                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 06 2012

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

KAMAL AHMED,                                     No. 07-72885

              Petitioner,                        Agency No. A045-051-570

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

              Respondent.


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

                      Argued and Submitted February 6, 2012
                               Pasadena, California

Before: O’SCANNLAIN and BYBEE, Circuit Judges, and HAYES, District
Judge.**

       Kamal Ahmed petitions for review of the order of the Board of Immigration

Appeals (“BIA”) affirming the conclusion of the Immigration Judge (“IJ”) that he

is removable because his Nevada conviction for open or gross lewdness counts as a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
conviction for sexual abuse of a minor, an aggravated felony. Because the BIA

used the “modified categorical approach” in reaching its conclusion, we deferred

submission of this case pending United States v. Aguila-Montes de Oca, 655 F.3d

915 (9th Cir. 2011) (en banc).

      The IJ compared the crime of conviction in this case to the generic crime of

sexual abuse of a minor as articulated in In re Rodriguez-Rodriguez, 22 I. & N.

Dec. 991, 995–96 (B.I.A. 1999). See Shepard v. United States, 544 U.S. 13, 16

(2005); Taylor v. United States, 495 U.S. 575, 602 (1990). Subsequently, we held

in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1156–58 & n.7 (9th Cir. 2008)

(en banc), abrogated on other grounds by Aguila-Montes, 655 F.3d 915, that the

vague definition in Rodriguez-Rodriguez was contrary to congressional intent.

Given the clear language criticizing the BIA’s operative definition, we conclude

that its use in this case was reversible error.1

      Furthermore, the BIA gave a lengthy analysis of its understanding of the

modified categorical approach. In doing so, it addressed much of our precedent at

the time, and it responded in part to concerns expressed in Judge Kozinski’s


      1
       We have since held in United States v. Medina-Villa that another, more
general definition of sexual abuse of a minor is also viable. 567 F.3d 507, 514–16
(9th Cir. 2009). We express no opinion here as to how the definition in
Rodriguez-Rodriguez compares to that in Medina-Villa or what kind of definition,
should it be adopted by BIA, would be upheld under either Estrada–Espinoza or
Medina-Villa.
concurrence in Li v. Ashcroft that reliance on the modified categorical approach in

a case in which the statute of conviction was missing an element of the generic

offense would be unfair to defendants, 389 F.3d 892, 899–901 (9th Cir. 2004)

(Kozinski, J., concurring). Because we addressed these issues in Aguila-Montes,

655 F.3d at 922–26 & n.6, 937–38, we believe remand is appropriate so that the

BIA can respond to these developments in the law and determine whether the

factfinder in this case was “actually required,” id. at 935–40, to find that the victim

was a minor.

      PETITION GRANTED AND REMANDED.
