FILED
NOT FOR PUBLICATION JAN 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
FRANCISCO PRADO-LOPEZ, No. 08-72997
Petitioner, Agency No. A013-624-036
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2011
San Francisco, California
Before: O'SCANNLAIN, COWEN,** and BERZON, Circuit Judges.
We grant petitioner Francisco Prado-Lopez's request for review of an order
of the Board of Immigration Appeals (BIA) reversing the Immigration Judge's (IJ)
*
This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
**
The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
grant of a waiver of inadmissibility and ordering Prado-Lopez removed from the
United States based on the IJ's finding that he is deportable as an aggravated felon.
We affirm the IJ's and BIA's conclusions that Prado-Lopez's crime in violation of
California Penal Code y 288.5(a) constitutes sexual abuse of a minor. Because it is
unclear from its opinion whether the BIA sufficiently considered Prado-Lopez's
rehabilitation as a factor justifying a waiver of inadmissibility, we remand to the
BIA for consideration of that factor.
1. Although Prado-Lopez did not exhaust the issue of whether the offense he
committed in violation of California Penal Code y 288.5(a) constitutes sexual
abuse of a minor, he is excused from exhausting his administrative remedies on
this issue because it is 'based on events that occurr[ed] after briefing to the BIA
ha[d] been completed.' Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004). Here,
that event was our decision in Estrada-Espinoza v. Muµasey, 546 F.3d 1147, 1154
(9th Cir. 2008) (en banc), in which we held that California's statutory rape statute
is not categorically sexual abuse of a minor. Prado-Lopez argues that Estrada-
Espinoza casts doubt on our previous classification of the crime for which he was
convicted as sexual abuse of a minor. See United States v. Baron-Medina, 187
F.3d 1144 (9th Cir. 1999) (California Penal Code y 288(a) constitutes sexual abuse
of a minor). Our decision in United States v. Medina-Villa, 567 F.3d 507, 516 (9th
2
Cir. 2009), however, squarely foreclosed the application of Estrada-Espinoza to
California Penal Code y 288(a), of which section 288.5(a) is a subset. Since
California Penal Code y 288.5(a) is a subset of California Penal Code y
288(a), the crime committed by petitioner constitutes sexual abuse of a minor and
an aggravated felony under the INA. Therefore, we affirm the BIA on this issue.
2. We have jurisdiction to review constitutional issues and questions of law
presented by non-citizens removable for committing an aggravated felony. Èiao
Fei Zheng v. Holder, 644 F.3d 829, 832-33 (9th Cir. 2011). Under controlling law,
the BIA was required to consider evidence of Prado-Lopez's rehabilitation. Id. at
833. The BIA enumerated several positive equities, and articulated how each one
was undermined by the commission of the crime. But the BIA did not mention, and
we do not µnow whether it considered, evidence of Prado-Lopez's rehabilitation.
Rehabilitation is a factor that the IJ discussed, specifically singled out in the
conclusion granting the waiver, and found especially compelling in granting the
discretionary relief. 'The BIA's failure to consider or even mention such a
significant factor constitutes an abuse of discretion.' Id. at 834. Therefore, we
remand to the BIA to expressly evaluate the evidence of rehabilitation.
AFFIRMED IN PART AND REMANDED IN PART.
3
FILED
Prado-Lopez v. Holder, No. 08-72997 JAN 05 2012
MOLLY C. DWYER, CLERK
O'SCANNLAIN, Circuit Judge, dissenting in part. U.S . CO U RT OF AP PE A LS
I concur in today's decision that Prado-Lopez is deportable as a result of his
conviction under California Penal Code y 288.5(a).
Nevertheless, I respectfully dissent from the remand of his case to the Board
of Immigration Appeals ('BIA'). Prado-Lopez's petition for review comes down
to a challenge to the manner in which the BIA applied controlling case law. While
'misapplication of relevant case law . . . . would have constituted a viable
argument that the BIA had abused its discretion,' it does not come within the
'colorable due process claims over which we may [now] exercise jurisdiction.'
Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir. 2001). The BIA's failure to
mention particular evidence does not change the outcome because we presume the
BIA is truthful when it recites--as it did here--that it reviewed the record. Cf.
Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir. 2000). As such, I would
dismiss Prado-Lopez's petition for review of the BIA's denial of discretionary
relief for lacµ of jurisdiction.