                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               JAN 13 2010

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

UNITED STATES OF AMERICA,                        No. 09-50151

              Plaintiff - Appellee,              D.C. No. 3:08-CR-00719-L-1

  v.
                                                 MEMORANDUM *
RIGOBERTO HERNANDEZ-RIVERA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                      Argued and Submitted December 8, 2009
                               Pasadena, California

Before:       REINHARDT, TROTT, and WARDLAW, Circuit Judges.

       Rigoberto Hernandez-Rivera, a native and citizen of Mexico, appeals the

district court’s denial of his motion to dismiss the indictment, which was based on

an allegedly invalid order of deportation; and the district court’s determination that

a conviction for attempted sodomy under California Penal Code §§ 664 and



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
286(c)(2) is a categorical crime of violence under U.S.S.G. § 2L1.2. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part,

vacate in part, and remand for further proceedings.

      The district court properly denied the motion to dismiss the indictment

because Hernandez-Rivera failed to demonstrate he had a plausible basis for

seeking pre-conclusion voluntary departure, adjustment of status, or relief under

the Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). See

United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (requiring

prejudice to sustain a collateral attack on an underlying deportation order); United

States v. Pallares-Galan, 359 F.3d 1088, 1103 (9th Cir. 2004) (“To prove

prejudice, [a petitioner] . . . must show . . . he had a ‘plausible’ basis for seeking

relief from deportation.”); 8 C.F.R. § 212.7(d) (stating that INA § 212(h) relief will

not be granted in cases involving violent or dangerous crimes unless the alien

clearly demonstrates exceptional and extremely unusual hardship).

      However, with respect to Hernandez-Rivera’s sentence, we conclude that

attempted sodomy under California Penal Code §§ 664 and 286(c)(2) is not a

categorical “crime of violence” under U.S.S.G. § 2L1.2 because the state statutes

do not require the use of physical force beyond that inherent to penetration, nor do

they require the use, attempted use, or threatened use of violent physical force. See


                                            2
U.S.S.G. § 2L1.2, cmt. 1(B)(iii)); United States v. Bolanos-Hernandez, 492 F.3d

1140, 1145–46 (9th Cir. 2007) (holding that forcible sex offenses require more

physical force than that inherent to penetration, but that under the catch-all

provision, the force used “‘must actually be violent in nature’”). Accordingly, we

vacate Hernandez-Rivera’s sentence and remand to the district court on an open

record to allow it to apply the modified categorical approach in the first instance.

See United States v. Grisel, 488 F.3d 844, 852 (9th Cir. 2007) (en banc) (finding

remand for resentencing on an open record appropriate when the district court has

erred in applying a categorical inquiry).

      AFFIRMED in part; VACATED in part; and REMANDED for further

proceedings.




                                            3
