Erick Hernandez v. Eric Holder, Jr.

FILED

NOT FOR PUBLICATION APR 07 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICK FEDERICO HERNANDEZ, No. 14-71079

Petitioner, Agency No. A041-713-973

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted March 18, 2015 San Francisco, California

Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.

The government contends that Petitioner is removable because, in its view,

he was convicted of violating Alaska Stat. § 11.41.436(a)(2), and that statute

qualifies as “sexual abuse of a minor,” an aggravated felony under 8 U.S.C. §

1101(a)(43)(A). The government, however, has not met its burden of proving

clearly, unequivocally, and convincingly that Petitioner was convicted under

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. paragraph (a)(2). See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th

Cir. 2005). The amended indictment to…

MEMORANDUM *

The government contends that Petitioner is removable because, in its view, he was convicted of violating Alaska Stat. § 11.41.436 (a)(2), and that statute qualifies as “sexual abuse of a minor,” an aggravated felony under 8 U.S.C. § 1101 (a)(43)(A). The government, however, has not met its *711 burden of proving clearly, unequivocally, and convincingly that Petitioner was convicted under paragraph (a)(2). See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir.2005). The amended indictment to which Petitioner pled guilty alleged only that Petitioner violated Alaska Stat. § 11.41.436 . It neither specified “under which paragraph [Petitioner] was convicted,” Notash v. Gonzales, 427 F.3d 693, 697 (9th Cir.2005), nor “track[ed] the language” of paragraph (a)(2) “word-for-word,” United States v. Cabrera-Perez, 751 F.3d 1000, 1006 (9th Cir.2014). Indeed, the amended indictment omitted a critical element of paragraph (a)(2)— namely, that the encouraged sexual contact was “with another person.”

Moreover, the government has failed to establish that the amended indictment could not provide a sufficient factual basis for a conviction under (a)(4), a paragraph that,…

dissenting:

I dissent.

We all agree that a conviction under Alaska Statute section 11.41.436(a)(2) qualifies as “sexual abuse of a minor,” an aggravated felony under 8 U.S.C. § 1101 (a)(43)(A). That crime is an aggravated felony because the statute in question (1) involves sexual conduct, (2) protects minors, and (3) requires abuse. See Pelayo-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir.2009) (citing United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009)) (listing those elements of the federal generic offense). The only question for decision is whether Petitioner’s conviction fell under subsection (a)(2).

The government has established clearly, unequivocally, and convincingly, Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.2011), that Petitioner was convicted under subsection (a)(2) of the relevant Alaska criminal statute. Indeed, in my view, it is not even permissible to infer *712 that the conviction came under subsection (a)(4).

Only subsection (a)(2) contains the critical matters alleged and pleaded to here. The amended indictment specified that Petitioner was “16 years of age or older” when he committed the offense and that the victim was “a person…