FILED NOT FOR PUBLICATION FEB 8 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CARLOS ALBERTO CASTILLO, No. 20-73125 Petitioner, Agency No. A096-795-038 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 8, 2021** Pasadena, California Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges. Petitioner Carlos Alberto Castillo (Castillo), a native and citizen of El Salvador, petitions for review of a decision from the Board of Immigration Appeals (BIA) upholding the order from the Immigration Judge (IJ) finding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Castillo removable as an alien convicted of an aggravated felony, sexual abuse of a minor, and denying his motion to remand to apply for a waiver of inadmissibility. We have jurisdiction under 8 U.S.C. § 1252 and review questions of law de novo. See Villavicencio v. Sessions, 904 F.3d 658, 663 (9th Cir. 2018), as amended. We review the denial of a motion to remand for abuse of discretion, and it is the petitioner’s burden to establish prima facie eligibility for the relief sought. See Konstantinova v. I.N.S., 195 F.3d 528, 529 (9th Cir. 1999); see also Ng v. I.N.S., 804 F.2d 534, 538 (9th Cir. 1986).1 1. We have “developed two definitions specifying the elements of the federal generic offense of sexual abuse of a minor.” Quintero-Cisneros v. Sessions, 891 F.3d 1197, 1200 (9th Cir. 2018). The first definition, articulated in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc), “applies mainly to statutory rape offenses.” Quintero-Cisneros, 891 F.3d at 1200. The second definition, articulated in United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009), “applies to all other offenses.” Quintero-Cisneros, 891 F.3d at 1200. The government concedes that the BIA erred in finding that the statute 1 The BIA held that Castillo waived any arguments surrounding the IJ’s particularly serious crime determination, as well as the IJ’s denial of Castillo’s claim for protection under the Convention against Torture. He does not contest those holdings on appeal, and those arguments are waived. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th Cir. 1996). 2 under which Castillo was convicted, California Penal Code (CPC) § 288a(b)(2), was a categorical match for the Medina-Villa definition. However, the government urges us to apply the Estrada-Espinoza definition in the first instance to conclude that Castillo was actually convicted of an aggravated felony. But “[o]ur review is limited to those grounds explicitly relied upon by the [Board].” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1075 (9th Cir. 2020) (citation omitted). We must remand for the BIA to apply the correct definition in the first instance. See Singh v. Gonzales, 494 F.3d 1170, 1173 (9th Cir. 2007); see also …
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