
    Carlos GUILLEN-VALDIVIA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
    No. 04-74130.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Dec. 7, 2007.
    Filed March 31, 2009.
    
      Frank P. Sprouls, Esquire, Law Office of Ricci and Sprouls, San Francisco, CA, for Petitioner.
    Mary Jane Candaux, Assistant Director, James Eugene Grimes, Senior Litigation Counsel, Joanne E. Johnson, Esquire, DOJ-U.S. Department of Justice, Washington, DC, Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
    Before: D.W. NELSON and BEA, Circuit Judges, and OBERDORFER, District Judge.
    
      
       The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting by designation.
    
   MEMORANDUM

Though the charging document alleged Petitioner Carlos Guillen-Valdivia’s victim was a minor, his plea of nolo contendere to a single misdemeanor count of sexual battery in violation of California Penal Code Section 243.4(d) was not, under either the categorical or modified categorical approaches, a conviction for an aggravated felony because nothing in the record proves Guíllen-Valdivia “necessarily admitted” the charges as alleged in the charging document. See United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir.2007) (en banc). Accordingly the petition for review is GRANTED and we REMAND Guillen-Valdivia’s case to the Board of Immigration Appeals for further proceedings.

PETITION GRANTED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     