                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           JAN 25 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

VIRGILIO ANAYA-ORTIZ,                            No. 03-74666

             Petitioner,                         Agency No. A092-962-367

  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 August 6, 2007
                               Pasadena, California


Before: BERZON and IKUTA, Circuit Judges, and SINGLETON, ** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
      Anaya argues that his conviction for being a felon in possession of a firearm

under California Penal Code § 12021(a)(1) does not qualify as an “aggravated

felony” conviction under 8 U.S.C. § 1101(a)(43)(E)(ii).1 We disagree.

      Under the framework articulated in Taylor v. United States, 495 U.S. 575

(1990), the IJ and BIA did not err in determining that Anaya was convicted of all

the elements of an “aggravated felony” under § 1101(a)(43)(E)(ii), and in holding

he was removable under § 1227(a)(2)(A)(iii). The state statute of conviction,

California Penal Code § 12021(a)(1), qualifies as a generic federal offense of being

a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), notwithstanding the fact

that § 922(g)(1) includes an interstate commerce element not present in the state

offense. See United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001)

(holding that a state crime of conviction need not have the interstate commerce

element contained in 18 U.S.C. § 922(g)(1) to qualify as an aggravated felony

under § 1101(a)(43)(E)(ii)).

      Anaya did not raise before the BIA (or in his brief to this court) any

argument under the modified categorical approach, concerning the adequacy of the

      1
         In this memorandum disposition, we consider only Anaya’s claim that the
IJ and BIA erred in holding that he was removable as an aggravated felon under §
1101(a)(43)(E)(ii). In a concurrently filed opinion, we address his argument that
the IJ and BIA erred is holding he was not eligible for withholding of removal
because his drunk driving conviction under California Vehicle Code § 23153(b)
does not constitute a conviction of a “particularly serious crime.” See Anaya-Ortiz
v. Holder, __ F.3d __ (9th Cir. 2010).
documents used to prove that the prior conviction under § 922(g) was for an

aggravated felony. He therefore has not exhausted the question, and we may not

decide it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); 8 U.S.C. §

1252(d)(1).

      PETITION DENIED
