                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SALVADOR ESPINOZA-GONZALEZ,                      No. 11-70360
AKA Salvador G. Espinoza,
                                                 Agency No. A021-576-036
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 6, 2013
                              Pasadena, California

Before: TROTT, LUCERO**, and W. FLETCHER, Circuit Judges.

       Petitioner Salvador Espinoza-Gonzalez (“Espinoza”) was a Lawful

Permanent Resident of the United States when he pled no contest to sexual abuse

under Arizona Criminal Code § 13-1404. During removal proceedings, the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
Immigration Judge (“IJ”) applied the modified categorical approach and

determined that Espinoza’s prior conviction constituted a “rape” for purposes of 8

U.S.C. § 1101(43)(A), an aggravated felony. The IJ relied on statements made

during Espinoza’s plea colloquy to determine that Espinoza’s conviction

constituted a rape. On this basis, the IJ found Espinoza removable and unable to

claim cancellation of removal. The BIA affirmed without opinion.

      Sexual abuse, the crime to which Espinoza pled, is defined under Arizona

law as:

      A person commits sexual abuse by intentionally or knowingly engaging in
      sexual contact with any person who is fifteen or more years of age without
      consent of that person or with any person who is under fifteen years of age if
      the sexual contact involves only the female breast.

      Ariz. Rev. Stat. § 13-1404.

      Arizona defines “sexual contact” as:

      2. “Sexual contact” means any direct or indirect touching, fondling or
      manipulating of any part of the genitals, anus or female breast by any part of
      the body or by any object or causing a person to engage in such contact.

Ariz. Rev. Stat. § 13-1401(2).

      The parties agree that the generic crime of rape requires some type of

intercourse or penetration. The IJ also adopted this definition. This is consistent

with Ninth Circuit case law. See Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th



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Cir. 2000); see also United States v. Yanez-Saucedo, 295 F.3d 991, 995 (9th Cir.

2002). The parties also agree that because Espinoza’s conviction required only the

element of “sexual contact,” which does not specify penetration under Arizona

law, the conviction for sexual abuse is not a categorical match for a “rape” under 8

U.S.C. § 1101(43)(A). See Taylor v. United States, 495 U.S. 575, 598-600 (1990).

Espinoza’s conviction is only an aggravated felony if it qualifies under the

modified categorical approach. See Shepard v. United States, 544 U.S. 13, 26

(2005).

      While Espinoza’s case was pending before this court, the Supreme Court

reversed this circuit’s recent en banc holding addressing this issue, United States v.

Aguila-Montes de Oca, 655 F.3d 915, 940 (9th Cir. 2011). See Descamps v.

United States, 133 S. Ct. 2276, 2283 (2013). The Court rejected Aguila’s

methodology as “turn[ing] an elements-based inquiry into an evidence-based one.”

Id. at 2287. The Descamps opinion reiterated that the modified categorical

approach is useful only to enumerate the actual elements of the crime of conviction,

not to determine whether the facts that might underlie the conviction constitute the

generic crime. Id. at 2285-87. The modified categorical approach applies only

when a statute provides multiple alternative methods for conviction, at least one of

which would include all of the elements of the generic crime. Id. at 2285.


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      In this case, none of the forms of contact included in the definition of

“sexual contact” requires penetration. This is in direct contrast to Arizona’s

definition of “sexual intercourse”:

      “Sexual intercourse” means penetration into the penis, vulva or anus by any
      part of the body or by any object or masturbatory contact with the penis or
      vulva.

Ariz. Rev. Stat. § 13-1401(3). Penetration is thus never a required element of

sexual abuse under any formulation. Regardless of whether the Arizona statute is

technically “divisible” in its form, no method of division would produce the

required element.

      The Government argues that we should not apply the Descamps rule to this

case because Descamps addresses a criminal statute, the Armed Career Criminal

Act, rather than a civil immigration statute. Notably, prior to the Court’s decision

in Descamps, the Government did not argue in its briefs that Shepard and Taylor

were inapplicable in the immigration context. We see no reason to ignore

Descamps. The Supreme Court applies its criminal-law precedents in the

immigration context, and vice versa. See, e.g., Descamps, 133 S. Ct. at 2283-85;

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013); Johnson v. United States,

559 U.S. 133, 144 (2010); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186-89

(2007); see also Young v. Holder, 697 F.3d 976, 982 (9th Cir. 2012).


                                          4
      Remand is unnecessary here. This is not an instance where additional fact-

finding might be necessary for a “circumstance-specific” analysis, given that the

Supreme Court has already expressly held that “rape” as defined in 8 U.S.C. §

1101(43)(A) is a generic crime. Nijhawan v. Holder, 557 U.S. 29, 37 (2009) (“The

‘aggravated felony’ statute lists several of its ‘offenses’ in language that must refer

to generic crimes. Subparagraph (A), for example, lists ‘murder, rape, or sexual

abuse of a minor.’”).

      We GRANT the Petition for Review and REMAND for further proceedings

consistent with this disposition.

GRANTED and REMANDED.




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