Robert Taylor v. United States Attorney General

FILED
NOT FOR PUBLICATION JAN 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT TAYLOR, No. 11-35751
Plaintiff - Appellant, D.C. No. 2:10-cv-02026-MJP
v.
MEMORANDUM*
UNITED STATES ATTORNEY
GENERAL; UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY, CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted December 7, 2012
San Francisco, California
Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.
Appellant Robert Taylor, a native and citizen of Canada, appeals the district
court’s dismissal with prejudice of his petition seeking review of the denial by the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
United States Citizenship and Immigration Services of his Form N-400 application
for naturalization.1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and review
the merits of a district court’s naturalization decision under our “usual standard of
review.” United States v. Hovsepian, 359 F.3d 1144, 1165 (9th Cir. 2004). Thus,
findings of fact, including findings pertaining to good moral character, are
reviewed for clear error, Diamond v. City of Taft, 215 F.3d 1052, 1055 (9th Cir.
2000); Yuen Jung v. Barber, 184 F.2d 491, 497 (9th Cir. 1950), and conclusions of
law are reviewed de novo, Diamond, 215 F.3d at 1055. We vacate and remand for
further proceedings.
An applicant seeking naturalization must satisfy all eligibility requirements,
which include demonstrating good moral character. 8 U.S.C. § 1427(e); see
Santamaria-Ames v. INS, 104 F.3d 1127, 1129 (9th Cir. 1996) (discussing good
moral character). A person who has been convicted of an aggravated felony,
however, lacks good moral character. 8 U.S.C. § 1101(f)(8); 8 C.F.R.
§ 316.10(b)(1)(ii). The term “aggravated felony” includes “sexual abuse of a
1
Taylor served on active duty in the United States Armed Forces during the
Vietnam War era and was honorably discharged in 1975. An individual who
“served honorably as a member of the Selected Reserve of the Ready Reserve or in
active-duty status during a designated period of hostilities,” which includes the
Vietnam War era, may apply for naturalization by completing a Form N-400
application. See http://www.uscis.gov/files/form/n-400instr.pdf (last updated Mar.
22, 2012).
2
minor,” 8 U.S.C. § 1101(a)(43)(A), and “applies to such an offense in violation of
the law of a foreign country for which the term of imprisonment was completed
within the previous 15 years,” id. § 1101(a)(43).
In 1994, Canadian authorities charged Taylor with one count of sexual
interference involving a “person under the age of fourteen years” in violation of
Canadian Criminal Code (“CCC”) § 151 and one count of “sexual assault of
another person” in violation of CCC § 271. Taylor pled not guilty to both counts.
Following a bench trial, a Canadian court found Taylor guilty of sexual assault.
The Canadian court conditionally stayed the sexual interference charge, of which
Taylor was not convicted. At sentencing, the Canadian court noted that Taylor’s
victim was twelve years old at the time of the offense.
We apply the categorical and modified approaches set forth in Taylor v.
United States, 495 U.S. 575 (1990), to determine whether Taylor’s Canadian
sexual assault conviction qualifies as an aggravated felony that precludes him from
demonstrating good moral character and eligibility for naturalization.2 CCC § 271
did not define “sexual assault.” Nevertheless, the Supreme Court of Canada has
determined that “[s]exual assault is an assault . . . committed in circumstances of a
2
The parties do not dispute that the categorical and modified approaches set
forth in Taylor apply to Taylor’s Canadian sexual assault conviction.
3
sexual nature, such that the sexual integrity of the victim is violated.” Chase v. R.,
[1987] 2 S.C.R. 293 (Can.). A person commits an “assault” under CCC § 265
when, “without the consent of another person, he applies force intentionally to that
other person, directly or indirectly.” Thus, the elements of sexual assault under
CCC § 271, based upon CCC § 265 and Chase v. R, are: (1) direct or indirect
intentional force; (2) of a sexual nature; (3) to another person; and (4) without
consent. Notably, the victim’s age is not required to prove sexual assault. Thus,
under the categorical approach, we conclude that CCC § 271 criminalizes conduct
that does not satisfy the generic federal definition of “sexual abuse of a minor.”
See Quintro-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007).
