Ivan Valdez Amador v. Merrick Garland

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 point, but
disagreed as to whether the statute is a categorical
aggravated felony or, alternatively, an “overbroad” statute.

Applying the categorical approach, the panel considered
Valdez’s argument that subsection (D) falls outside the
generic federal definition of rape. The panel noted that the
BIA had asked the parties to brief the issue and concluded
that the generic federal definition of rape did not encompass
sexual intercourse involving deceit. However, the panel
concluded that there were now two potential problems with
the BIA’s analysis: 1) because Section 261(a)(4) was clearly
divisible at that time, the government did not advance the
argument that the statute was categorically an aggravated
felony, and the BIA had no reason to examine the issue
thoroughly; 2) California law had changed significantly in
the past decade.
4 VALDEZ AMADOR V. GARLAND

The panel observed that the court owes deference to the
BIA on the question whether the generic definition of rape
includes consensual intercourse obtained through fraud.
However, because this issue was not argued before the BIA,
and in light of new developments in case law, the panel
remanded for the BIA to have an opportunity to carefully
consider the question.

Concurring in part and dissenting in part, Judge Graber
agreed with the majority opinion as to removability, but
disagreed as to cancellation of removal. Because the BIA
already held—in a reasoned, persuasive decision—that
Section 261(a)(4) is not a categorical match for the federal
definition of an aggravated felony, Judge Graber would
uphold the BIA’s decision in that regard; hold that Petitioner
is statutorily eligible for cancellation; grant the petition; and
remand for the BIA’s discretionary decision whether to grant
cancellation. Judge Graber wrote that the majority opinion’s
decision to remand for the BIA to reconsider its categorical
analysis was relief sought by no party, found no support in
the facts or the law, and needlessly prolonged already
protracted litigation.

Judge Graber observed that this case provided yet
another example of the substantive and procedural mess
caused in immigration cases by the categorical approach and
the modified categorical approach. Judge Graber wrote that,
even if only a legislative act could dissolve the categorical
approach in toto, the Supreme Court could alleviate part of
the problem by permitting a more practical inquiry under the
modified categorical approach. Thus, Judge Graber
respectfully encouraged the Court to reconsider its decision
in Mathis in an appropriate case.
 VALDEZ AMADOR V. GARLAND 5

COUNSEL

Mario Acosta Jr. (argued), Law Office of Mario Acosta Jr.,
Santa Fe Springs, California, for Petitioner.

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S.
Hogan, Assistant Director; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.

OPINION

ZOUHARY, District Judge:

Petitioner Ivan Valdez Amador (“Valdez”), a native and
citizen of Mexico, was ordered removed after an
Immigration Judge (“IJ”) determined that he was removable
due to his conviction for domestic violence and ineligible for
cancellation of removal due to his conviction for rape of an
unconscious person. After remanding the case to the IJ three
times, the Board of Immigration Appeals (“BIA”)
determined in 2013 that Valdez’s criminal convictions
rendered him removable and ineligible for cancellation of
removal. Valdez then petitioned for review of the BIA
decision. This Court has jurisdiction under 8 U.S.C.
§ 1252(a).

FACTUAL AND PROCEDURAL BACKGROUND

Valdez was admitted as a legal permanent resident in
1989 at age nine. In 2005, he was convicted in state court of
“inflicting corporal injury on a spouse or cohabitant,” in
violation of California Penal Code § 273.5(a), and of driving
under the influence of alcohol. He was sentenced to
150 days incarceration. Later that year, Valdez was
6 VALDEZ AMADOR V. GARLAND

convicted of violating a protective order and sentenced to
20 days incarceration.

In 2010, Valdez was convicted in the same state court for
“felony rape of an unconscious person” in violation of
California Penal Code § 261(a)(4). He was sentenced to one
year in prison, five years of probation, and ordered to register
as a sex offender. Weeks later, the federal government
served Valdez with a notice to appear, alleging he was
removable due to his status as an aggravated felon. In 2011,
Valdez appeared with counsel before an IJ. He admitted that
he had been convicted of rape of an unconscious person, but
argued that the crime did not constitute an aggravated felony.
The government then lodged two more removal charges:
one for being convicted of a crime involving domestic
violence (Section 273.5(a)), and another for being convicted
of two “crimes involving moral turpitude” (“CIMT”). The
IJ concluded that Valdez’s actual conduct in committing the
crime of “rape of an unconscious person” fit the common
law definition of rape, rendering Valdez an “aggravated
felon” who is both removable and ineligible for cancellation
of removal.

