                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 20 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


MOISES NAVARRO-SOQUI, aka Moises                 No. 04-76126
Navarro aka Jose Manuel Cota,
                                                 Agency No. A044-776-648
             Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

             Respondent.


                     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


        *
             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).
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).




                                          -2-
      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.




                                         -3-
                                                                                FILED
Navarro-Soqui v Holder 04-76126                                                  JAN 20 2010

                                                                            MOLLY C. DWYER, CLERK
Pregerson, J., dissenting:                                                    U.S. COURT OF APPEALS



       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.
