FILED
NOT FOR PUBLICATION DEC 16 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO MORENO-ALVIZO, aka No. 05-73906
Alejandro Moreno,
Agency No. A090-982-194
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2009**
San Francisco, California
Before: NOONAN, KLEINFELD and IKUTA, Circuit Judges.
Because section 261.5(d) of the California Penal Code lacks the element of
knowledge required by 18 U.S.C. § 2243, it does not meet the definition of the
generic federal crime of “sexual abuse of a minor” under Estrada-Espinoza v.
*
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).
Mukaskey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). See Pelayo-Garcia v.
Holder, ___ F.3d ___ (9th Cir. 2009). Likewise, because section 261.5(d) does not
expressly include abuse of a minor as an element of the crime and is not limited to
conduct targeting younger children, it fails to meet the alternative test for “sexual
abuse of a minor” articulated by United States v. Medina-Villa, 567 F.3d 507, 513
(9th Cir. 2009). See Pelayo-Garcia, ___ F.3d at ___. Accordingly, the BIA erred
in determining that Moreno-Alvizo’s prior conviction is categorically an
aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Id. at ___.
The government has not asked us to undertake a modified categorical
analysis, nor do the conviction documents in the record establish that petitioner
was convicted of a crime involving sexual conduct with a younger child.
Accordingly, the IJ and BIA erred in concluding that petitioner was deportable due
to his prior conviction
PETITION FOR REVIEW GRANTED.