REBILAS v. MUKASEY
The Ninth Circuit Court of Appeals today released an amended order in REBILAS v. MUKASEY, No. 05-76988, an administrative appeal. The panel consisted of Michael Daly Hawkins, Sidney R. Thomas, and Carlos T. Bea, Circuit Judges.
BEA, Circuit Judge: Petitioner Ryszard Kazimienz Rebilas (”Rebilas”), a native and citizen of Poland, petitions for review of the Board of Immigration Appeals’ (”BIA”) decision denying petitioner’s motion for reconsideration of the BIA’s earlier holding that petitioner’s conviction for two counts of “attempted public sexual indecency to a minor” under Arizona Revised Statutes (”ARS”) §§ 13-1001 and 13-1403(B) constituted sexual abuse of a minor and attempted sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and (U). As such, petitioner was found by the BIA to be removable as an aggravated felon under 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii). Petitioner was ordered removed and is in custody awaiting removal. We grant the petition for review, and hold that Arizona’s statutory definition of attempted public sexual indecency to a minor under ARS §§ 13-1001 and 13-1403(B) includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and (U). See Taylor v. United States, 495 U.S. 575, 600-02 (1990). Because Rebilas has raised a colorable legal question as to whether his conviction constitutes an aggravated felony, we have jurisdiction under the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), to resolve the issue. Parrilla v. Gonzales, 414 F.3d 1038, 1040-41 (9th Cir. 2005). We review the BIA’s denial of a motion to reconsider for abuse of discretion, see Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002), and we review the BIA’s determination of issues of law de novo, deferring to the BIA’s interpretation of an immigration statute where that interpretation is “based on a permissible construction of the statute.” Parrilla, 414 F.3d at 1041. This includes the definition of “sexual abuse of . . .
The motion to amend the opinion is granted in part. The opinion issued on November 2, 2007, Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. 2007), is amended as follows:
We delete the paragraph on page 1164 that currently reads: . . .