Alejandro Moreno-Alvizo, aka Alejandro Moreno v. ERIC H. HOLDER Jr., Attorney General

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO MORENO-ALVIZO, aka
Alejandro Moreno,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-73906
Agency No. A090-982-194
MEMORANDUM *
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.
FILED
DEC 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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