Juan Hernandez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION OCT 6 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JUAN ANTONIO HERNANDEZ, a.k.a. No. 10-73465
Juan Duran,
Agency No. A075-119-371
Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted September 27, 2011 **

Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

Juan Antonio Hernandez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ 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, Khan v. Holder, 584 F.3d 773, 776 (9th Cir.

2009), and we deny the petition for review.

The agency properly concluded that Hernandez’s conviction under

California Penal Code § 288(a) is categorically a sexual abuse of a minor

aggravated felony under 8 U.S.C. § 1101(a)(43)(A) that renders Hernandez

removable under 8 U.S.C. § 1227(a)(2)(A)(iii). See United States v.

Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). Hernandez’s contentions to

the contrary are unavailing. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1013-14

(9th Cir. 2009) (stating that 18 U.S.C. § 2243 defines the generic offense of sexual

abuse of a minor with respect to statutory rape crimes, but not with respect to

sexual crimes against minors involving abuse); see also United States v. Castro,

607 F.3d 566, 569 (9th Cir. 2010) (stating that California Penal Code § 288(a),

which applies only where the minor is younger than fourteen, addresses conduct

that is per se abusive).

PETITION FOR REVIEW DENIED.

2 10-73465