Oscar Chavez Solis v. Loretta E. Lynch
803 F.3d 1004
9th Cir.2015Background
- Chavez-Solis, a lawful permanent resident, pleaded nolo contendere in California to possessing child pornography under Cal. Penal Code § 311.11(a) and served 150 days.
- DHS initiated removal proceedings, charging him as removable for conviction of an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(I), which incorporates offenses described in 18 U.S.C. §§ 2251, 2251A, 2252.
- The IJ and BIA concluded § 311.11(a) is an aggravated felony because its elements match federal child-pornography offenses (18 U.S.C. § 2252 variants).
- Chavez-Solis petitioned for review in the Ninth Circuit, which reviews de novo whether a state offense is an aggravated felony using the categorical approach from Taylor v. United States.
- The Ninth Circuit compared § 311.11(a) (incorporating § 311.4(d)'s definition of "sexual conduct") with 18 U.S.C. § 2252(a)(4)(B) and 2256(2)(A), focusing on whether California's statute is categorically broader.
- The court found § 311.11(a) broader because California includes "any lewd or lascivious sexual act" (Cal. Penal Code § 288) and other conduct not necessarily covered by the federal definition, and therefore is not an aggravated felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under Cal. Penal Code § 311.11(a) is an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(I) by categorical comparison to 18 U.S.C. § 2252 | Chavez-Solis: § 311.11(a) is broader than the federal statute and thus not categorically an aggravated felony | DHS/BIA: The statutes are essentially the same; California convictions fall within federal § 2252(a)(2)/(a)(4)(B) | Held for Chavez-Solis: § 311.11(a) is categorically broader and not an aggravated felony |
| Whether the statutory language alone proves a "realistic probability" that California will apply § 311.11(a) to nongeneric conduct outside the federal definition | Chavez-Solis: Text of § 311.4(d) explicitly includes § 288 "any lewd or lascivious sexual act," showing realistic probability without extrinsic cases | Government: There is no realistic probability; petitioner must show actual prosecutions for nongeneric conduct | Held: Textual breadth suffices under Grisel/Vidal; realistic probability shown; no need for additional prosecutions |
| Whether Wallace and other California cases show § 311.4(d) has been applied to conduct outside the federal definition | Chavez-Solis: Wallace and related decisions show California prosecutions for "lewd or lascivious acts" not limited to lascivious exhibition | Government: Wallace involved a different statute (§ 311.4(c)), and possession (§ 311.11(a)) is treated differently | Held: Wallace applies because the common definitional provision § 311.4(d) is shared; it demonstrates as-applied breadth |
| Whether the modified categorical approach is available (i.e., is § 311.4(d) divisible) | Government: § 311.4(d) is disjunctive and divisible; remand to BIA for modified categorical analysis | Chavez-Solis: § 311.4(d) is a definitional list, not multiple alternative elements; indivisible | Held: § 311.4(d) is indivisible; modified categorical approach not available |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (sets out categorical approach for comparing statute elements)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (requires a "realistic probability" that a state statute will be applied to nongeneric conduct)
- United States v. Grisel, 488 F.3d 844 (en banc) (textual breadth can establish realistic probability)
- United States v. Vidal, 504 F.3d 1072 (en banc) (relying on statutory language to show overbreadth)
- Rendon v. Holder, 764 F.3d 1077 (divisibility standard for modified categorical approach)
- Medina-Lara v. Holder, 771 F.3d 1106 (look to common definitional provisions across statutes to show realistic probability)
- People v. Wallace, 14 Cal. Rptr. 2d 67 (Cal. Ct. App. decision showing § 311.4(d) applied to "lewd or lascivious acts" not requiring exhibition)
- People v. Martinez, 903 P.2d 1037 (Cal. 1995) (section 288 covers "any touching" of a child that is lewd or lascivious)