                                                                              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                           NOT FOR PUBLICATION                                 JAN 22 2013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