Valdez appealed to the BIA, arguing: (1) Section
261(a)(4) is “divisible” because two subsections of the
statute involve the use of fraud to obtain sex; (2) the IJ
improperly relied on the criminal complaint to determine
which subsection of the statute he was convicted under;
(3) the electronic conviction records were not properly
authenticated; and (4) Section 273.5(a) is not categorically a
crime of domestic violence or a CIMT because the statute
criminalizes violence against a person who is not in a
protected relationship.

The BIA found that, in light of Banuelos-Ayon v. Holder,
611 F.3d 1080 (9th Cir. 2010), the conviction documents
 VALDEZ AMADOR V. GARLAND 7

underlying the Section 273.5(a) conviction were sufficient
to demonstrate removability. But the BIA remanded to the
IJ for reconsideration of cancellation of removal. In
particular, the IJ considered whether a violation of Section
261(a)(4) was categorically a “rape” offense under 8 U.S.C.
§ 1101(a)(43)(A). The IJ ruled that the Section 261(a)(4)
conviction categorically constituted an aggravated felony.

Back to the BIA once again. This time, Valdez pointed
to intervening case law holding that a violation of Section
273.5(a) was not a categorical CIMT, and he argued that it
was similarly not a crime of domestic violence. The BIA
rejected that argument and again found Valdez removable
due to the Section 273.5(a) conviction. However, the BIA
held that Section 261(a)(4) encompassed “some conduct that
is commonly understood as rape” and “some conduct that is
not,” namely “sexual intercourse with a victim who
consented due to fraud.” So, in 2012, the BIA again
remanded to the IJ to determine whether Valdez could
demonstrate eligibility for cancellation of removal.

On remand, the IJ disagreed. The IJ certified the record
back to the BIA for “reconsideration,” arguing the decision
was inconsistent with “binding precedential authority,”
specifically, Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir.
2000). Castro-Baez held that rape under Section 261(a)(3),
involving a victim who is “prevented from resisting by any
intoxicating or anesthetic substance, or any controlled
substance,” is categorically an aggravated felony. 217 F.3d
at 1059. The BIA was unmoved and noted that Castro-Baez
was inapposite because it dealt with a statute that “require[d]
absence of consent as an element.” The BIA declined the
request for certification and again remanded—this time to a
different IJ.
8 VALDEZ AMADOR V. GARLAND

Before the new IJ, the government presented transcripts
from the preliminary hearing and guilty-plea hearing
outlining the factual basis of Valdez’s guilty plea under
Section 261(a)(4). The IJ held that the conviction documents
made clear Valdez was not convicted under the fraudulent-
representation subsection of the statute—the only portion of
the statute that would not be an aggravated felony. Valdez
appealed again, arguing the preliminary-hearing transcript
was insufficient to demonstrate under which subsection of
Section 261(a)(4) he pled guilty and that Section 273.5(a)
was a divisible statute.

In April 2013, the BIA dismissed Valdez’s appeal for
three reasons. First, the BIA again noted that Valdez was
removable for his Section 273.5(a) conviction and that he
had waived any argument to the contrary. Second, Valdez
was not eligible for cancellation of removal because,
applying the modified categorical approach, the conviction
documents demonstrated that he did not plead guilty under
the fraudulent-representation provision of Section 261(a)(4),
and he therefore failed to establish that he was not an
aggravated felon. Finally, the BIA noted that Valdez waived
any other claims to asylum, withholding of removal,
protection under the Convention Against Torture,
adjustment of status, or voluntary departure.

Valdez then petitioned this Court for review. In 2013, a
motions panel denied Valdez’s motion for a stay of removal,
as well as the government’s motion for summary disposition.
Valdez’s case was stayed pending resolution of several
cases, including Almanza-Arenas v. Lynch, 815 F.3d 469
(9th Cir. 2016) (en banc), and Mathis v. United States, 136
S. Ct. 2243 (2016). This Court then sought briefing on
possible remand, after Pereida v. Wilkinson, 141 S. Ct. 754,
761–63 (2021), held that, where a statute is divisible,
 VALDEZ AMADOR V. GARLAND 9

petitioners are “obliged to show” they were convicted under
the statute’s non-aggravated-felony provision in order to
demonstrate eligibility for cancellation of removal. Both
parties agreed a remand was unnecessary, as this case turns
on statutory interpretation, not the record of conviction.

Valdez presents a two-fold challenge to the BIA
decision. He argues: (1) his conviction under Section
273.5(a) is not a removable offense; and (2) he is eligible for
cancellation of removal because Section 261(a)(4) is not a
categorical aggravated felony. We address each argument
below.

