Sanchez-Avalos

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 molesta- tion 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. SANCHEZ-AVALOS v. HOLDER 10511 In addition to alleging the required elements of sexual bat- tery, the information filed against Sanchez identified the vic- tim 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 bat- tery 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…

Opinion by Judge CLIFTON; Dissent by Judge BYBEE.

OPINION

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…

dissenting in part:

In 1997, Fernando Sanchez-Avalos pled no contest to “willfully and unlawfully touching] an intimate part of another person, to wit, JANE DOE, date of birth 02/16/1984,” to gratify his sexual desires. He received a three-year suspended sentence, subject to terms of probation, including not being in the presence of children under sixteen years of age. Reading this record, the Immigration Judge (“U”) reasonably concluded that Sanchez had committed a crime against a thirteen-year-old that qualified as “sexual abuse of a minor,” 8 U.S.C. § 1101 (a)(43)(A), which rendered him inadmissible under § 1182(a)(2)(A)(i)(I) and ineligible for a waiver under § 1182(h). The BIA affirmed.

The majority overturns the BIA’s judgment because the majority can’t be sure “whether the judicial records show that Sanchez was convicted of sexually battering a minor.” Maj. Op. at 1016. I disagree with the majority that we may not consider the age of the victim when that fact was recited in the indictment, was the only information that actually identified the underage Jane Doe victim, and was admitted by Sanchez when he pled no contest. There is no reason to engage in such formalism.…