                                                                              FILED
                             NOT FOR PUBLICATION                              DEC 15 2015

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



                              FOR THE NINTH CIRCUIT


FERNANDO BERNAL-BERMUDEZ,                        No. 13-72198

               Petitioner,                       Agency No. A076-221-017

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Fernando Bernal-Bermudez, 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 decision finding him removable and denying his

application for adjustment of status in conjunction with a waiver of inadmissibility


          *
             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).
under Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). We

have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law.

Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014). We deny in part and grant

in part the petition for review, and remand.

      The agency correctly determined that Bernal-Bermudez’s conviction under

California Penal Code § 288(a), for attempting to commit a lewd and lascivious act

on a child less than 14 years of age, constitutes “sexual abuse of a minor,” an

aggravated felony under 8 U.S.C. § 1101(a)(43)(A) that renders him removable

under 8 U.S.C. § 1227(a)(2)(A)(iii). This court has “repeatedly held that California

Penal Code § 288(a) categorically involves ‘sexual abuse of a minor’ under 8

U.S.C. § 1101(a)(43)(A).” United States v. Farmer, 627 F.3d 416, 419-20 (9th

Cir. 2010) (citing United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.

1999); United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir. 2003)). To the

extent Bernal-Bermudez contends that this line of cases was wrongly decided, a

three judge panel cannot reconsider or overrule circuit precedent in the absence of

an intervening Supreme Court or en banc decision. See Avagyan v. Holder, 646

F.3d 672, 677 (9th Cir. 2011).




                                          2                                       13-72198
      At the time it decided this case, the BIA did not have the benefit of this

court’s decision in Negrete-Ramirez v. Holder, concluding that an adjustment of

status after entering the country does not constitute an “admission” under INA

§ 212(h). 741 F.3d 1047, 1054 (9th Cir. 2014). Accordingly, we remand for the

BIA to consider Bernal-Bermudez’s eligibility for a § 212(h) waiver in light of this

intervening law.

      Each party shall bear its own costs for this petition for review.

      PETITION DENIED in part; GRANTED in part; REMANDED.




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