Ahmed

MEMORANDUM

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 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 , 125 S.Ct. 1254 , 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 602 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (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 Aguilas-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…