Thursday, February 9th, 2017

CA9 on Modified Categorical Approach: Sanchez-Avalos v. Holder

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"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