Francisco Prado-Lopez v. Eric H. Holder Jr.

MEMORANDUM **

We grant petitioner Francisco Prado-Lopez’s request for review of an order of the Board of Immigration Appeals (BIA) reversing the Immigration Judge’s (IJ) grant of a waiver of inadmissibility and ordering Prado-Lopez removed from the United States based on the IFs finding that he is deportable as an aggravated felon. We affirm the IFs and BIA’s conclusions that Prado-Lopez’s crime in violation of California Penal Code § 288.5(a) constitutes sexual abuse of a minor. Because it is unclear from its opinion whether the BIA sufficiently considered Prado-Lopez’s rehabilitation as a factor justifying a waiver of inadmissibility, we remand to the BIA for consideration of that factor.

1. Although Prado-Lopez did not exhaust the issue of whether the offense he committed in violation of California Penal Code § 288.5(a) constitutes sexual abuse of a minor, he is excused from exhausting his administrative remedies on this issue because it is “based on events that occurred] after briefing to the BIA ha[d] been completed.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir.2004). Here, that event was our decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1154 (9th Cir.2008) (en…

dissenting in part.

I concur in today’s decision that Prado-Lopez is deportable as a result of his conviction under California Penal Code § 288.5(a).

Nevertheless, I respectfully dissent from the remand of his case to the Board of Immigration Appeals (“BIA”). Prado-Lopez’s petition for review comes down to a challenge to the manner in which the BIA applied controlling case law. While “misapplication of relevant case law .... would have constituted a viable argument that the BIA had abused its discretion,” it does not come within the “colorable due process claims over which we may [now] exercise jurisdiction.” Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). The BIA’s failure to mention particular evidence does not change the outcome because we presume the BIA is truthful when it recites— as it did here — that it reviewed the record. Cf. Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir.2000). As such, I would dismiss Prado-Lopez’s petition for review of the BIA’s denial of discretionary relief for lack of jurisdiction.

FILED

NOT FOR PUBLICATION JAN 05 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

FRANCISCO PRADO-LOPEZ, No. 08-72997

Petitioner, Agency No. A013-624-036

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 December 9, 2011 San Francisco, California

Before: O'SCANNLAIN, COWEN,** and BERZON, Circuit Judges.

We grant petitioner Francisco Prado-Lopez's request for review of an order

of the Board of Immigration Appeals (BIA) reversing the Immigration Judge's (IJ)

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation. grant of a waiver of inadmissibility and ordering Prado-Lopez removed from the

United States based on the IJ's finding that he is deportable as an…