Victor B. Valencia v. Alberto R. Gonzales, Attorney General

ORDER AND OPINION

ORDER

The opinion filed on December 12, 2005, and reported at 431 F.3d 673 , is hereby withdrawn and replaced by the opinion filed concurrently with this order. Further petitions for rehearing and for rehearing en banc will be accepted, and the time for filing petitions for rehearing shall run anew commencing on the filed date of the substituted opinion. See Fed. R.App. P. 40(a)(1) and 35(c).

OPINION

Victor Valencia, a native and citizen of Peru, petitions for review from the Board of Immigration Appeals’ (“BIA”) order summarily affirming the Immigration Judge’s (“IJ”) order of removal. Valencia was convicted of felony unlawful sexual intercourse with a person under eighteen, who was more than three years younger than he, in violation of California Penal Code section 261.5(c). The IJ found Valencia removable for having committed an aggravated felony under 8 U.S.C. § 1227 (a)(2)(A)(iii), holding the crime constituted a crime of violence under 8 U.S.C. § 1101 (a)(43)(F), which defines a crime of violence pursuant to 18 U.S.C. § 16 .

Our jurisdiction is controlled by 8 U.S.C. § 1252 . We grant the petition for review and hold that a violation of California…