Child Molester May Get to Stay in United States
September 5, 2012 Tim Hull
(CN) – One day after the U.S. Supreme Court agreed to review the practice of reconciling federal law with its more general California counterpart, the 9th Circuit used the same approach to benefit a man facing deportation after molesting a 13-year-old.
The federal appeals panel in San Francisco found a "categorical mismatch between sexual battery under California Penal Code and the federal generic offense of sexual abuse of a minor," triggering the application of the modified categorical approach.
Fernando Sanchez-Avalos, a lawful permanent resident of the United States since 1986, pleaded no contest in 1997 to sexual battery in exchange for the dismissal of multiple counts of child molestation and child rape.
The Mexican national received a three-year suspended sentence, and was later deemed subject to removal by an immigration judge and the Board of Immigration Appeals.
A divided three-judge panel reversed on Tuesday and ordered the board to take another look.
"The modified categorical approach allows us to look beyond the statute of conviction to determine whether the facts proven at trial or admitted by the defendant as part of his guilty plea establish that the defendant was convicted of all the elements of the relevant federal generic offense," Judge Richard Clifton wrote for the panel.
"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," he added.
Writing in dissent, Judge Jay Bybee accused the majority of "formalism."
"I disagree with the majority that we may not consider the age of the victim when that fact was recited in the indictment, was the only information that actually identified the underage Jane Doe victim, and was admitted by Sanchez when he pled no contest," Bybee wrote. "There is no reason to engage in such formalism. Unfortunately, this case is another in a series of cases that threatens to gut the modified categorical approach by requiring us to ignore facts 'plain on the record before us.'"
Bybee wrote a similar objection to one of those cases, Aguilar-Turcios v. Holder, which the 9th Circuit revived in August using the same modified-categorical justifications.
"The majority's formalism strikes me as a prophylactic, wholly unnecessary to protect Sanchez's rights under our immigration laws," Bybee wrote. "I have elsewhere questioned whether our application of the modified categorical approach has been too strict in the immigration context. But even if we must treat immigration cases with all the rigor of criminal cases, we are simply ignoring facts staring us in the face."
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