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Fernando v. Eric H. Holder Jr.

September 4, 2012

FERNANDO SANCHEZ-AVALOS, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A026-340-635

The opinion of the court was delivered by: Clifton, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

March 21, 2012-San Francisco, California

Before: M. Margaret McKeown, Richard R. Clifton, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Clifton; Dissent by Judge Bybee

10507

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 (1990), and recently clarified by this court in United States v. Aguila-Montes de Oca, 655 F.3d 915 (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 Sanchez's victim was a minor. We therefore grant the petition and remand the matter to the BIA.

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 molestation 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.

In addition to alleging the required elements of sexual battery, the information filed against Sanchez identified the victim 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 battery 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 turpitude and was therefore inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I). The Immigration Judge sustained the charge of inadmissibility.

Sanchez applied for a discretionary waiver of inadmissability under INA § 212(h). After an evidentiary hearing, the Immigration Judge denied Sanchez's waiver request. He stated two alternate grounds for his decision. First, he concluded Sanchez was not eligible for § 212(h) relief because Sanchez's sexual battery conviction qualified as "sexual abuse of a minor," an aggravated felony. See 8 U.S.C. §§ 1101(a)(43)(A), 1182(h). Second, he determined that even if Sanchez were eligible, Sanchez failed to show "exceptional or extremely unusual hardship" to a qualifying relative under the heightened standard applicable to aliens who have committed a violent crime. See 8 C.F.R. § 1212.7.

Sanchez appealed the Immigration Judge's denial of a § 212(h) waiver. The Board affirmed the conclusion that under the modified categorical approach, Sanchez was convicted of an aggravated felony and was therefore ineligible for § 212 waiver. It did not review the alternative decision to deny discretionary relief on ...


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