                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 06 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



ALFREDO CHAVEZ,                                   No. 04-71040

               Petitioner,                        Agency No. A011-349-706

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

               Respondent.



                      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.




          *
             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).
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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