Rodriguez-Macias

MEMORANDUM **

The facts and procedural history of this case are familiar to the parties, and we do not repeat them here. Rodriguez-Macias makes two challenges to his removal and one due process claim. We address each in turn.

First, Rodriguez-Macias argues that the Board of Immigration Appeals (“BIA”) erred in finding that he committed two crimes involving moral turpitude not arising out of a single scheme of criminal conduct, and was therefore removable under 8 U.S.C. § 1227 (a)(2)(A)(ii). We agree with this argument. Rodriguez-Macias pleaded guilty and was convicted of indecent exposure in violation of CaLPenal Code § 314(1) in November 1997. He then pleaded guilty and was convicted of child annoyance in violation of CaLPenal Code § 647.6(a) in May 2004. We recently ruled that a violation of § 647.6(a) is not categorically a crime involving moral turpitude. See Nicanor-Romero v. Mukasey, 523 F.3d 992, 1007 (9th Cir.2008).

Since Rodriguez-Macias’ crime was not necessarily morally turpitudinous, we turn to a modified categorical approach to determine whether Rodriguez-Macias’ actual offense involved moral turpitude. Id. Under the modified categorical approach, we look beyond…