- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 09-04-2012
- Case #: 07-74437
- Judge(s)/Court Below: Circuit Judge Clifton for the Court; Circuit Judge McKeown; Dissent by Circuit Judge Bybee
- Full Text Opinion
Fernando Sanchez-Avalos (“Sanchez”) is a Mexican citizen and a permanent resident of the United States. Sanchez was charged with six counts of child molestation and child rape, and one count of sexual battery in California. Sanchez entered into a plea agreement for no contest to the sexual battery count and all other counts were dismissed. After removal proceedings, Sanchez applied for a discretionary waiver of inadmissibility, which was denied by the Immigration Judge and the Board of Immigration Appeals (“BIA”). Sanchez appealed, arguing that his conviction for sexual battery under California law did not qualify as “sexual abuse of a minor” and, therefore, he did not commit an aggravated felony. The Ninth Circuit applied a two-part analysis to determine if Sanchez’s conviction qualified as an aggravated felony. First, the Court applied the categorical approach and then applied the “modified” categorical approach. The Court concluded that California sexual battery is broader than the federal crime of “sexual abuse of a minor,” because California sexual battery may be committed against a victim of any age. Further, the Court determined that the limitations from Taylor, Shepard, and Aguiles-Montes on the “modified” categorical approach did not allow consideration of the allegations of the victim’s date of birth, because it was not a fact upon which the conviction “necessarily rested.” The Court found that Sanchez acknowledged the description of the victim, including age, when he pled guilty. The age of the victim, which was not an element of the statute of conviction, rendered it irrelevant to Sanchez’s conviction. Thus, the Court held that none of the permitted evidence under the modified categorical approach showed that Sanchez’s victim was a minor, and therefore granted the petition and remanded to the BIA. GRANTED and REMANDED.