Ahmed v. Holder , 478 F. App'x 343 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 06 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KAMAL AHMED, No. 07-72885
Petitioner, Agency No. A045-051-570
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 February 6, 2012
Pasadena, California
Before: O’SCANNLAIN and BYBEE, Circuit Judges, and HAYES, District
Judge.**
Kamal Ahmed petitions for review of the order of the Board of Immigration
Appeals (“BIA”) affirming the conclusion of the Immigration Judge (“IJ”) that he
is removable because his Nevada conviction for open or gross lewdness counts as a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
conviction for sexual abuse of a minor, an aggravated felony. Because the BIA
used the “modified categorical approach” in reaching its conclusion, we deferred
submission of this case pending United States v. Aguila-Montes de Oca, 655 F.3d
915 (9th Cir. 2011) (en banc).
The IJ compared the crime of conviction in this case to the generic crime of
sexual abuse of a minor as articulated in In re Rodriguez-Rodriguez, 22 I. & N.
Dec. 991, 995–96 (B.I.A. 1999). See Shepard v. United States, 544 U.S. 13, 16
(2005); Taylor v. United States, 495 U.S. 575, 602 (1990). Subsequently, we held
in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1156–58 & n.7 (9th Cir. 2008)
(en banc), abrogated on other grounds by Aguila-Montes, 655 F.3d 915, that the
vague definition in Rodriguez-Rodriguez was contrary to congressional intent.
Given the clear language criticizing the BIA’s operative definition, we conclude
that its use in this case was reversible error.1
Furthermore, the BIA gave a lengthy analysis of its understanding of the
modified categorical approach. In doing so, it addressed much of our precedent at
the time, and it responded in part to concerns expressed in Judge Kozinski’s
1
We have since held in United States v. Medina-Villa that another, more
general definition of sexual abuse of a minor is also viable. 567 F.3d 507, 514–16
(9th Cir. 2009). We express no opinion here as to how the definition in
Rodriguez-Rodriguez compares to that in Medina-Villa or what kind of definition,
should it be adopted by BIA, would be upheld under either Estrada–Espinoza or
Medina-Villa.
concurrence in Li v. Ashcroft that reliance on the modified categorical approach in
a case in which the statute of conviction was missing an element of the generic
offense would be unfair to defendants, 389 F.3d 892, 899–901 (9th Cir. 2004)
(Kozinski, J., concurring). Because we addressed these issues in Aguila-Montes,
655 F.3d at 922–26 & n.6, 937–38, we believe remand is appropriate so that the
BIA can respond to these developments in the law and determine whether the
factfinder in this case was “actually required,” id. at 935–40, to find that the victim
was a minor.
PETITION GRANTED AND REMANDED.