Ortiz-Ibanez

MEMORANDUM

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 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…