Toua Xiong v. Mukasey

MEMORANDUM *

Toua Xiong petitions for review of the Board of Immigration Appeals’ (BIA’s) affirmance of an Immigration Judge’s (IJ’s) decision finding Xiong removable for having committed an aggravated felony. We hold that Xiong’s conviction under California Penal Code §§ 261.5(c) and 664 was not a conviction for the aggravated felony of sexual abuse of a minor, and we grant the petition for review. 1

When the BIA conducts an independent review of the IJ’s findings, we review the BIA’s decision, and not that of the IJ. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir.2005). The BIA’s determination of purely legal questions is reviewed de novo. See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). Whether a criminal offense constitutes an aggravated felony is a legal question that we review de novo. Martinez-Perez v. Ashcroft, 417 F.3d 1022, 1025 (9th Cir. 2005).

Pursuant to 8 U.S.C. § 1227 (a)(2)(A)(iii), “any alien who is convicted of an aggravated felony at any time after admission” is removable. 8 U.S.C. § 1101 (a)(43)(A) defines aggravated felony to include “sexual abuse of a minor.” 8 U.S.C. § 1101 (a)(43)(U) defines aggravated felony to include…