Flores v. Holder, ___ F.3d ___, ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (BIA
erred by consulting the record of conviction to determine that Flores's underlying conduct"the touching of his hand to the genital area of th[e] victim"satisfied the generic definition of sexual abuse of a minor under 18 U.S.C. 3509(a). . . . The agency was instead required to consider whether the minimum conduct necessary to violate N.Y. Penal Law 130.65(3) was encompassed within 18 U.S.C. 3509(a)'s definition of sexual abuse.); see Ming Lam Sui v. INS, 250 F.3d 105, 117"18 (2d Cir. 2001) (noting that reviewing court cannot go behind the offense as it was charged to reach [its] own determination as to whether the underlying facts amount to one of the enumerated crimes (internal quotation marks omitted)).

The court noted:

This error was not harmless because N.Y. Penal Law 130.65 criminalizes sexual contact, and we have observed that it is by no means clear that admitting to sexual contact with a minor under New York law would be enough to establish sexual abuse of a minor under the INA. James, 522 F.3d at 258 (emphasis in original). Accordingly, we vacate the agency's aggravated felony determination and remand for proper application of the modified categorical approach. See Gonzales v. Thomas, 547 U.S. 183, 186"87, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam) (observing that agency should be given opportunity, in first instance, to make legal determinations entrusted to it by Congress).

(Id. at ___.)