FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IVAN VALDEZ AMADOR, No. 13-71406 Petitioner, Agency No. v. A092-323-856 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 8, 2021 Pasadena, California Filed March 9, 2022 Before: Susan P. Graber and John B. Owens, Circuit Judges, and Jack Zouhary, * District Judge. Opinion by Judge Zouhary; Partial Concurrence and Partial Dissent by Judge Graber * The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. 2 VALDEZ AMADOR V. GARLAND SUMMARY ** Immigration Denying in part and granting in part Ivan Valdez Amador’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel concluded that Valdez’s conviction for domestic violence, in violation of California Penal Code § 273.5(a), rendered him removable, but remanded for the BIA to consider whether his rape conviction for felony rape of an unconscious person, in violation of California Penal Code § 261(a)(4), is an aggravated felony barring cancellation of removal. As to removability, the panel observed that this court had already squarely rejected Valdez’s argument that a Section 273.5(a) conviction is not categorically a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i). The panel also rejected Valdez’s argument that the government failed to prove the existence of his Section 261(a)(4) conviction, explaining that the criminal information and minute order were sufficient to establish that conviction. As to cancellation of removal, the panel explained that rape under Section 261(a)(4) occurs when the victim “is at the time unconscious of the nature of the act, and this is known to the accused,” and the phrase “unconscious of the nature of the act” means the victim was incapable of resisting because the victim fell within one of the statute’s subsections. Subsection D involves a victim who was not “aware, knowing, perceiving, or cognizant of the essential ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VALDEZ AMADOR V. GARLAND 3 characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.” In its 2013 decision in this case, the BIA noted that—at the time—it was undisputed that Section 261(a)(4) was not a categorical aggravated felony. Applying the modified categorical approach, the BIA then concluded that Valdez did not plead guilty under subsection (D), the only provision that would not have been a rape aggravated felony. However, the panel concluded that, in light of Mathis v. United States, 136 S. Ct. 2243 (2016), Section 261(a)(4) is now indivisible. The panel explained that the subsections of Section 261(a)(4) are “means” that render the statute indivisible because the jury need not specify under which circumstances a victim is rendered “unconscious of the nature of the act.” The parties agreed on this …
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