satisfy the federal definition of the crime at issue,
then the conviction does not qualify as a predicate offense
under the categorical approach.” Quintero-Salazar, 506 F.3d
at 692 (citing United States v. Corona-Sanchez, 291 F.3d
1201, 1203 (9th Cir. 2002) (en banc)).
[2] Unlike the term “crime of domestic violence,” the term
“crime of child abuse” is not defined in the INA, and our case
law has not defined the term as it is used in that statute.4 See
4
The BIA held Pacheco ineligible for cancellation of removal under
only the “child abuse” language of section 237(a)(2)(E)(i) of the INA. We
therefore do not reach the question of whether California Penal Code sec-
tion 273a(b) is categorically a crime of “child neglect.”
10896 PACHECO FREGOZO v. HOLDER
Velazquez-Herrera v. Gonzales, 466 F.3d 781 (9th Cir. 2006)
(per curiam). The BIA has, however, recently supplied a defi-
nition of “crime of child abuse” as set forth in section
237(a)(2)(E)(i) of the INA. See Matter of Velazquez-Herrera,
24 I. & N. Dec. 503 (BIA 2008). Because Matter of
Velazquez-Herrera is a precedential opinion of the BIA
intended to carry the force of law, under Chevron, we defer
to the BIA’s interpretation of “crime of child abuse,” if it is
reasonable. See Marmolejo-Campos, 558 F.3d at 908-09.
2.
Before examining Matter of Velazquez-Herrera further and
applying it to the facts of this case, we pause to consider a
procedural point—whether we should remand to the BIA to
apply its Matter of Velazquez-Herrera decision rather than
doing so ourselves.
The BIA had not yet decided Matter of Velazquez-Herrera
when it issued its decision in Pacheco’s appeal. In Pacheco’s
appeal, the BIA relied instead on its decision in Matter of
Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999),
which adopted Black’s Law Dictionary’s then-current defini-
tion of “child abuse” as “[a]ny form of cruelty to a child’s
physical, moral, or mental well-being.” We subsequently held
that the definition of “crime of child abuse” supplied in Mat-
ter of Rodriguez-Rodriguez was dictum and was not adopted
in a manner that constitutes a “statutory interpretation that
carries the ‘force of law,’ ” and so did not deserve Chevron
deference. See Velazquez-Herrera, 466 F.3d at 783. We
remanded to the BIA to issue a precedential decision that
would authoritatively define “crime of child abuse.” See id.
The Board’s decision in Matter of Velazquez-Herrera is the
product of that remand.
The government’s position is that the Matter of Velazquez-
Herrera definition is not only “consistent” with Matter of
Rodriguez-Rodriguez, but is an “expansion” of the Matter of
PACHECO FREGOZO v. HOLDER 10897
Rodriguez-Rodriguez definition—in other words, Matter of
Velazquez-Herrera potentially reaches broader conduct than
did Matter of Rodriguez-Rodriguez. The government main-
tains that if we disagree, a remand to the BIA would be appro-
priate.
We are convinced that a remand is not necessary in this
case. Aside from according Chevron deference to the Board’s
interpretation of a “crime of child abuse” in the INA, which
we do, we review de novo whether the California conviction
is a removable offense. This inquiry involves parsing the ele-
ments of a state criminal statute to determine whether it crimi-
nalizes conduct that falls outside of the generic federal
offense, a task for which, as we have noted, the BIA lacks any
particular statutory expertise that would be brought to bear on
remand. See Fernandez-Ruiz v. Gonzales, 466 F.3d at 1133
(9th Cir. 2006) (distinguishing INS v. Ventura, 537 U.S. 12(2001) (per curiam)). Morever, accepting as true the govern-
ment’s contention that Matter of Velazquez-Herrera is consis-
tent with and broader than Matter of Rodriguez-Rodriguez, it
follows necessarily that if, as we determine, there is no cate-
gorical match under Matter of Velazquez-Herrera, there is no
categorical match under the narrower definition supplied in
Matter of Rodriguez-Rodriguez.
3.
We therefore proceed to consider the impact of the BIA’s
Matter of Velazquez-Herrera opinion on this case. Matter of
Velazquez-Herrera emphasizes that “child abuse” is a “well-
recognized legal concept, distinct from the independent terms
‘child’ and ‘abuse,’ ” and presumed “that Congress intended
it to be construed as such.” 24 I. & N. Dec. at 508. Observing
that one reason Congress expanded the criminal grounds for
removability was to create “a comprehensive statutory
scheme to cover crimes against children,” the BIA concluded
that “Congress clearly intended to single out those who have
10898 PACHECO FREGOZO v. HOLDER
been convicted of maltreating or preying upon children.” Id.
at 509.
