Moreno-Alvizo

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…