                                                                          FILED
                              NOT FOR PUBLICATION                          JAN 05 2012

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




                              FOR THE NINTH CIRCUIT


 FRANCISCO PRADO-LOPEZ,                                No. 08-72997

               Petitioner,                             Agency No. A013-624-036

   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 December 9, 2011
                             San Francisco, California

Before: O'SCANNLAIN, COWEN,** and BERZON, Circuit Judges.

        We grant petitioner Francisco Prado-Lopez's request for review of an order

of the Board of Immigration Appeals (BIA) reversing the Immigration Judge's (IJ)




        *
         This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
        **
          The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
grant of a waiver of inadmissibility and ordering Prado-Lopez removed from the

United States based on the IJ's finding that he is deportable as an aggravated felon.

We affirm the IJ's and BIA's conclusions that Prado-Lopez's crime in violation of

California Penal Code y 288.5(a) constitutes sexual abuse of a minor. Because it is

unclear from its opinion whether the BIA sufficiently considered Prado-Lopez's

rehabilitation as a factor justifying a waiver of inadmissibility, we remand to the

BIA for consideration of that factor.

      1. Although Prado-Lopez did not exhaust the issue of whether the offense he

committed in violation of California Penal Code y 288.5(a) constitutes sexual

abuse of a minor, he is excused from exhausting his administrative remedies on

this issue because it is 'based on events that occurr[ed] after briefing to the BIA

ha[d] been completed.' Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004). Here,

that event was our decision in Estrada-Espinoza v. Muµasey, 546 F.3d 1147, 1154

(9th Cir. 2008) (en banc), in which we held that California's statutory rape statute

is not categorically sexual abuse of a minor. Prado-Lopez argues that Estrada-

Espinoza casts doubt on our previous classification of the crime for which he was

convicted as sexual abuse of a minor. See United States v. Baron-Medina, 187

F.3d 1144 (9th Cir. 1999) (California Penal Code y 288(a) constitutes sexual abuse

of a minor). Our decision in United States v. Medina-Villa, 567 F.3d 507, 516 (9th


                                           2
Cir. 2009), however, squarely foreclosed the application of Estrada-Espinoza to

California Penal Code y 288(a), of which section 288.5(a) is a subset. Since

California Penal Code y 288.5(a) is a subset of California Penal Code               y

288(a), the crime committed by petitioner constitutes sexual abuse of a minor and

an aggravated felony under the INA. Therefore, we affirm the BIA on this issue.

      2. We have jurisdiction to review constitutional issues and questions of law

presented by non-citizens removable for committing an aggravated felony. Èiao

Fei Zheng v. Holder, 644 F.3d 829, 832-33 (9th Cir. 2011). Under controlling law,

the BIA was required to consider evidence of Prado-Lopez's rehabilitation. Id. at

833. The BIA enumerated several positive equities, and articulated how each one

was undermined by the commission of the crime. But the BIA did not mention, and

we do not µnow whether it considered, evidence of Prado-Lopez's rehabilitation.

Rehabilitation is a factor that the IJ discussed, specifically singled out in the

conclusion granting the waiver, and found especially compelling in granting the

discretionary relief. 'The BIA's failure to consider or even mention such a

significant factor constitutes an abuse of discretion.' Id. at 834. Therefore, we

remand to the BIA to expressly evaluate the evidence of rehabilitation.

      AFFIRMED IN PART AND REMANDED IN PART.




                                            3
                                                                               FILED
Prado-Lopez v. Holder, No. 08-72997                                            JAN 05 2012

                                                                         MOLLY C. DWYER, CLERK
O'SCANNLAIN, Circuit Judge, dissenting in part.                           U.S . CO U RT OF AP PE A LS




       I concur in today's decision that Prado-Lopez is deportable as a result of his

conviction under California Penal Code y 288.5(a).

       Nevertheless, I respectfully dissent from the remand of his case to the Board

of Immigration Appeals ('BIA'). Prado-Lopez's petition for review comes down

to a challenge to the manner in which the BIA applied controlling case law. While

'misapplication of relevant case law . . . . would have constituted a viable

argument that the BIA had abused its discretion,' it does not come within the

'colorable due process claims over which we may [now] exercise jurisdiction.'

Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir. 2001). The BIA's failure to

mention particular evidence does not change the outcome because we presume the

BIA is truthful when it recites--as it did here--that it reviewed the record. Cf.

Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir. 2000). As such, I would

dismiss Prado-Lopez's petition for review of the BIA's denial of discretionary

relief for lacµ of jurisdiction.