Under the modified categorical approach, we may review the terms of a
charging document, Cabantac v. Holder, 693 F.3d 825, 827 (9th Cir. 2012); United
States v. Snyder, 643 F.3d 694, 698 (9th Cir. 2011), but cannot consider the
allegation in other counts to ascertain whether one count qualifies as an aggravated
felony, Aguilar-Turcios v. Holder, 691 F.3d 1025, 1037 (9th Cir. 2012).
Additionally, we may not consider a statement concerning the victim’s age made
by the Canadian court during sentencing. See United States v. Rodriguez-Guzman,
506 F.3d 738, 747 n.9 (9th Cir. 2007) (determining that a sentencing transcript, for
purposes of the modified categorical approach, “is not judicially noticeable as a
4
‘record[] of the convicting court’” (quoting Shepard v. United States, 544 U.S. 13,
23 (2005))).
The government contends that Taylor’s conviction qualifies as an aggravated
felony under the modified categorical approach. This contention, however, is
foreclosed by our recent decision in Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th
Cir. 2012). There, the alien, like Taylor, was charged with multiple counts of child
molestation and child rape, but was convicted only of a single count of sexual
battery for which the juvenile status of the victim was not an element of the
offense. See id. at 1013-16. Unlike in the present case, the charging document in
Sanchez-Avalos specified the juvenile age of the victim in the count of conviction.
We held that the conviction did not constitute the aggravated felony of “sexual
abuse of a minor” because the age of the victim was not a fact that the prosecution
had to prove to establish guilt; therefore, the victim’s age was not a fact upon
which the conviction “necessarily rested.” Id. at 1016.
As we recognized in Sanchez-Avalos, “[i]t may seem unfortunate that the
law requires us to blind ourselves to persuasive evidence” that Taylor’s victim was
a minor. Id. at 1017. “This type of evidentiary limitation is, however, a
characteristic feature of the categorical approach and its modified categorical
variant, which we are required to apply.” Id.5
Applying the modified categorical approach, we hold that Taylor’s Canadian
conviction for sexual assault of another person in violation of CCC § 271 does not
qualify as an aggravated felony. The district court, therefore, committed reversible
error by relying upon the allegation of sexual interference involving a “person
under the age of fourteen years” set forth in the CCC § 151 count, of which Taylor
was not convicted, to conclude that Taylor’s Canadian sexual assault conviction
qualifies as the aggravated felony of “sexual abuse of a minor” that renders him
ineligible for naturalization. Accordingly, we vacate the judgment and remand to
the district court for further proceedings in accordance with 8 U.S.C. § 1421(c).3
Finally, we reject Appellees’ contention that naturalization applicants must
demonstrate good moral character by clear and convincing evidence.4 Pursuant to
8 C.F.R. § 316.2(b), an applicant must establish “by a preponderance of the
3
We express no opinion regarding the merits of Taylor’s naturalization
application, which the district court reviews de novo, 8 U.S.C. § 1421(c), and
whether Taylor demonstrates good moral character under 8 C.F.R. § 316.10(a)(2).
4
Appellees’ reliance upon Berenyi v. District Director, INS, 385 U.S. 630(1967), for the proposition that an applicant must prove good moral character by
clear and convincing evidence is misplaced. Berenyi addressed the burden of proof
applicable to the government when it seeks to divest citizenship from an
individual. Id. at 636. The Berenyi Court acknowledged that an alien must
demonstrate eligibility for citizenship but did not impose upon aliens a clear and
convincing evidence standard in order to meet their burden. See id. at 636-37.
6
evidence that he . . . meets all of the requirements for naturalization.”5 8 C.F.R.
§ 316.2(b) (emphasis added). Thus, Taylor bears the burden of demonstrating
good moral character, one such requirement for naturalization, 8 U.S.C. § 1427(e),
by a preponderance of the evidence. See Hovsepian, 359 F.3d at 1168.
VACATED AND REMANDED.
Each party shall bear its own costs on appeal.
5
8 C.F.R. § 316.2(b) was amended in 1993 to “incorporate the specific
standard of proof upon an applicant for naturalization as established by judicial
precedent . . . .” 58 Fed. Reg. 49,905, 49,909 (Sept. 24, 1993).
7