Sanchez–Avalos v. Holder

• Decision Date: 04 September 2012
• Docket Number: No. 07–74437.,07–74437.
• Parties: Fernando SANCHEZ–AVALOS, Petitioner v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

693 F.3d 1011

2012 Daily Journal D.A.R. 12,478

Fernando SANCHEZ–AVALOS, Petitioner

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07–74437.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 21, 2012.

Filed Sept. 4, 2012.

Michael K. Mehr (argued), Rachael Keast, Law Office of Michael K. Mehr, Santa Cruz, CA, for the petitioner.

Tony West, Michelle E. Latour, Jennifer J. Keeney (argued), U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A026–340–635.

Before: M. MARGARET McKEOWN, RICHARD R. CLIFTON, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge CLIFTON; Dissent by Judge BYBEE.

OPINION

CLIFTON, Circuit Judge:

Fernando Sanchez–Avalos (“Sanchez”) petitions for review of the BIA's decision that he is not eligible for waiver of inadmissability because he was convicted of an aggravated felony. See Immigration and Nationality Act (“INA”) § 212(h), codified at 8 U.S.C. § 1182(h). Sanchez argues that his conviction for sexual battery under California Penal Code § 243.4(a) did not qualify as sexual abuse of a minor. We apply the categorical and modified categorical approaches first described by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and recently clarified by this court in United States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc). We conclude that the crime of sexual battery under California law is categorically broader than the federal generic crime of “sexual abuse of a minor” because the California crime may be committed against a victim of any age, while the federal generic offense requires proof that the victim was a minor. We also conclude that none of the evidence we are permitted to consider under the modified categorical approach establishes that Sanchez's victim was a minor. We therefore grant the petition and remand the matter to the BIA.

I. Background

Sanchez is a Mexican citizen. He entered the U.S. in 1977 and has been a lawful permanent resident since 1986. In 1997, California charged Sanchez with six counts of child molestation and child rape and one count of sexual battery of arousal under California Penal Code § 243.4(a). The latter is a crime that may be committed against a minor or an adult.

In addition to alleging the required elements of sexual battery, the information filed against Sanchez identified the victim as “Jane Doe, date of birth 02/16/1984.” If the date of birth was correct, Sanchez's victim was thirteen at the time of the crime. Sanchez entered into a plea agreement with the state under which Sanchez pled no contest to the sexual battery count and the other counts were dismissed.

In 2004, Sanchez traveled to Mexico. Upon his return to the United States, the Department of Homeland Security paroled petitioner into this country for deferred inspection. It later revoked that parole and began removal proceedings. The Department alleged that Sanchez was convicted of acts which constituted the essential elements of a crime involving moral turpitude and was therefore inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The Immigration Judge sustained the charge of inadmissibility.

Sanchez applied for a discretionary waiver of inadmissability under INA § 212(h). After an evidentiary hearing, the Immigration Judge denied Sanchez's waiver request. He stated two alternate grounds for his decision. First, he concluded Sanchez was not eligible for § 212(h) relief because Sanchez's sexual battery conviction qualified as “sexual abuse of a minor,” an aggravated felony. See8 U.S.C. §§ 1101(a)(43)(A), 1182(h). Second, he determined that even if Sanchez were eligible, Sanchez failed to show “exceptional or extremely unusual hardship” to a qualifying relative under the heightened standard applicable to aliens who have committed a violent crime. See8 C.F.R. § 1212.7.

Sanchez appealed the Immigration Judge's denial of a § 212(h) waiver. The Board affirmed the conclusion that under the modified categorical approach, Sanchez was convicted of an aggravated felony and was therefore ineligible for § 212 waiver. It did not review the alternative decision to deny discretionary relief on the ground that Petitioner did not show hardship. Sanchez filed a petition for review.

II. Discussion

We review de novo whether a petitioner's prior conviction qualified as conviction for an aggravated felony under the INA. Fernandez–Ruiz v. Gonzales, 466 F.3d 1121, 1126 n. 7 (9th Cir.2006) (en banc). We conclude that Sanchez's conviction did not. We must therefore grant Sanchez's petition.

