Moises Navarro-Soqui, aka Moises Navarro aka Jose Manuel Cota 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NOT FOR PUBLICATION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
MOISES NAVARRO-SOQUI, aka Moises
Navarro aka Jose Manuel Cota,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 04-76126
Agency No. A044-776-648
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 2, 2008**
Pasadena, California
Before: PREGERSON, HALL and N.R. SMITH, Circuit Judges.
An immigration judge found Moises Navarro-Soqui (“Navarro-Soqui”)
removable as an aggravated felon due to his conviction under Cal. Penal Code §
288(c)(1) and ordered him removed to Mexico. The Board of Immigration
FILED
JAN 20 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Appeals (“BIA”) affirmed the immigration judge and dismissed Navarro-Soqui’s
appeal. Navarro-Soqui petitions this court for review. This Court has jurisdiction
pursuant to 8 U.S.C. § 1252, and we deny the petition.
In determining whether a state criminal conviction constitutes an aggravated
felony under federal law, this court applies the categorical approach set out in
Taylor v. United States, 495 U.S. 575, 599-602 (1990). There is a categorical
match between Cal. Penal Code § 288(c)(1) and the generic crime of sexual abuse
of a minor—an aggravated felony. This Court previously has held that a
conviction under Cal. Penal Code § 288(a), which criminalizes lewd and lascivious
acts with minors under 14 years old, constitutes an aggravated felony. See United
States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009); United States v. Baron-
Medina, 187 F.3d 1144 (9th Cir. 1999). Subsection (c)(1) differs from subsection
(a) in that it addresses lewd and lascivious acts solely with fourteen and fifteen
year old minors and requires that the perpetrator be more than ten years older than
the minor. These distinctions are immaterial. See Estrada-Espinoza v. Mukasey,
546 F.3d 1147, 1152 (9th Cir. 2008) (en banc) (holding that “sexual abuse of a
minor” involves a minor between the ages of 12 and 16 and an age difference of at
least four years).

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Because Navarro-Soqui’s conviction constitutes an aggravated felony, the
BIA properly dismissed his appeal. It is irrelevant for purposes of federal law that
Navarro-Soqui’s state conviction was reduced to a misdemeanor. See United States
v. Alvarez-Gutierrez, 394 F.3d 1241, 1245 (9th Cir. 2005).
For these reasons we DENY the petition for review.

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Navarro-Soqui v Holder 04-76126
Pregerson, J., dissenting:
Navarro-Soqui pleaded guilty to a violation of Cal. Penal Code § 288(c)(1),
which was later reduced to a misdemeanor. Navarro-Soqui’s lawyer never
informed him of any potential adverse immigration consequences, nor does the
record indicate that the state court provided any such warning.
In declining to sentence Navarro-Soqui to even a single day of prison, the
state court noted that he works, stays home, and helps to support his mother and
family. That family includes a wife of ten years and three children, all of whom
are United States citizens. By obdurately labeling Navarro-Soqui an “aggravated
felon” and removing him from the country, the federal government is effectively
punishing an entire household of innocents. Navarro-Soqui’s wife and children
must now either abandon the United States of America, the country of their birth,
or rend their family asunder. To force American citizens into such an agonizing
choice is as cold-hearted as it is unjust. I would therefore grant the petition for
review.
FILED
JAN 20 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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