Amador v. Garland
| Decision Date | 09 March 2022 |
| Docket Number | 13-71406 |
| Parties | Ivan Valdez Amador, Petitioner, v. Merrick B. Garland, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted October 8, 2021 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A092-323-856
Mario Acosta Jr. (argued), Law Office of Mario Acosta Jr., Santa Fe Springs, California, for Petitioner.
Rebecca Hoffberg Phillips (argued), Trial Attorney; John S Hogan, Assistant Director; Office of Immigration Litigation Civil Division, United States Department of Justice Washington, D.C.; for Respondent.
Before: Susan P. Graber and John B. Owens, Circuit Judges, and Jack Zouhary, [*] District Judge.
Denying in part and granting in part Ivan Valdez Amador's petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel concluded that Valdez's conviction for domestic violence, in violation of California Penal Code § 273.5(a), rendered him removable, but remanded for the BIA to consider whether his rape conviction for felony rape of an unconscious person, in violation of California Penal Code § 261(a)(4), is an aggravated felony barring cancellation of removal.
As to removability, the panel observed that this court had already squarely rejected Valdez's argument that a Section 273.5(a) conviction is not categorically a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i). The panel also rejected Valdez's argument that the government failed to prove the existence of his Section 261(a)(4) conviction, explaining that the criminal information and minute order were sufficient to establish that conviction.
As to cancellation of removal, the panel explained that rape under Section 261(a)(4) occurs when the victim "is at the time unconscious of the nature of the act, and this is known to the accused," and the phrase "unconscious of the nature of the act" means the victim was incapable of resisting because the victim fell within one of the statute's subsections. Subsection D involves a victim who was not "aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose."
In its 2013 decision in this case, the BIA noted that-at the time-it was undisputed that Section 261(a)(4) was not a categorical aggravated felony. Applying the modified categorical approach, the BIA then concluded that Valdez did not plead guilty under subsection (D), the only provision that would not have been a rape aggravated felony. However, the panel concluded that, in light of Mathis v. United States, 136 S.Ct. 2243 (2016), Section 261(a)(4) is now indivisible. The panel explained that the subsections of Section 261(a)(4) are "means" that render the statute indivisible because the jury need not specify under which circumstances a victim is rendered "unconscious of the nature of the act." The parties agreed on this point, but disagreed as to whether the statute is a categorical aggravated felony or, alternatively, an "overbroad" statute.
Applying the categorical approach, the panel considered Valdez's argument that subsection (D) falls outside the generic federal definition of rape. The panel noted that the BIA had asked the parties to brief the issue and concluded that the generic federal definition of rape did not encompass sexual intercourse involving deceit. However, the panel concluded that there were now two potential problems with the BIA's analysis: 1) because Section 261(a)(4) was clearly divisible at that time, the government did not advance the argument that the statute was categorically an aggravated felony, and the BIA had no reason to examine the issue thoroughly; 2) California law had changed significantly in the past decade.
The panel observed that the court owes deference to the BIA on the question whether the generic definition of rape includes consensual intercourse obtained through fraud. However, because this issue was not argued before the BIA, and in light of new developments in case law, the panel remanded for the BIA to have an opportunity to carefully consider the question.
Concurring in part and dissenting in part, Judge Graber agreed with the majority opinion as to removability, but disagreed as to cancellation of removal. Because the BIA already held-in a reasoned, persuasive decision-that Section 261(a)(4) is not a categorical match for the federal definition of an aggravated felony, Judge Graber would uphold the BIA's decision in that regard; hold that Petitioner is statutorily eligible for cancellation; grant the petition; and remand for the BIA's discretionary decision whether to grant cancellation. Judge Graber wrote that the majority opinion's decision to remand for the BIA to reconsider its categorical analysis was relief sought by no party, found no support in the facts or the law, and needlessly prolonged already protracted litigation.
