United States v. Francisco Martinez, 786 F.3d 1227

Martinez, a lawful permanent resident, pleaded guilty in 2001 to Washington third‑degree child molestation (Wash. Rev. Code § 9A.44.089).
Immigration authorities charged him as removable because the conviction was an aggravated felony for "sexual abuse of a minor" and an Immigration Judge ordered his removal.
In 2011 Martinez was indicted under 8 U.S.C. § 1326 for being found in the U.S. after removal and moved to dismiss, arguing the removal order was invalid because his state conviction was not an aggravated felony.
The district court denied the motion, relying on Jimenez‑Juarez to treat the Washington statute as categorical match for "abuse." Martinez appealed.
The Ninth Circuit applied the categorical approach, concluded the Washington statute is indivisible but broader than the generic offense because it allows touching over clothing (no skin‑to‑skin requirement) and lacks the required "abuse" element.
Because the statute is missing elements of the generic definition, the court refused to apply the modified categorical approach and held Martinez was not removable on the aggravated‑felony ground; the denial of the motion to dismiss was reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Martinez's conviction for WA § 9A.44.089 categorically qualifies as an aggravated felony of "sexual abuse of a minor" for removal and § 1326 purposes	Martinez: WA statute is broader than the generic offense (permits touching over clothing; lacks "abuse" element), so removal was invalid and he can collaterally attack the order	Government: The conviction categorically matched the generic offense (district court relied on Jimenez‑Juarez to say statute meets "abuse" requirement)	Court: Reversed — WA § 9A.44.089 is indivisible but broader than the generic offense (missing "sexual act"/skin‑to‑skin and "abuse" elements); cannot use modified categorical approach; conviction is not categorically an aggravated felony

Jimenez‑Juarez v. Holder, 635 F.3d 1169 (9th Cir. 2011) (interpreting WA child‑abuse provision for immigration consequences)
Estrada‑Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (formulated elements for generic "sexual abuse of a minor" for statutory‑rape style offenses)
Medina‑Villa v. Mukasey, 567 F.3d 507 (9th Cir. 2009) (recognized residual "abuse" category for younger‑child protections)
Gomez v. Lynch, 757 F.3d 885 (9th Cir. 2014) (applied Estrada‑Espinoza/Medina‑Villa framework to reject categorical match where statute lacked "abuse" and age‑difference elements)
Descamps v. United States, 133 S. Ct. 2276 (2013) (held courts must use the categorical approach and decline modified categorical analysis when a statute is indivisible but broader than the generic offense)
United States v. Castro, 607 F.3d 566 (9th Cir. 2010) (held state lewd‑touching statutes allowing touching over clothing can be broader than federal "sexual abuse of a minor")
Aguilera‑Rios v. Holder, 769 F.3d 626 (9th Cir. 2014) (explained when collateral attacks challenge removability itself, the categorical analysis controls)
Alvarado‑Pineda v. United States, 774 F.3d 1198 (9th Cir. 2014) (standard of review and collateral‑attack framework for § 1326 motions)