Santa-Cruz

MEMORANDUM **

Carlos Gugusto Santa-Cruz, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252 . Parrilla v. Gonzales, 414 F.3d 1038, 1040 (9th Cir.2005). Reviewing de novo, Altamirano v. Gonzales, 421 F.3d 586, 591 (9th Cir.2005), we grant the petition for review.

The BIA’s determination that Santa-Cruz’s 2000 conviction pursuant to Washington Revised Code § 9.68A.090 for communicating with a minor for an immoral purpose is categorically “sexual abuse of a minor” preceded our decision to the contrary in Parrilla. See 414 F.3d at 1040 (“[W]e hold that section 9.68A.090 did not categorically proscribe ‘sexual abuse of a minor’.... ”). Unlike Parrilla , in which the BIA also applied a modified categorical analysis, the BIA did not do so in this case, and the government does not contend that the record sustains Santa-Cruz’s removability under this approach.

The government’s alternative contention, which was not presented to the agency, is that Santa-Cruz’s conviction constituted attempted sexual abuse of a minor. It is…