                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 12-30185
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           2:11-cr-06071-
                                                       FVS-1
 FRANCISCO SALGADO MARTINEZ,
 AKA Crisoforo Salgado Martinez,
              Defendant-Appellant.                    OPINION


       Appeal from the United States District Court
          for the Eastern District of Washington
    Fred L. Van Sickle, Senior District Judge, Presiding

         Argued and Submitted March 8, 2013
   Submission Withdrawn and Deferred March 14, 2013
               Resubmitted May 8, 2015
                  Seattle, Washington

                       Filed May 28, 2015

    Before: William A. Fletcher, Johnnie B. Rawlinson,
            and David M. Ebel,* Circuit Judges.

                  Opinion by Judge Rawlinson


 *
   The Honorable David M. Ebel, Senior Circuit Judge for the U.S. Court
of Appeals for the Tenth Circuit, sitting by designation.
2                 UNITED STATES V. MARTINEZ

                           SUMMARY**


                           Criminal Law

    The panel reversed the district court’s denial of the
defendant’s motion to dismiss an indictment alleging that he
was found in the United States subsequent to an order of
removal in violation of 8 U.S.C. § 1326, and remanded.

    The panel held that the defendant was not removable
based on an aggravated felony because a conviction for third-
degree child molestation under Wash. Rev. Code § 9A44.089
(2001) does not categorically meet the generic definition of
sexual abuse of a minor due to missing elements in the
statute.

     The panel was unable to resort to the modified categorical
approach because the Washington statute is indivisible and is
missing elements of the generic definition of sexual abuse of
a minor: “abuse” based on “physical or psychological harm
in light of the age of the victim in question,” and a “sexual
act” involving skin-to-skin contact.


                             COUNSEL

Rebecca L. Pennell (argued), Federal Defenders of Eastern
Washington & Idaho, Yakima, Washington, for Defendant-
Appellant.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. MARTINEZ                     3

Michael C. Ormsby, United States Attorney, and Alison L.
Gregoire (argued), Assistant United States Attorney, Yakima,
Washington, for Plaintiff-Appellee.


                         OPINION

RAWLINSON, Circuit Judge:

    Appellant Francisco Salgado Martinez (Martinez)
challenges the district court’s denial of his motion to dismiss
an indictment alleging that he was found in the United States
subsequent to an order of removal in violation of 8 U.S.C.
§ 1326. Martinez asserts that the underlying removal order
was invalid because his conviction for third-degree child
molestation in violation of Wash. Rev. Code § 9A.44.089
(2001) was not an aggravated felony. Because recent
developments in the law support Martinez’s claim, we reverse
the district court’s denial of Martinez’s motion to dismiss the
indictment.

I. BACKGROUND

    In 2001, Martinez pled guilty to third-degree child
molestation in violation of Wash. Rev. Code § 9A.44.089.
Martinez, a lawful permanent resident, was subsequently
served with a notice to appear because his conviction was an
aggravated felony “relating to . . . the sexual abuse of a
minor.” 8 U.S.C. § 1101(a)(43)(A). The Immigration Judge
ordered Martinez’s removal from the United States based on
his admission to the charges in the notice to appear.

   In 2011, Martinez was indicted for being found in the
United States subsequent to his removal in violation of
4              UNITED STATES V. MARTINEZ

8 U.S.C. § 1326. Martinez filed a motion to dismiss the
indictment premised on a challenge to the validity of the
underlying removal order. Martinez asserted that his removal
violated his due process rights because his state conviction
was not an aggravated felony. According to Martinez,
Washington’s third-degree child molestation offense was
broader than the generic offense of sexual abuse of a minor
because it criminalized sexual contact involving the touching
of a minor over clothing.

    The district court denied Martinez’s motion to dismiss the
indictment. The district court concluded that Martinez’s
removal comported with due process requirements because
Martinez’s third-degree child molestation conviction
categorically qualified as sexual abuse of a minor. Relying
on our decision in Jimenez-Juarez v. Holder, 635 F.3d 1169
(9th Cir. 2011), the district court opined that Martinez’s
conviction was a categorical match to the generic offense of
sexual abuse of a minor because, under Jimenez-Juarez, the
act of sexual touching of a 14- or 15-year old victim by one
who is at least 48 months older constitutes, at a minimum,
“maltreatment of a child and impairs the child’s mental well-
being,” id. at 1171, and was therefore categorically “abuse.”
Id.

