Alfredo Chavez 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NOT FOR PUBLICATION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
ALFREDO CHAVEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 04-71040
Agency No. A011-349-706
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Alfredo Chavez, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
FILED
JAN 06 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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04-71040 2
We review de novo questions of law, Pelayo-Garcia v. Holder, 589 F.3d 1010,
1012 (9th Cir. 2009), and we grant the petition for review and remand.
Chavez’s 2002 conviction for oral copulation with a minor in violation of
California Penal Code § 288a(b)(1), is not categorically an aggravated felony with
respect to either of the federal generic definitions we have adopted for “sexual
abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), because the statute of
conviction lacks the elements of abuse, a four-year age difference between the
defendant and the victim, and a victim under the age of 16. See Rivera-Cuartas v.
Holder, 605 F.3d 699, 701-02 (9th Cir. 2010); Estrada-Espinoza v. Mukasey, 546
F.3d 1147, 1159 (9th Cir. 2008), abrogated on other grounds by United States v.
Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011) (per curiam). We therefore
remand for the BIA to apply the modified categorical approach in the first instance.
See Aguila-Montes De Oca, 655 F.3d at 928 (proceeding to the modified
categorical approach is permissible where the statute of conviction is missing a
requisite element).
PETITION FOR REVIEW GRANTED; REMANDED.

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