Ortiz-Ibanez v. Holder , 458 F. App'x 590 ( 2011 )


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  •                                                                             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    NOT FOR PUBLICATION                             NOV 08 2011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.
    2                                   07-74249
    

Document Info

Docket Number: 06-73942, 07-74249

Citation Numbers: 458 F. App'x 590

Judges: Graber, O'Scannlain, Tashima

Filed Date: 11/8/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023