
    Alejandro MORENO-ALVIZO, aka Alejandro Moreno, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
    No. 05-73906.
    United States Court of Appeals, Ninth Circuit.
    Submitted Dec. 14, 2009.
    
    Filed Dec. 16, 2009.
    John Martin Pope, Pope & Associates, PC, Phoenix, AZ, Christopher John Stender, Esquire, Stender & Lappin, San Diego, CA, for Petitioner.
    Ronald E. Lefevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Anthony W. Nor-wood, Senior Litigation Counsel, U.S. Department of Justice, Washington, DC, for Respondent.
    Before: NOONAN, KLEINFELD and IKUTA, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Because section 261.5(d) of the California Penal Code lacks the element of knowledge required by 18 U.S.C. § 2243, it does not meet the definition of the generic federal crime of “sexual abuse of a minor” under Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir.2008) (en banc). See Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir.2009). Likewise, because section 261.5(d) does not expressly include abuse of a minor as an element of the crime and is not limited to conduct targeting younger children, it fails to meet the alternative test for “sexual abuse of a minor” articulated by United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir.2009). See Pelayo-Garcia, 589 F.3d at 1015. Accordingly, the BIA erred in determining that Moreno-Alvizo’s prior conviction is categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Id. at 1015.

The government has not asked us to undertake a modified categorical analysis, nor do the conviction documents in the record establish that petitioner was convicted of a crime involving sexual conduct with a younger child. Accordingly, the IJ and BIA erred in concluding that petitioner was deportable due to his prior conviction

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