NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LAKHWINDER SINGH SANGHERA, No. 14-73507 AKA Lakhwinder Sanghera, 15-71240 Petitioner, Agency No. A046-866-497 v. JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 28, 2017 Pasadena, California Before: WARDLAW and BYBEE, Circuit Judges, and ILLSTON,** District Judge. Lakhwinder Singh Sanghera, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (BIA or Board) order of removal pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), which deemed Sanghera removable for * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan Illston, United States District Judge for the Northern District of California, sitting by designation. committing a “crime of child abuse.” Sanghera also petitions for review of the Board’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the petition without reaching the Board’s denial of Sanghera’s motion to reopen. 1. The IJ abused his discretion by applying the Board’s 2008 definition of “crime of child abuse” retroactively to Sanghera’s 2001 conviction for violation of California Penal Code section 273a(a).1 See Garfias-Rodriguez v. Holder, 702 F.3d 504, 518 (9th Cir. 2012) (en banc) (quoting Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982)) (explaining the five-factor retroactivity test). Two years prior to his 2001 conviction, the BIA intimated, in a published decision in Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999),2 that its definition of the “crime of child abuse” in § 1227(a)(2)(E)(i) would conform to the “common 1 Sanghera did not waive his retroactivity arguments by failing to raise them to the Board or the IJ. “[E]xhaustion of administrative remedies with respect to the retroactivity issue is not required, except to invite the agency to correct its own error, if ‘record development is unnecessary and the [agency] has no special expertise to do the retroactivity analysis.’” Garfias-Rodriguez v. Holder, 702 F.3d 504, 514 (9th Cir. 2012) (en banc) (quoting Chang v. United States, 327 F.3d 911, 925 (9th Cir. 2003)). Because no further record development is necessary, the parties have briefed the issue before this court, and deference is not required, we consider the issue here in the first instance. 2 While the dissent correctly notes that Rodriguez focused on the separate crime of “child sexual abuse,” we see no reason to ignore Rodriguez’s discussion of the “crime of child abuse,” particularly when Rodriguez offered the Board’s sole discussion of that separate crime at the time of Sanghera’s no-contest plea to California Penal Code section 273a(a). 2 usage” of that term as defined in the 1990 edition of Black’s Law Dictionary. Id. at 996. The dictionary defined “child abuse” as “(a)ny form of cruelty to a child’s physical, moral or mental ...
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