    Martinez filed a timely notice of appeal.

II. STANDARD OF REVIEW

    “We review de novo the denial of a motion to dismiss an
indictment under 8 U.S.C. § 1326 when the motion is based
on alleged due process defects in an underlying deportation
proceeding.” United States v. Alvarado-Pineda, 774 F.3d
1198, 1201 (9th Cir. 2014) (citation omitted).
               UNITED STATES V. MARTINEZ                    5

III.   DISCUSSION

    Martinez contends that his prior removal was invalid
because his third-degree child molestation conviction did not
categorically qualify as an aggravated felony.

    “To convict an alien criminal defendant of illegal reentry
under 8 U.S.C. § 1326, the government must prove that the
alien left the United States under order of exclusion,
deportation, or removal, and then illegally reentered.” Id.
(citation omitted). “A noncitizen charged with illegal reentry
therefore has a Fifth Amendment right to collaterally attack
his removal order because the removal order serves as a
predicate element of his conviction. . . .” Id. (citations and
internal quotation marks omitted). “An underlying order is
fundamentally unfair if (1) a defendant’s due process rights
were violated by defects in his underlying deportation
proceeding, and (2) he suffered prejudice as a result of the
defects.” Id. (citation and internal quotation marks omitted).
Where a prior removal order is premised on the commission
of an aggravated felony, a defendant who shows that the
crime of which he was previously convicted was not, in fact,
an aggravated felony, has established both that his due
process rights were violated and that he suffered prejudice as
a result. See United States v. Camacho-Lopez, 450 F.3d 928,
930 (9th Cir. 2006).

   In ascertaining whether Martinez’s removal was validly
premised on his commission of an aggravated felony, “we
employ the categorical approach. That is, we compare the
elements of the statute forming the basis of [Martinez’s]
conviction with the elements of the generic crime.”
Alvarado-Pineda, 774 F.3d at 1202 (citation and internal
quotation marks omitted). “The prior conviction qualifies as
6               UNITED STATES V. MARTINEZ

the generic offense only if the statute’s elements are the same
as, or narrower than, those of the generic offense.” Id.
(citation and alteration omitted). “A state offense qualifies as
a generic offense—and therefore, in this case, as an
aggravated felony—only if the full range of conduct covered
by the state statute falls within the meaning of the generic
offense.” Id. (citation, alteration, and internal quotation
marks omitted).

   At the time of Martinez’s conviction, Wash. Rev. Code
§ 9A.44.089 (2001) provided:

       (1) A person is guilty of child molestation in
       the third degree when the person has, or
       knowingly causes another person under the
       age of eighteen to have, sexual contact with
       another who is at least fourteen years old but
       less than sixteen years old and not married to
       the perpetrator and the perpetrator is at least
       forty-eight months older than the victim.

       (2) Child molestation in the third degree is a
       class C felony.

Under Washington law, “‘[s]exual contact’ means any
touching of the sexual or other intimate parts of a person done
for the purpose of gratifying sexual desire of either party or
a third party.” Wash. Rev. Code § 9A.44.010(2) (2001)
(internal quotation marks omitted).

    We conclude that Martinez’s conviction for third-degree
child molestation does not categorically qualify as an
aggravated felony. An aggravated felony is defined by
8 U.S.C. § 1101(a)(43)(A), inter alia, as “murder, rape, or
               UNITED STATES V. MARTINEZ                     7

sexual abuse of a minor[.]” The issue raised in this appeal is
whether the Washington offense of third-degree child
molestation constitutes “sexual abuse of a minor.” Id. In a
series of opinions, we have articulated an evolving generic
definition of this offense. In Estrada-Espinoza v. Mukasey,
546 F.3d 1147 (9th Cir. 2008) (en banc), overruled on other
grounds by United States v. Aguila-Montes de Oca, 655 F.3d
915 (9th Cir. 2014) (en banc) (per curiam), abrogated by
Descamps v. United States, 133 S. Ct. 2276 (2013), we held
that “the generic offense of ‘sexual abuse of a minor’ requires
four elements: (1) a mens rea level of knowingly; (2) a
sexual act; (3) with a minor between the ages of 12 and 16;
and (4) an age difference of at least four years between the
defendant and the minor.” Estrada-Espinoza, 546 F.3d at
1152 (citation and internal quotation marks omitted).

