Enrique Rodriguez-Macias 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE RODRIGUEZ-MACIAS,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-71054
Agency No. A035-911-860
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 13, 2010
San Francisco, California
Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.
Enrique Rodriguez-Macias petitions for review of a decision by the Board of
Immigration Appeals (BIA) affirming the oral decision of an immigration judge
(IJ) finding that Rodriguez-Macias was removable based on his conviction for
child annoyance, in violation of California Penal Code § 647.6(a). We grant the
petition.
FILED
MAY 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Both parties agree that the modified categorical approach should be1
applied. Petitioner did not address the applicability of the categorical approach to
the BIA or in his opening brief, so we decline to address it now.
Applying the modified categorical approach, we must determine whether
Rodriguez-Macias’s conviction under California Penal Code § 647.6(a) constitutes
a conviction for child abuse. This court in Fregozo v. Holder, 576 F.3d 1030,1
1035 (9th Cir. 2009), looked to the BIA’s definition of child abuse as set forth in
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008). In clarifying the
BIA’s definition, this court noted that “although ‘child abuse’ is not limited to the
infliction of physical harm, the perpetrator’s actions, either intentional or
criminally negligent, must actually inflict some form of injury on a child.”
Fregozo, 576 F.3d at 1037.
Here, the relevant document shows that Rodriguez-Macias admitted that:
“On or about April 5, 2004, in Orange County, [he] willfully and unlawfully
engaged in conduct directed at an eleven year old girl which would disturb a
normal person when [he] made sexual comments towards her and this was
motivated by an unnatural sexual interest.” This document is insufficient to
determine whether Rodriguez-Macias’ section 647.6(a) conviction rises to the level
of child abuse. First, California Penal Code § 647.6(a) does not require that a child
actually suffer some injury. See People v. Lopez, 965 P.2d 713, 717 (Cal. 1998);
see, e.g., Nicanor-Romero v. Mukasey, 523 F.3d 992, 1000 (9th Cir. 2008) rev’d on

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other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009)
(citing cases noting the minimum conduct required for a conviction under the
statute). Second, Rodriguez-Macias’s statement does not show that a child was
actually injured. Thus, there is no factual basis for concluding that
Rodriguez-Macias’s section 647.6(a) conviction is a crime of child abuse and,
therefore, he is not removable under 8 U.S.C. § 1227(a)(2)(E)(i).
PETITION GRANTED.

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