Judge Graber observed that this case provided yet another example of the substantive and procedural mess caused in immigration cases by the categorical approach and the modified categorical approach. Judge Graber wrote that, even if only a legislative act could dissolve the categorical approach in toto, the Supreme Court could alleviate part of the problem by permitting a more practical inquiry under the modified categorical approach. Thus, Judge Graber respectfully encouraged the Court to reconsider its decision in Mathis in an appropriate case.
Petitioner Ivan Valdez Amador ("Valdez"), a native and citizen of Mexico, was ordered removed after an Immigration Judge ("IJ") determined that he was removable due to his conviction for domestic violence and ineligible for cancellation of removal due to his conviction for rape of an unconscious person. After remanding the case to the IJ three times, the Board of Immigration Appeals ("BIA") determined in 2013 that Valdez's criminal convictions rendered him removable and ineligible for cancellation of removal. Valdez then petitioned for review of the BIA decision. This Court has jurisdiction under 8 U.S.C. § 1252(a).
Valdez was admitted as a legal permanent resident in 1989 at age nine. In 2005, he was convicted in state court of "inflicting corporal injury on a spouse or cohabitant," in violation of California Penal Code § 273.5(a), and of driving under the influence of alcohol. He was sentenced to 150 days incarceration. Later that year, Valdez was convicted of violating a protective order and sentenced to 20 days incarceration.
In 2010, Valdez was convicted in the same state court for "felony rape of an unconscious person" in violation of California Penal Code § 261(a)(4). He was sentenced to one year in prison, five years of probation, and ordered to register as a sex offender. Weeks later, the federal government served Valdez with a notice to appear, alleging he was removable due to his status as an aggravated felon. In 2011, Valdez appeared with counsel before an IJ. He admitted that he had been convicted of rape of an unconscious person, but argued that the crime did not constitute an aggravated felony. The government then lodged two more removal charges: one for being convicted of a crime involving domestic violence (Section 273.5(a)), and another for being convicted of two "crimes involving moral turpitude" ("CIMT"). The IJ concluded that Valdez's actual conduct in committing the crime of "rape of an unconscious person" fit the common law definition of rape, rendering Valdez an "aggravated felon" who is both removable and ineligible for cancellation of removal.
Valdez appealed to the BIA, arguing: (1) Section 261(a)(4) is "divisible" because two subsections of the statute involve the use of fraud to obtain sex; (2) the IJ improperly relied on the criminal complaint to determine which subsection of the statute he was convicted under; (3) the electronic conviction records were not properly authenticated; and (4) Section 273.5(a) is not categorically a crime of domestic violence or a CIMT because the statute criminalizes violence against a person who is not in a protected relationship.
The BIA found that, in light of Banuelos-Ayon v. Holder, 611 F.3d 1080 (9th Cir. 2010), the conviction documents underlying the Section 273.5(a) conviction were sufficient to demonstrate removability. But the BIA remanded to the IJ for reconsideration of cancellation of removal. In particular, the IJ considered whether a violation of Section 261(a)(4) was categorically a "rape" offense under 8 U.S.C. § 1101(a)(43)(A). The IJ ruled that the Section 261(a)(4) conviction categorically constituted an aggravated felony.
Back to the BIA once again. This time, Valdez pointed to intervening case law holding that a violation of Section 273.5(a) was not a categorical CIMT, and he argued that it was similarly not a crime of domestic violence. The BIA rejected that argument and again found Valdez removable due to the Section 273.5(a) conviction. However, the BIA held that Section 261(a)(4) encompassed "some conduct that is commonly understood as rape" and "some conduct that is not," namely "sexual intercourse with a victim who consented due to fraud." So, in 2012, the BIA again remanded to the IJ to determine whether Valdez could demonstrate eligibility for cancellation of removal.
On remand, the IJ disagreed. The IJ certified the record back to the BIA for "reconsideration," arguing the decision was inconsistent with "binding precedential authority," specifically, Castro-Baez v. Reno 217 F.3d 1057 (9th Cir. 2000). Castro...
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