[3] The BIA therefore interpreted “crime of child abuse” to
mean “any offense involving an intentional, knowing, reck-
less, or criminally negligent act or omission that constitutes
maltreatment of a child or that impairs a child’s physical or
mental well-being, including sexual abuse or exploitation.” Id.
at 512. “At a minimum,” the BIA indicated, “this definition
encompasses convictions for offenses involving the infliction
on a child of physical harm, even if slight [and] mental or
emotional harm, including acts injurious to morals . . . .” Id.
The BIA thus held that, although “child abuse” is not limited
to the infliction of physical harm, the perpetrator’s actions,
either intentional or criminally negligent, must actually inflict
some form of injury on a child.
The government contends that Pacheco’s California misde-
meanor child endangerment conviction is categorically a
“crime of child abuse” within the meaning of the INA. Cali-
fornia Penal Code section 273a(b) provides:
Any person who, under circumstances or conditions
other than those likely to produce great bodily harm
or death, willfully causes or permits any child to suf-
fer, or inflicts thereon unjustifiable physical pain or
mental suffering, or having the care or custody of
any child, willfully causes or permits the person or
health of that child to be injured, or willfully causes
or permits that child to be placed in a situation where
his or her person or health may be endangered, is
guilty of a misdemeanor.
Any conviction under this statute, the government maintains,
renders Pacheco statutorily ineligible for cancellation of
removal.
[4] We disagree. The full range of conduct criminalized by
California Penal Code section 273a(b) is broader than the
PACHECO FREGOZO v. HOLDER 10899
“crime[s] of child abuse” covered by section 237(a)(2)(E)(i)
as construed by the BIA in Velazquez-Herrera. The relevant
portion of the California statute criminalizes “willfully caus-
[ing] or permit[ting] . . . [a] child to be placed in a situation
where his or her person or health may be endangered.” Cal.
Penal Code § 273a(b) (emphasis added). This statutory lan-
guage clearly reaches conduct that creates only potential harm
to a child; no actual injury to a child is required for convic-
tion.
The BIA’s decision here, which characterized the offense
as “willful harm or injury to a child,” evidently did not appre-
ciate the broad scope of the “endanger[ment]” prong of Cali-
fornia Penal Code section 273a(b). For example, a parent has
been held criminally liable under the statute for placing an
unattended infant in the middle of a tall bed without a railing,
even though the child was never injured. See People v. Little,
9 Cal. Rptr. 3d 446, 449-50 (Cal. Ct. App. 2004) (holding that
such a situation, in addition to evidence of unsanitary house-
hold conditions, supported a conviction under section
273a(b)). The statute could also reach a neighbor’s failure to
fence in a swimming pool where children are present or a par-
ent’s lack of attention as a child wanders near a street or inter-
section.
[5] Moreover, the statute does not require that the circum-
stances create any particular likelihood of harm to a child. See
Little, 9 Cal. Rptr. 3d at 449 (“[The child’s] unsecured loca-
tion on a bed without restraints or railings, and the height of
the bed reasonably support a finding that the child was left in
a situation where she may have been injured by falling off the
bed.” (emphasis added)). In other words, unlike the analogous
felony provision, California Penal Code section 273a(a),5 the
5
California Penal Code section 273a(a) provides, with emphasis added:
Any person who, under circumstances or conditions likely to pro-
duce great bodily harm or death, willfully causes or permits any
10900 PACHECO FREGOZO v. HOLDER
misdemeanor provision does not require that the perpetrator
actually endanger the health or safety of the child at all—the
misdemeanor provision applies where the child’s health or
safety “may be endangered” by the circumstances. The BIA’s
definition of “child abuse,” requiring some actual injury to a
child, does not reach conduct that merely could place a child’s
health and safety at risk.
The government also relies on the principal definition of
“child abuse” provided by Black’s Law Dictionary, “[t]he
intentional or neglectful physical or emotional harm inflicted
on a child, including sexual molestation,” which the BIA cited
with approval in Matter of Velazquez-Herrera. See 24 I. & N.
Dec. at 511; BLACK’S LAW DICTIONARY 10 (8th ed. 2004). This
definition is not met either, and for the same reason: The Cali-
fornia misdemeanor child endangerment offense does not
require infliction of harm, but only some risk of harm.
