Alejandro MORENO-ALVIZO, aka Alejandro Moreno, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent, 358 F. App'x 988

MEMORANDUM 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. Mukasey, 546 F.3d 1147, 1152 (9th Cir.2008) (en banc). See Pelayo-Garcia v. Holder, 589 F.3d 1010 (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, 589 F.3d at 1015. 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 1015.

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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.