Jose Ortiz-Ibanez 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 concludes this case is 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NOT FOR PUBLICATION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
JOSE ORTIZ-IBANEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Nos. 06-73942
07-74249
Agency No. A077-378-756
MEMORANDUM*
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted November 8, 2011**
Before: O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.
In these consolidated petitions for review, Jose Ortiz-Ibanez, a native and
citizen of Mexico, petitions pro se for review of the Board of Immigration
Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s
removal order and denying his motion to reopen. Our jurisdiction is governed by
FILED
NOV 08 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-74249 2
8 U.S.C. § 1252. We review de novo questions of law. Pelayo-Garcia v. Holder,
589 F.3d 1010, 1012 (9th Cir. 2009). We grant the petition for review and remand
in No. 06-73942. We dismiss the petition for review in No. 07-74249.
Ortiz-Ibanez’s conviction for third-degree rape under Oregon Revised
Statute § 163.355 is not categorically an aggravated felony with respect to either of
the federal generic definitions we have since adopted for “sexual abuse of a minor”
in 8 U.S.C. § 1101(a)(43)(A), because the statute of conviction lacks the elements
of abuse and a four-year age difference. See Rivera-Cuartas v. Holder, 605 F.3d
699, 701-02 (9th Cir. 2010). We therefore remand for the BIA to apply the
modified categorical approach in the first instance. See United States v. Aguila-
Montes De Oca, 655 F.3d 915, 928 (9th Cir. 2011) (per curiam) (proceeding to the
modified categorical approach is permissible where the statute of conviction is
missing a requisite element); Fregozo v. Holder, 576 F.3d 1030, 1039 (9th Cir.
2009).
We need not address the petition for review in No. 07-74249 in light of our
disposition in No. 06-73942.
In No. 06-73942: PETITION FOR REVIEW GRANTED;
REMANDED.
In No. 07-74249: PETITION FOR REVIEW DISMISSED.

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