                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



RODOLFO BARRIGA-MORENO,                          No. 09-71956

              Petitioner,                        Agency No. A090-640-216

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



RODOLFO BARRIGA-MORENO,                          No. 10-70373

              Petitioner,                        Agency No. A090-640-216

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted May 4, 2011
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

      Rodolfo Barriga-Moreno, a native and citizen of Mexico, petitions for

review of two final orders of the Board of Immigration Appeals (BIA). In the first,

the BIA granted Petitioner's motion to reopen, but dismissed Petitioner's appeal

from an Immigration Judge's decision finding him removable and denying his

request for a continuance. In the second, the BIA denied Petitioner's motion to

reopen his removal proceedings to apply for adjustment of status. The main issues

in this appeal are whether Petitioner's Washington conviction for indecent liberties

under Washington state law is for a crime involving moral turpitude, and whether

it constitutes a violent or dangerous crime.

      Before maµing these determinations, we must identify the crime to which

Petitioner pled guilty in state court. The record before us is unclear. The judgment

against Petitioner reflects only that he was convicted of indecent liberties under

y 9A.44.100(1), without specifying the applicable subsection. The 'offense score'

that is listed in the state court judgment for purposes of sentencing was level VI,

which relates to subsection (b), and not level VII, which relates to subsection (a).

See In re Pers. Restraint of Acron, 95 P.3d 1272, 1273 (Wash. Ct. App. 2004)

(describing offense levels). In his plea agreement Petitioner admitted by

implication only to forcible compulsion, subsection (a), stating that he was


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pleading guilty to the crime of indecent liberties 'as charged in the amended

information.' Nevertheless, Petitioner twice described in the plea agreement that

he committed sexual contact with a victim who was physically helpless due to her

age, which would be subsection (b).

      Given the lacµ of clarity with respect to Petitioner's conviction, we remand

to the BIA to determine in the first instance whether Petitioner was convicted

under subsection (a) or (b) of y 9A.44.100(1). The BIA should further analyze

whether the conduct penalized under the applicable subsection constitutes a crime

involving moral turpitude under both the categorical and modified categorical

approaches, and if so, whether it is a violent or dangerous crime.

      Petition for review GRANTED; REMANDED.




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                                                                             FILED
Barriga-Moreno v. Holder, Nos. 09-71956, 10-70373                              JUN 16 2011

                                                                         MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, concurring in part and dissenting in part:        U.S . CO U RT OF AP PE A LS




      I see no reason to remand all of the issues on appeal.

      Because we review de novo the BIA's conclusion that Barriga-Moreno was

convicted under subsection (a) of Washington Revised Code y 9A.44.100(1), and

the record indicates that he was convicted under subsection (b) instead, I would

hold that subsection (b) applies. See Li v. Ashcroft, 356 F.3d 1153, 1161 n.7 (9th

Cir. 2004) (en banc) (declining to remand because '[t]he agency has already

considered the factual and legal contentions as to [the petitioner's] claims').

      In any event, the BIA properly concluded that a conviction under any of the

subsections of the statute categorically constitutes a crime involving moral

turpitude (CIMT). In challenging the conclusion that a conviction under

subsection (b), in particular, is a CIMT, Barriga-Moreno relies on inapposite cases

that involve other subsections of the statute, or prior versions of subsection (b). I

would hold that his conviction under subsection (b) constitutes a CIMT.

      I would remand only as to whether a conviction under subsection (b) is a

violent or dangerous crime, which the BIA has not decided in the first instance.




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