                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 16 2009

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



                             FOR THE NINTH CIRCUIT


ALEJANDRO MORENO-ALVIZO, aka                     No. 05-73906
Alejandro Moreno,
                                                 Agency No. A090-982-194
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

              Respondent.


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

                            Submitted December 14, 2009**
                               San Francisco, California

Before: NOONAN, KLEINFELD and IKUTA, Circuit Judges.


       Because section 261.5(d) of the California Penal Code lacks the element of

knowledge required by 18 U.S.C. § 2243, it does not meet the definition of the

generic federal crime of “sexual abuse of a minor” under Estrada-Espinoza v.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Mukaskey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). See Pelayo-Garcia v.

Holder, ___ F.3d ___ (9th Cir. 2009). Likewise, because section 261.5(d) does not

expressly include abuse of a minor as an element of the crime and is not limited to

conduct targeting younger children, it fails to meet the alternative test for “sexual

abuse of a minor” articulated by United States v. Medina-Villa, 567 F.3d 507, 513

(9th Cir. 2009). See Pelayo-Garcia, ___ F.3d at ___. Accordingly, the BIA erred

in determining that Moreno-Alvizo’s prior conviction is categorically an

aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Id. at ___.

      The government has not asked us to undertake a modified categorical

analysis, nor do the conviction documents in the record establish that petitioner

was convicted of a crime involving sexual conduct with a younger child.

Accordingly, the IJ and BIA erred in concluding that petitioner was deportable due

to his prior conviction

      PETITION FOR REVIEW GRANTED.