INA § 212(h) provides the Attorney General discretion to waive the inadmissibility of certain aliens if the alien establishes that inadmissibility would cause hardship to a family member who is a United States citizen or lawful resident. 8 U.S.C. § 1182(h)(1)(B). Certain categories of aliens (including Sanchez) are not eligible for this waiver if “the alien has been convicted of an aggravated felony.” 8 U.S.C. § 1182(h). “[S]exual abuse of a minor” is an aggravated felony. 8 U.S.C. § 1101(a)(43)(A).

We employ a two-part analysis to determine whether a prior conviction qualifies as an “aggravated felony.” Aguila–Montes, 655 F.3d at 918. The first step is the application of the categorical approach. Id. at 920. We compare the statute of conviction to the list of aggravated felonies in 8 U.S.C. § 1101(a)(43). Id. If the statute of conviction required proof of all the elements of one of the federal generic offenses on that list, then the conviction was for an aggravated felony. Id. If not, we apply the modified categorical approach. Id. The modified categorical approach allows us to look beyond the statute of convictionto determine whether the facts proven at trial or admitted by the defendant as part of his guilty plea establish that the defendant was convicted of all the elements of the relevant federal generic offense. Id. at 921;see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

There are two limitations on our application of the modified categorical approach. First, we may only rely on facts contained in a limited universe of judicial documents, such as “ ‘the indictment or information and jury instructions' ... or, if a guilty plea is at issue ... the plea agreement, plea colloquy or ‘some comparable judicial record’ of the factual basis for the plea.” Nijhawan v. Holder, 557 U.S. 29, 35, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143 and Shepard, 544 U.S. at 26, 125 S.Ct. 1254);see also Aguila–Montes, 655 F.3d at 921.¹

Second, and of greater relevance to this case, we may only take into account facts on which the defendant's conviction “necessarily rested.” Aguila–Montes, 655 F.3d at 937. The Supreme Court articulated this limitation in Taylor, in which it held that courts may only look beyond the relevant statutory text in “the narrow range of cases in which the indictment or information and the jury instructions actually required the jury to find all of the elements of generic burglary.” 495 U.S. at 602, 110 S.Ct. 2143 (emphasis added). The Court referred to the limitation again in Shepard, in which it said that the relevant inquiry was “whether a plea of guilty to burglary defined by a non-generic statute necessarily admitted elements of the generic offense.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254 (emphasis added). In Aguila–Montes, we used a hypothetical example to further explain what it means for a factual allegation to be “necessary” to conviction:

It is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant.

....

Let us return to our example in which the generic aggravated assault offense requires (1) harmful contact and (2) use of a gun, whereas the statute of conviction requires only harmful contact. Under our reading of the modified categorical approach, if the Shepard documents establish that the defendant satisfied the harmful contact with a gun, then the factfinder was “actually required” to find the defendant used a gun, and the conviction “necessarily rested” on this fact. In such a situation, the defendant has every incentive to demonstrate that he did not use a gun.... [I]f the jury convicts the defendant, then we may be confident that the jury determined that he used a gun, because such a determination was necessary given the government's theory of guilt.

655 F.3d at 937–38 (emphasis added; citation omitted).²

There is a categorical mismatch between sexual battery under California Penal Code § 243.4(a) and the federal generic offense of sexual abuse of a minor. A state crime

may qualify as the federal generic offense of “sexual abuse of a minor” if: (1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse. A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes “physical or psychological harm in light of the age of the victim in question.”

Pelayo–Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir.2009) (internal citations omitted; emphasis added); see also United States v. Baron–Medina, 187 F.3d 1144, 1147 (9th Cir.1999); United States v. Medina–Villa, 567 F.3d 507, 515 (9th Cir.2009).³California Penal Code § 243.4(a) criminalizes “touch[ing] an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, ... if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.” (emphasis added). The federal generic offense protects only minors, whereas the California statute protects all persons regardless of age....