Chavez v. Holder

FILED
NOT FOR PUBLICATION JAN 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALFREDO CHAVEZ, No. 04-71040
Petitioner, Agency No. A011-349-706
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.
Aguila-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 Aguila-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.
2 04-71040