    In United States v. Medina-Villa, 567 F.3d 507 (9th Cir.
2009), we determined that the generic offense of sexual abuse
of a minor was not limited to the elements delineated in
Estrada-Espinoza. Instead, we reasoned that Estrada-
Espinoza’s definition “encompassed statutory rape crimes
only—that is, sexual offenses involving older as well as
younger adolescents, not crimes prohibiting conduct harmful
to younger children specifically. . . .” Id. at 514. We have
since interpreted Medina-Villa and its progeny as recognizing
“a residual category of ‘sexual abuse of a minor’ . . . that
encompasses statutes where (1) the conduct proscribed is
sexual; (2) the statute protects a minor; and (3) the statute
requires abuse. . . .” United States v. Gomez, 757 F.3d 885,
904 (9th Cir. 2014) (citation, alteration, and some internal
quotation marks omitted).

   In Gomez, we applied this definitional framework in
concluding that an Arizona statute prohibiting “attempted
8              UNITED STATES V. MARTINEZ

sexual conduct with a minor under the age of 15” was not
categorically an offense involving sexual abuse of a minor.
Id. at 900, 902. At issue in Gomez was whether the
defendant’s conviction for violating Ariz. Rev. Stat. § 13-
1405 warranted a sixteen-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) as a crime of violence. See id. at 902.
Pursuant to A.R.S. § 13-1405:

       A. A person commits sexual conduct with a
       minor by intentionally or knowingly engaging
       in sexual intercourse or oral sexual contact
       with any person who is under eighteen years
       of age.

       B. Sexual conduct with a minor who is under
       fifteen years of age is a class 2 felony and is
       punishable pursuant to § 13-705. Sexual
       conduct with a minor who is at least fifteen
       years of age is a class 6 felony. Sexual
       conduct with a minor who is at least fifteen
       years of age is a class 2 felony if the person is
       or was the minor’s parent, stepparent,
       adoptive parent, legal guardian or foster
       parent or the minor’s teacher or clergyman or
       priest and the convicted person is not eligible
       for suspension of sentence, probation, pardon
       or release from confinement on any basis
       except as specifically authorized by § 31-233,
       subsection A or B until the sentence imposed
       has been served or commuted.

In determining that the Arizona statute was missing elements
of the generic definition of sexual abuse of a minor, we held:
               UNITED STATES V. MARTINEZ                     9

       A conviction under this statute does not meet
       the definition set forth in Estrada–Espinoza
       for two reasons: (1) it lacks the age difference
       requirement; and (2) is broader than the
       generic offense with respect to the age of the
       minor because the statute applies to persons
       under eighteen years of age. Here, analyzing
       the ‘under fifteen’ version of § 13–1405, the
       statute continues to lack the age difference
       element. Section 13–1405 also does not meet
       the generic definition of sexual abuse of a
       minor under the Medina–Villa framework as
       it lacks the element of ‘abuse.’ Again,
       analyzing the ‘under fifteen’ version, the
       statute continues to lack the element of
       ‘abuse’ because the statute may apply to
       victims who are not younger than fourteen
       years.

Id. at 904 (citations and some internal quotation marks
omitted).

    We similarly conclude that Wash. Rev. Code § 9A.44.089
(2001), an indivisible statute, does not categorically meet the
generic definition of sexual abuse of a minor due to its
missing elements.         Indeed, the Washington statute
“criminalizes a broader swath of conduct than the relevant
generic offense,” Descamps, 133 S. Ct. at 2281, because it
criminalizes touching over clothing as opposed to the generic
offense’s requirement of skin-to-skin contact. See State v.
Soonalole, 992 P.2d 541, 544 & n.13 (Wash. Ct. App. 2000)
(holding that “the fondling and thigh rubbing over the
victim’s clothes” constituted a separate act of third-degree
child molestation for double jeopardy purposes); see also
10             UNITED STATES V. MARTINEZ

United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as
amended (holding that a California statute prohibiting lewd
and lascivious acts on a child was categorically broader than
the generic definition for sexual abuse of a minor because
“[l]ewd touching [under the state statute] can occur through
a victim’s clothing and can involve any part of the victim’s
body”).

