Salvador Espinoza-Gonzalez v. Eric Holder, Jr.

MEMORANDUM

Petitioner Salvador Espinoza-Gonzalez (“Espinoza”) was a Lawful Permanent Resident of the United States when he pled no contest to sexual abuse under Arizona Criminal Code § 13-1404. During removal proceedings, the Immigration Judge (“IJ”) applied the modified categorical approach and determined that Espinoza’s prior conviction constituted a “rape” for purposes of 8 U.S.C. § 1101 (43)(A), an aggravated felony. The IJ relied on statements made during Espinoza’s plea colloquy to determine that Espinoza’s conviction constituted a rape. On this basis, the IJ found Espinoza removable and unable to claim cancellation of removal. The BIA affirmed without opinion.

Sexual abuse, the crime to which Espinoza pled, is defined under Arizona law as:

Arizona defines “sexual contact” as:

Ariz.Rev.Stat. § 13-1401(2).

The parties agree that the generic crime of rape requires some type of intercourse or penetration. The IJ also adopted this definition. This is consistent with Ninth Circuit case law. See Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir.2000); see also United States v. Yanez-Saucedo, 295 F.3d 991, 995 (9th Cir.2002). The parties also agree that because Espinoza’s…