There is an alternative definition of “child abuse” in
Black’s—“[a]n act or failure to act that presents an imminent
risk of serious harm to a child.” Id. The government does not
here rely on this alternative definition, with good reason. Neg-
ligent or intentional conduct that places a child in situations
in which serious harm is imminently likely could fairly con-
stitute “impairment” of a child’s well-being. The misdemea-
nor California statute under which Pacheco was convicted,
however, does not conform to the alternative definition, as it
applies “under circumstances or conditions other than those
likely to produce great bodily harm or death.” Cal. Penal
Code § 273a(b) (emphasis added). Cf. United States v.
child to suffer, or inflicts thereon unjustifiable physical pain or
mental suffering, or having the care or custody of any child, will-
fully causes or permits the person or health of that child to be
injured, or willfully causes or permits that child to be placed in
a situation where his or her person or health is endangered, shall
be punished by imprisonment in a county jail not exceeding one
year, or in the state prison for two, four, or six years.
PACHECO FREGOZO v. HOLDER 10901
Pallares-Galan, 359 F.3d 1088, 1100, 1102 (9th Cir. 2004)
(holding that a misdemeanor crime of annoying or molesting
a child was not categorically a crime of “sexual abuse of a
minor,” even though a felony version of the statute was cate-
gorically such a crime, observing that “[t]he misdemeanor
statute at issue here applies to less serious conduct”).
In short, California Penal Code section 273a(b) makes
criminal conduct that creates only the bare potential for non-
serious harm to a child, and so lies outside the reach of the
“crime of child abuse” category in the INA. Because it
includes such conduct, the statute goes beyond “singl[ing] out
those who have been convicted of maltreating or preying
upon children,” and lies outside the statutory goal of “facili-
tating the removal of child abusers in particular.” Matter of
Velazquez-Herrera, 24 I. & N. Dec. at 509.
[6] We therefore conclude that a conviction under Califor-
nia Penal Code section 273a(b) is not categorically a “crime
of child abuse” within the meaning of section 237(a)(2)(E)(i)
of the INA.
C.
Holding that the state statute of conviction is broader than
the generic federal offense does not end our analysis. Where,
as here, there is no categorical match, we may in some cir-
cumstances apply the modified categorical approach, looking
to the record of conviction to determine whether the conduct
of which Pacheco was convicted necessarily would fall under
the definition of a “crime of child abuse” within the meaning
of the INA. See Mandujano-Real v. Mukasey, 526 F.3d 585,
589 (9th Cir. 2008).
In conducting a modified categorical analysis, the inquiry
is limited to “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defen-
10902 PACHECO FREGOZO v. HOLDER
dant assented.” Shepard v. United States, 544 U.S. 13, 16
(2005). We may also consider “comparable” judicial docu-
ments of sufficient reliability. See United States v. Snellenber-
ger, 548 F.3d 699, 701-02 (9th Cir. 2008) (en banc) (holding
that “minute orders” are judicial documents of “equal reliabil-
ity” as those listed in Shepard and so may be consulted in
applying the modified categorical analysis). It is the govern-
ment’s burden “to establish clearly and unequivocally [that]
the conviction was based on all of the elements of a qualify-
ing predicate offense,” through such documents and other “ju-
dicially noticeable facts.” Quintero-Salazar, 506 F.3d at 694(internal quotation omitted).
[7] Because the BIA concluded that Pacheco’s state convic-
tion was categorically a conviction of a “crime of child
abuse,” it did not conduct the modified categorical analysis.
At oral argument, the government contended that if we con-
clude that there is no categorical match, we should remand the
petition to the BIA to apply the modified categorical analysis
in the first instance.6 We agree.
We have in the past declined to remand to the BIA where
only legal questions remain and these questions do not invoke
the Board’s expertise; all relevant evidence regarding the con-
viction had been presented to the BIA in earlier proceedings;
and the BIA had already once determined that the offense fell
within the generic definition of the crime, even if only at the
categorical stage. See Latu, 547 F.3d at 1076; Ruiz-Vidal v.
Gonzales, 473 F.3d 1072, 1079-80 (9th Cir. 2007);
6
We note that where the government has not argued that the modified
categorical approach applies, our inquiry ends after conducting the cate-
gorical analysis, and we need not engage in the modified categorical
inquiry. See Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir. 2008);
Mandujano-Real, 526 F.3d at 589. Here, the government did contend, in
its brief and at oral argument, that we must apply the modified categorical
analysis if we conclude, as we do, that there is no categorical match
between the generic federal offense and the statute of conviction.
