Ivan Valdez Amador v. Merrick Garland
28 F.4th 72
| 9th Cir. | 2022Background
- Ivan Valdez Amador, a Mexican national admitted as an LPR in 1989, was convicted in California of PC § 273.5(a) (inflicting corporal injury on a spouse/cohabitant) in 2005 and of PC § 261(a)(4) (rape of an unconscious person) in 2010; sentenced for the latter and ordered to register as a sex offender.
- DHS charged Valdez with removability for a crime of domestic violence (PC § 273.5) and as an aggravated felon based on the PC § 261(a)(4) rape conviction, rendering him ineligible for cancellation of removal if the state conviction matched the federal "rape" aggravated-felony definition.
- The IJ and the BIA went back and forth over several remands about (1) whether PC § 273.5(a) categorically is a crime of domestic violence and (2) whether PC § 261(a)(4) was a categorical aggravated felony or divisible (so the modified categorical approach could identify the non‑matching subsection).
- The BIA repeatedly found Valdez removable based on PC § 273.5(a) (and the record and counsel concessions showed removability), and on the record applied the modified categorical approach to conclude Valdez’s plea did not fall under the fraud-in‑inducement subsection of § 261(a)(4).
- After Mathis, the Ninth Circuit concluded § 261(a)(4) is indivisible (means, not separately elementized alternatives), so the modified categorical approach cannot be used; the court remanded to the BIA to decide whether the federal generic definition of "rape" includes intercourse obtained through fraud (fraud-in‑the‑inducement).
Issues
| Issue | Valdez's Argument | Garland's Argument | Held |
|---|---|---|---|
| Whether PC § 273.5(a) is a removable "crime of domestic violence" | §273.5 covers violence against cohabitants who may lack a protected domestic relationship; not categorically domestic-violence | Controlling Ninth Circuit precedent (Carrillo) treats §273.5 as categorically a crime of domestic violence; conviction records were sufficient | Removability upheld: §273.5(a) is a crime of domestic violence; conviction documents were admissible and Valdez conceded removability |
| Whether PC § 261(a)(4) is a categorical aggravated felony ("rape") because it criminalizes fraud-in‑inducement | §261(a)(4) covers some non‑generic conduct (fraud‑induced consent), so it's not a categorical match to federal "rape" | Government previously relied on the modified categorical approach to show Valdez was convicted of a matching theory; later conceded divisibility problem post-Mathis | Court held §261(a)(4) is indivisible under Mathis; cannot use the modified categorical approach and remanded to the BIA to determine whether the generic federal definition of "rape" covers fraud‑induced consent |
| Whether the modified categorical approach could be used based on plea/hearing transcripts to prove Valdez’s conviction was not under the fraud subsection | Transcripts are insufficient or improperly relied upon to establish the specific statutory alternative | Government argued transcripts and plea colloquy showed Valdez did not plead under the fraud subsection | Mathis makes the statute indivisible so the modified categorical approach was inapplicable; the BIA erred to rely on it |
| Whether the BIA should reconsider the categorical question in light of intervening state decisions and recent precedent | Valdez urged that California law developments affect the categorical inquiry | Government requested BIA reconsideration; court should defer to agency expertise on the federal generic meaning of "rape" | Court remanded to the BIA to carefully consider—under current law—whether the federal generic definition of rape includes consensual intercourse obtained through fraud (fraud‑in‑the‑inducement) |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from means; indivisibility bars use of modified categorical approach)
- Descamps v. United States, 570 U.S. 254 (2013) (limits when courts may consult Shepard-approved records under the modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (limits which conviction-record documents may be consulted in categorical analysis)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach; use "realistic probability" standard)
- Pereida v. Wilkinson, 141 S. Ct. 754 (2021) (burden on alien to show conviction falls under non‑disqualifying statutory provision when statute is divisible)
- Castro‑Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000) (analysis of California rape provisions involving unconscious victims)
- Carrillo v. Holder, 781 F.3d 1155 (9th Cir. 2015) (holds §273.5 is categorically a crime of domestic violence)
- Sinotes‑Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006) (admissibility of certified/stamped state conviction copies)
- People v. Robinson, 370 P.3d 1043 (Cal. 2016) (California Supreme Court: fraud in the inducement can vitiate consent under state law)