                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 21 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ENRIQUE RODRIGUEZ-MACIAS,                        No. 09-71054

               Petitioner,                       Agency No. A035-911-860

   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 May 13, 2010
                              San Francisco, California

Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.

        Enrique Rodriguez-Macias petitions for review of a decision by the Board of

Immigration Appeals (BIA) affirming the oral decision of an immigration judge

(IJ) finding that Rodriguez-Macias was removable based on his conviction for

child annoyance, in violation of California Penal Code § 647.6(a). We grant the

petition.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Applying the modified categorical approach, we must determine whether

Rodriguez-Macias’s conviction under California Penal Code § 647.6(a) constitutes

a conviction for child abuse.1 This court in Fregozo v. Holder, 576 F.3d 1030,

1035 (9th Cir. 2009), looked to the BIA’s definition of child abuse as set forth in

Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008). In clarifying the

BIA’s definition, this court noted that “although ‘child abuse’ is not limited to the

infliction of physical harm, the perpetrator’s actions, either intentional or

criminally negligent, must actually inflict some form of injury on a child.”

Fregozo, 576 F.3d at 1037.

      Here, the relevant document shows that Rodriguez-Macias admitted that:

“On or about April 5, 2004, in Orange County, [he] willfully and unlawfully

engaged in conduct directed at an eleven year old girl which would disturb a

normal person when [he] made sexual comments towards her and this was

motivated by an unnatural sexual interest.” This document is insufficient to

determine whether Rodriguez-Macias’ section 647.6(a) conviction rises to the level

of child abuse. First, California Penal Code § 647.6(a) does not require that a child

actually suffer some injury. See People v. Lopez, 965 P.2d 713, 717 (Cal. 1998);

see, e.g., Nicanor-Romero v. Mukasey, 523 F.3d 992, 1000 (9th Cir. 2008) rev’d on

      1
        Both parties agree that the modified categorical approach should be
applied. Petitioner did not address the applicability of the categorical approach to
the BIA or in his opening brief, so we decline to address it now.
other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009)

(citing cases noting the minimum conduct required for a conviction under the

statute). Second, Rodriguez-Macias’s statement does not show that a child was

actually injured. Thus, there is no factual basis for concluding that

Rodriguez-Macias’s section 647.6(a) conviction is a crime of child abuse and,

therefore, he is not removable under 8 U.S.C. § 1227(a)(2)(E)(i).

      PETITION GRANTED.