PACHECO FREGOZO v. HOLDER 10903
Fernandez-Ruiz, 466 F.3d at 1133-35. Not all of these condi-
tions are applicable here.
First, the record as currently constituted contains two possi-
ble judicially noticeable documents relevant to the modified
categorical analysis—a misdemeanor criminal complaint and
a minute order7 that records Pacheco’s nolo plea and sentence
—that, when read together, reveal some factual ambiguity
never addressed by the BIA. The criminal complaint, as ini-
tially written, charges Pacheco under California Penal Code
section 273a(a), the more serious provision applicable to “cir-
cumstances or conditions likely to produce great bodily
harm,” and virtually parrots the statutory language for that
subsection. The complaint was amended, however, to allege
subsection (b) instead, as both handwriting on the complaint
and the minute order reveal: A notation appears at the begin-
ning of the minute order stating that the “People amend
counts 2 & 3 to alledge [sic]: 273(a)(b) pc.”8
One reasonable reading of the minute order is that the state
amended the charges to substitute the statutory language of
subsection (b) for that of subsection (a), initially alleged. We
note that a no contest plea to charges that merely restate the
language of a statute that is not a categorical match cannot
7
We refer to the record document that memorializes Pacheco’s arraign-
ment, plea, and sentence as a “minute order” even though that term does
not appear on the face of the document. The document does appear similar
to the minute order relied on in Snellenberger, as a document “prepared
by a court official at the time the guilty plea is taken (or shortly after-
ward), and that official is charged by law with recording proceedings
accurately.” 548 F.3d at 702. At oral argument, however, Pacheco con-
tended that no document in the record properly establishes his plea or the
court’s judgment of conviction. For the purposes of our discussion here,
we assume, without deciding, that these two documents are properly
before us. Our discussion does not bind the BIA on remand to accept these
documents.
8
The recorder must have meant 273a(b), the correct statutory designa-
tion for the offense.
10904 PACHECO FREGOZO v. HOLDER
conclusively establish that a defendant admitted to conduct
falling entirely within the generic federal definition of a
crime. See United States v. Vidal, 504 F.3d 1072, 1088 (9th
Cir. 2007) (en banc); United States v. Lopez-Montanez, 421
F.3d 926, 931 (9th Cir. 2005). Another possible reading is that
the state only decided to charge Pacheco under subsection (b),
while continuing to assert the factual allegations in the initial
complaint. The BIA never addressed this critical ambiguity,
but may do so on remand. If it concludes that the factual alle-
gations of the initial complaint remained, it will then have to
decide whether those allegations were admitted to, and also
whether they establish the generic “crime of child abuse.”
Second, the definition of a “crime of child abuse” supplied
in Matter of Velazquez-Herrera was unavailable to the BIA
when it rendered its decision in this case. The BIA therefore
could not have considered Pacheco’s conviction record in
light of the broader definition of “child abuse” in Matter of
Velazquez-Herrera, and so should have the opportunity to do
so on remand.
We note that in conducting the modified categorical analy-
sis on remand, the BIA should observe two points of law that
have been clarified since the Board’s decision in this case and
are particularly relevant to Pacheco’s record of conviction as
currently composed. First, “to identify a conviction as the
generic offense through the modified categorical approach,
when the record of conviction comprises only the indictment
and the judgment, the judgment must contain the critical
phrase ‘as charged in the Information.’ ” Vidal, 504 F.3d at
1087 (internal quotation omitted). The minute order memori-
alizing Pacheco’s plea leaves the box next to “as charged”
unchecked.
Second, a defendant’s nolo contendere plea pursuant to
People v. West, 91 Cal. Rptr. 385 (Cal. 1970), does not estab-
lish factual guilt, and therefore, “unless the record of the plea
proceeding reflects that the defendant admitted to facts, a
PACHECO FREGOZO v. HOLDER 10905
West plea, without more, does not establish the factual predi-
cate to support” a determination that the conviction was
generic. Vidal, 504 F.3d at 1089. The minute order indicates
that Pacheco entered a West plea.
III.
[8] With these considerations in mind, we grant the petition
for review, and remand for further proceedings, including the
application of the modified categorical analysis.
Petition GRANTED; REMANDED.