FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE IGNACIO RIVERA-CUARTAS,
Petitioner, No. 07-74999
v.
Agency No.
A013-291-613
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2010*
San Francisco, California
Filed May 20, 2010
Before: Pamela Ann Rymer and M. Margaret McKeown,
Circuit Judges, and Patricia C. Fawsett,,
Senior District Judge.**
Opinion by Judge McKeown
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
7249
RIVERA-CUARTAS v. HOLDER 7251
COUNSEL
Erika Anne Kreider, Tuscon, Arizona, for the petitioner.
Nancy E. Friedman, United States Department of Justice,
Civil Division/Office of Immigration Litigation, Washington,
D.C., for the respondent.
OPINION
McKEOWN, Circuit Judge:
We consider here whether Arizona Revised Statutes § 13-
1405, which criminalizes sexual conduct with a minor under
eighteen years of age, constitutes an aggravated felony for the
purposes of immigration law. Because § 13-1405 does not
meet the federal generic offense of “sexual abuse of a minor,”
we hold that it is not an aggravated felony and grant the peti-
tion for review.
Jose Ignacio Rivera-Cuartas, a longtime lawful permanent
resident from Colombia, was convicted under § 13-1405 for
performing oral sex on a sixteen-year-old boy and sentenced
to three years probation. In removal proceedings, the immi-
gration judge (“IJ”) found Rivera deportable for having been
convicted of the aggravated felony of “sexual abuse of a
minor” as defined at 8 U.S.C. § 1101(a)(43)(A). The Board of
Immigration Appeals (“BIA”) affirmed.
7252 RIVERA-CUARTAS v. HOLDER
This case is squarely controlled by two recent decisions
that address the generic definition of “sexual abuse of a
minor” under 8 U.S.C. § 1101(a)(43)(A): Estrada-Espinoza v.
Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), and United
States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009). See also
Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-14 (9th Cir.
2009) (reviewing cases). Both cases were decided after brief-
ing was completed in this case. Nonetheless, the application
of the framework is straightforward.
[1] In Estrada-Espinoza, we explained that, for the pur-
poses of § 1101(a)(43)(A), “Congress has enumerated the ele-
ments of the offense of ‘sexual abuse of a minor’ at 18 U.S.C.
§ 2243.” 546 F.3d at 1152. A statute of conviction qualifies
as the generic offense of “sexual abuse of a minor” if it
includes the following elements: (1) a mens rea of knowingly
engaging in; (2) a sexual act (3) with a minor who is at least
twelve but not yet sixteen years of age; and (4) an age differ-
ence of at least four years between the defendant and the
minor. Id. at 1152, 1158 (citing 18 U.S.C. § 2243).
[2] In Medina-Villa, we distinguished Estrada-Espinoza on
the ground that 18 U.S.C. § 2243 “encompassed statutory rape
crimes only” and therefore was not the only federal generic
definition of “sexual abuse of a minor.” 567 F.3d at 514-15.
Statutory rape crimes are “sexual offenses involving older as
well as younger adolescents, not crimes prohibiting conduct
harmful to younger children specifically.” Id. at 514. Under
Medina-Villa, a crime that is not a statutory rape crime under
Estrada-Espinoza may still meet the federal generic offense
of “sexual abuse of a minor” if: (1) the conduct prohibited by
the criminal statute is sexual, (2) the statute protects a minor,
and (3) the statute requires abuse. Id. at 513. A criminal stat-
ute includes the element of “abuse” if it expressly prohibits
conduct that causes “physical or psychological harm in light
of the age of the victim in question.” Id. (internal quotation
marks omitted).
RIVERA-CUARTAS v. HOLDER 7253
[3] The statute, § 13-1405, does not meet the generic defi-
nition of “sexual abuse of a minor” under either framework.
Section 13-1405 provides that “[a] person commits sexual
conduct with a minor by intentionally or knowingly engaging
in sexual intercourse or oral sexual contact with any person
who is under eighteen years of age.” ARIZ. REV. STAT. § 13-
1405(A). On its face, § 13-1405 does not meet the definition
for statutory rape crimes set forth in Estrada-Espinoza for two
reasons: (1) it lacks the age difference requirement; and (2) is
broader than the generic offense with respect to the age of the
minor because the statute applies to persons under eighteen
years of age. As a result, the conduct proscribed in § 13-1405
exceeds the generic offense. See Estrada-Espinoza, 546 F.3d
at 1159 (applying same analysis to analogous California stat-
utes).
In addition, because § 13-1405 lacks the age difference
requirement, the modified categorical approach does not
apply. As we explained in Navarro-Lopez v. Gonzales,
“[w]hen the crime of conviction is missing an element of the
generic crime altogether,” the modified categorical approach
is inapposite because the court “can never find that ‘a jury
was actually required to find all the elements of’ the generic
crime.” 503 F.3d 1063, 1073 (9th Cir. 2007) (quoting Li v.
Ashcroft, 389 F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J.,
concurring)); accord Estrada-Espinoza, 546 F.3d at 1159.
[4] Section 13-1405 also does not meet the generic defini-
tion of “sexual abuse of a minor” under the Medina-Villa
framework as it lacks the element of “abuse.” The statute
“does not expressly include physical or psychological abuse
of a minor as an element of the crime,” nor does it “criminal-
ize[ ] only conduct that is per se abusive, because it is not lim-
ited to conduct targeting younger children.” Pelayo-Garcia,
589 F.3d at 1015. And, because § 13-1405 lacks the element
of “abuse,” the modified categorical approach does not apply.
See Navarro-Lopez, 503 F.3d at 1073. Section 13-1405 is not
an aggravated felony.
7254 RIVERA-CUARTAS v. HOLDER
In his opening brief, Rivera “concedes” that his offense
constitutes a crime involving moral turpitude and argues that
his crime is subject to the petty offense exception at 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II). But the government solely charged
Rivera with removability as an aggravated felon, and the IJ
and BIA ordered removal on this basis alone. The government
did not charge removal on the moral turpitude charge or any
other ground of removability. Therefore, we vacate Rivera’s
removal order without remanding for further administrative
proceedings.
The petition for review is GRANTED.