    “In the absence of a categorical match, we may, in some
circumstances, apply the modified categorical approach,
under which we consider whether certain documents in the
record or judicially noticeable facts show that the conviction
qualifies as an aggravated felony. . . .” Aguilar-Turcios v.
Holder, 740 F.3d 1294, 1301 (9th Cir. 2014) (citation and
internal quotation marks omitted). However, we are unable
to resort to the modified categorical approach because the
Washington statute “has a single, indivisible set of elements”
and is missing elements of the generic definition of sexual
abuse of a minor. Descamps, 133 S. Ct. at 2282; see also
Gomez, 757 F.3d at 903–04. The Washington offense is
missing the element of “abuse” as required under the Medina-
Villa standard, because it does not require “abuse” based on
“physical or psychological harm in light of the age of the
victim in question.” Medina-Villa, 567 F.3d at 513 (citations
and internal quotation marks omitted). The Washington
offense is also missing the element of a “sexual act” as
required under the Estrada-Espinoza analysis, because a
conviction may be based on touching over clothing while the
generic offense “requires, at a minimum, an intentional
touching, not through the clothing, of a minor’s genitalia.”
Castro, 607 F.3d at 570. Because the state offense is missing
elements of sexual abuse of a minor, we may not consult the
relevant documents relating to Martinez’s conviction in
ascertaining whether he committed an aggravated felony. See
                   UNITED STATES V. MARTINEZ                            11

United States v. Aguilera-Rios, 769 F.3d 626, 637 (9th Cir.
2014), as amended (“Because the statute is missing an
element of the generic crime, our inquiry ends here—we do
not undertake a modified categorical analysis.”) (citation and
alterations omitted).1

    Applying Jimenez-Juarez, the district court reached an
opposite conclusion and held that Martinez’s prior conviction
was categorically an aggravated felony because it
encompassed “abuse.” However, in Jimenez-Juarez, we
confined our analysis to whether the petitioner’s conviction
under Wash. Rev. Code § 9A.44.089 constituted “child
abuse” as defined in 8 U.S.C. § 1227(a)(2)(E), and did not
otherwise address whether the offense was an aggravated
felony involving sexual abuse of a minor. See Jimenez-
Juarez, 635 F.3d at 1170 & n.1.2 We therefore applied the
less stringent definition for child abuse which relates to “any
offense that (1) involves an intentional, knowing, reckless, or
criminally negligent act or omission that (2) constitutes
maltreatment of a child or that impairs a child’s physical or
mental well-being, including sexual abuse or exploitation.”
Id. at 1171 (citation omitted). In contrast, the generic offense
of sexual abuse of a minor categorically corresponds only to
those crimes that fit the narrower definitions set out in



     1
    Gomez and Castro apply to Martinez’s collateral challenge to the
underlying removal order because his appeal “concerns not the duty to
inform the noncitizen of his eligibility for relief in a removal proceeding,
but whether he was removable at all.” Aguilera-Rios, 769 F.3d at 631
(emphases in the original).
 2
   The Notice To Appear in this case charged Martinez as removable only
because he had committed an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(A), for a crime of “sexual abuse of a minor.”
12             UNITED STATES V. MARTINEZ

Estrada-Espinoza (for statutory rape crimes) and Medina-
Villa (for crimes of “abuse”).

IV.     CONCLUSION

    We conclude that Martinez was not removable based on
an aggravated felony. A conviction premised on a violation
of Wash. Rev. Code § 9A.44.089 (2001) does not
categorically meet the generic definition of sexual abuse of a
minor due to the missing elements in the statutory provision.
Because the Washington statute is indivisible, we may not
resort to the modified categorical approach in determining
whether Martinez’s conviction constituted an aggravated
felony that would warrant his removal. Reversal of the
district court’s denial of Martinez’s motion to dismiss the
indictment is justified because the government is unable to
demonstrate, as required for a violation of 8 U.S.C. § 1326,
that Martinez was removed pursuant to a valid removal order.
See Alvarado-Pineda, 774 F.3d at 1201 (articulating that “the
removal order serves as a predicate element of [the
defendant’s] conviction”) (citations omitted).

      REVERSED and REMANDED.
