Sanchez-Avalos v. Holder
2012 U.S. App. LEXIS 18570
9th Cir.2012Background
- Sanchez-Avalos, a Mexican citizen and lawful permanent resident since 1986, seeks INA § 212(h) waiver of inadmissibility based on an aggravated felony.
- California 1997 judgment: six counts of child molestation/child rape and one count of sexual battery (Cal. Penal Code § 243.4(a)); victim identified as Jane Doe with birth date 02/16/1984; Sanchez pled no contest to sexual battery.
- The information alleged the victim’s birth date, suggesting she was thirteen if correct; plea reflects admission to sexual battery.
- IJ denied § 212(h) relief on aggravated felony grounds and hardship grounds; the BIA affirmed the aggravated felony determination but did not revisit hardship.
- Court applies Taylor/Nijhawan/Shepard/Aguila-Montes two-step approach: first categorical, then modified categorical to determine if conviction fits the federal generic offense; relies on limited judicial records and whether facts were necessary to conviction.
- Holding: California sexual battery § 243.4(a) is not categorically the federal offense of sexual abuse of a minor; the facts do not establish the victim’s minor status; the petition is granted and remanded for further BIA proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Sanchez’s California sexual battery conviction qualify as an aggravated felony? | Sanchez argues the conviction did not require proof the victim was a minor. | Government contends sexual abuse of a minor under the INA is satisfied by the conviction. | No; conviction does not categorically qualify as an aggravated felony. |
| Is California § 243.4(a) categorically broader than the federal offense of sexual abuse of a minor? | California statute can be committed against any age, so it is broader. | Court should treat under Taylor/Nijhawan as a generic crime involving a minor if facts show minor victim. | Yes, broader; but modified analysis required to assess victim’s age. |
| Under the modified categorical approach, may the court consider the victim’s age from the indictment/plea? | Age evidence in indictment/plea should show the victim was a minor and thus satisfy the generic offense. | Only elements necessarily rested on by the conviction may be considered; age may not be necessary to conviction here. | Age was not a necessary element to conviction; cannot establish minor status under modified approach. |
| Should the case be remanded for BIA to consider discretionary relief in light of the modified analysis? | If not disqualified, Sanchez could still obtain relief based on hardship. | If agile to determine aggravated felony, relief denial stands; hardship issue remains for potential remand. | Remand to BIA for further proceedings, including IJ’s discretionary decision. |
Key Cases Cited
- Nijhawan v. Holder, 557 U.S. 29 (U.S. 2009) (circumstance-specific analysis acknowledged for certain categories)
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (two-step approach to determine generic offenses)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (limitations on using outside-the-text evidence for convictions)
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc; clarifies modified categorical approach and necessary elements)
- Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. 2009) (definition of generic ‘sexual abuse of a minor’ and age considerations)
- United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009) (context for applying modified categorical approach)
- People v. Christian, 101 Cal. 471 (Cal. 1894) (victim identity as a material element to notice of the offense)