                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 08 2011

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




                              FOR THE NINTH CIRCUIT



JOSE ORTIZ-IBANEZ,                               Nos. 06-73942
                                                      07-74249
               Petitioner,
                                                 Agency No. A077-378-756
  v.

ERIC H. HOLDER, Jr., Attorney General,           MEMORANDUM *

               Respondent.



                       On Petitions for Review of Orders of the
                           Board of Immigration Appeals

                             Submitted November 8, 2011 **

Before:        O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.

       In these consolidated petitions for review, Jose Ortiz-Ibanez, a native and

citizen of Mexico, petitions pro se for review of the Board of Immigration

Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s

removal order and denying his motion to reopen. Our jurisdiction is governed by


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
8 U.S.C. § 1252. We review de novo questions of law. Pelayo-Garcia v. Holder,

589 F.3d 1010, 1012 (9th Cir. 2009). We grant the petition for review and remand

in No. 06-73942. We dismiss the petition for review in No. 07-74249.

         Ortiz-Ibanez’s conviction for third-degree rape under Oregon Revised

Statute § 163.355 is not categorically an aggravated felony with respect to either of

the federal generic definitions we have since adopted for “sexual abuse of a minor”

in 8 U.S.C. § 1101(a)(43)(A), because the statute of conviction lacks the elements

of abuse and a four-year age difference. See Rivera-Cuartas v. Holder, 605 F.3d

699, 701-02 (9th Cir. 2010). We therefore remand for the BIA to apply the

modified categorical approach in the first instance. See United States v. Aguila-

Montes De Oca, 655 F.3d 915, 928 (9th Cir. 2011) (per curiam) (proceeding to the

modified categorical approach is permissible where the statute of conviction is

missing a requisite element); Fregozo v. Holder, 576 F.3d 1030, 1039 (9th Cir.

2009).

         We need not address the petition for review in No. 07-74249 in light of our

disposition in No. 06-73942.

         In No. 06-73942: PETITION FOR REVIEW GRANTED;

REMANDED.

         In No. 07-74249: PETITION FOR REVIEW DISMISSED.

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