Argued and Submitted, Pasadena, California, June 4, 2015.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A073-850-909.
The panel granted Oscar Chavez-Solis's petition for review of the Board of Immigration Appeals' decision holding that his conviction for possessing child pornography under California Penal Code § 311.11(a) is an aggravated felony under 8 U.S.C. § 1101(a)(43)(I).
The panel held that CPC § 311.11(a) is not an aggravated felony because it is categorically broader than any offense described in the federal child pornography statute. The panel also held that the modified categorical approach could not be applied because the definition of " sexual conduct" in CPC § 311.4(d) is indivisible.
Douglas Jalaie (argued), Los Angeles, California, for Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney General; Jennifer Lightbody, Senior Litigation Counsel; Ashley Y. Martin (argued), Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before: Raymond C. Fisher, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.
BYBEE, Circuit Judge:
We are asked to decide whether a conviction for possessing child pornography in violation of California Penal Code § 311.11(a) is an aggravated felony under 8 U.S.C. § 1101(a)(43)(I). We conclude that § 311.11(a) sweeps in a broader range of pornographic depictions than the federal child pornography statute and thus is not an aggravated felony. Accordingly, we grant the petition for review.
Oscar Chavez-Solis is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident in 1999. In 2011, he pleaded nolo contendere to possessing or controlling child pornography in violation of California Penal Code § 311.11(a). He was sentenced to 150 days' imprisonment.
Two months later, the Department of Homeland Security (DHS) took Chavez-Solis into custody and placed him in removal proceedings. The Notice to Appear charged Chavez-Solis with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien " convicted of an aggravated felony as defined in [8 U.S.C. § 1101(a)(43)(I)]." Section 1101(a)(43)(I) defines the term " aggravated felony" to include " an offense described in [18 U.S.C. § § ] 2251, 2251A, or 2252 . . . (relating to child pornography)."
In proceedings before the Immigration Judge, DHS took the position that Penal Code § 311.11(a) is an aggravated felony under 8 U.S.C. § 1101(a)(43)(I) because it is described in both 18 U.S.C. § 2252(a)(2) (receipt of child pornography) and § 2252(a)(4)(B) (possession of child pornography). Chavez-Solis disagreed. Pointing to the California Court of Appeal's decision in Tecklenburg v. Appellate Division of the Superior Court, 169 Cal.App.4th 1402, 87 Cal.Rptr.3d 460, 472-73 (Ct.App. 2009), he argued that, unlike federal courts applying the federal statute, California courts have held that a defendant who accesses child pornography on the Internet can be convicted under § 311.11(a) for possessing images found in his computer's temporary cache even if he is unaware of the cache.
In an oral decision, the Immigration Judge determined that Chavez-Solis's § 311.11(a) conviction constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(I). The Immigration Judge compared the statutes and reasoned that " [t]he essential elements of California Penal Code Section 311.11[(a)], as well as those under 2252(a)(4)(B) are essentially the same." Acknowledging that Tecklenburg construed § 311.11(a) broadly, the Immigration Judge responded, " That is exactly the point. . . . [B]oth [state and federal] statues [sic] are so broad they are virtually identical . . . ." The Immigration Judge concluded that Chavez-Solis was ineligible for adjustment of status, cancellation of removal, and voluntary departure, and ordered him removed to Mexico.
Chavez-Solis appealed to the Board of Immigration Appeals. Reviewing de novo, the Board concluded that " [t]he offense defined by section 311.11(a) . . . is 'described in' 18 U.S.C. § 2252 because the essential elements of the California offense are the same as those described by 18 U.S.C. § § 2252(a)(2) and (a)(4)(B)." As for the Tecklenburg decision, the Board reasoned that the defendant in Tecklenburg did " knowingly possess or control images of child pornography," and thus could have been convicted under 18 U.S.C. § 2252. The Board thus agreed with the Immigration Judge that a violation of Penal Code § 311.11(a) is an offense described in 18 U.S.C. § 2252 and accordingly dismissed the appeal.
Chavez-Solis filed a timely petition for review with this court. We have jurisdiction to review questions of law decided by the Board of Immigration Appeals, 8 U.S.C. § 1252(a)(1), (a)(2)(D), and " [w]hether an offense is an aggravated felony for removal purposes is a question of law" that we review de novo, Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011) (brackets omitted) (quoting Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir. 2006)).
We determine whether a state law child pornography conviction is an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(I) by applying the categorical approach outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, we " make a categorical comparison of the elements of the statute of conviction and the generic definition of an aggravated felony, as found in § 1101(a)(43)." Aguilar-Turcios v. Holder, 740 F.3d 1294, 1300 (9th Cir. 2014). Here, that means we must ...