LEGAL STANDARD

We review de novo the BIA’s conclusions that Valdez is
removable and ineligible for discretionary relief. See
Carrillo v. Holder, 781 F.3d 1155, 1157 (9th Cir. 2015);
Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014). In
doing so, we review de novo whether a state conviction is an
aggravated felony, Jauregui-Cardenas v. Barr, 946 F.3d
1116, 1118 (9th Cir. 2020), and employ the categorical and
modified categorical approaches. Syed v. Barr, 969 F.3d
1012, 1017 (9th Cir. 2020). Under either approach, we “ask
whether the statutory elements of the crime of conviction
match the elements of the generic offense.” Id.

DISCUSSION

Valdez is removable for his domestic-violence
conviction.

Under 8 U.S.C. § 1227 (a)(2)(E)(i), a person is
removable if convicted of any “crime of domestic violence.”
Valdez argues that, “because [Section 273.5(a)] punishes
injury committed on a co-habitant, and this may involve one
10 VALDEZ AMADOR V. GARLAND

with whom the defendant has no special ‘domestic’
relationship with,” it is not categorically a crime of domestic
violence. He points to Morales-Garcia v. Holder, 567 F.3d
1058, 1060 (9th Cir. 2009), which held that a violation of
Section 273.5(a) is not categorically a CIMT. But we have
squarely rejected that argument:

[W]e do not overlook Morales-Garcia [],
which decided that § 273.5 is not
categorically a CIMT. That case is simply
inapposite to the issue before us. It did not,
and could not, decide whether § 273.5 was a
crime of domestic violence; it simply decided
whether it was a CIMT. Perhaps a conviction
under § 273.5 will sometimes be a CIMT;
perhaps it will sometimes be an aggravated
felony; but it categorically is a crime of
domestic violence.

Carrillo, 781 F.3d at 1159–60 (emphasis added).

Valdez makes a second argument—that the IJ relied on
improper conviction documents, and therefore the
government “failed to prove the existence of this
conviction.” Before the IJ, the government produced the
criminal information and the minute order from Valdez’s
sentencing. Count 4 of the information charged Valdez with
“the crime of INFLICTING CORPORAL INJURY UPON
A SPOUSE OR COHABITANT, in violation of [Section]
273.5(A)” by “willfully and unlawfully inflict[ing] corporal
injury resulting in a traumatic condition upon [] THE
MOTHER OF [HIS] CHILD/CHILDREN.” The Minute
Order from Valdez’s sentencing then notes that he was
“sentenced pursuant to plea bargain” for “004 PC273.5(A).”
As the BIA noted, “[t]he certification stamps appearing on
 VALDEZ AMADOR V. GARLAND 11

the [] conviction records are dated and signed by the court’s
Executive Officer, and are supplemented by a signed
attestation of the receiving [government] officer.” These
documents are sufficient to establish Valdez’s Section
273.5(a) conviction. See Sinotes-Cruz v. Gonzales, 468 F.3d
1190, 1195–97 (9th Cir. 2006) (admitting copies of criminal
convictions that were stamped by an immigration agent and
appeared to be official state-court records even where
certification by a state official was lacking).

A final point. The BIA and the government note that,
before the IJ, counsel for Valdez conceded that the Section
273.5(a) conviction rendered Valdez removable:

Q: So let me just make sure that I’m
understanding the posture of the case. We’re
still at the removal stage or we’re at the
cancellation – in other words, has
removability been established already or is
that still at issue?

A: Removability has been established. The
[IJ] initially found [Valdez’s] 273.5
conviction was a crime of domestic violence
. . . so that’s the charge that’s been sustained.
The charge that has not been sustained, that
the [BIA] has remanded . . . is the aggravated
felony charge[.]

* * *

Q: So there’s a lodged charge here
somewhere?
12 VALDEZ AMADOR V. GARLAND

A: . . . Yes, there is an I-261, Judge, that was
filed in Court . . . . And that’s the one that
added the 237(a)(2)(E) charge.

* * *

Q: All right. So both of you agree that
removability has been established with
regard to the lodged charge?

A: Yes.

Valdez argues this colloquy was in no way a concession,
but we disagree. He also admitted to the conviction in his
motion for bond before the IJ. The record—and the law—
are clear: Valdez was convicted of a crime of domestic
violence under Section 273.5(a).

Valdez may be ineligible for cancellation of removal
due to his Section 261(a)(4) conviction.

Valdez bears the burden of demonstrating he is eligible
for discretionary relief from removal. Marinelarena v.
Garland, 6 F.4th 975, 977–78 (9th Cir. 2021). To do so, he
must show that he: “(i) satisfies the applicable eligibility
requirements; and (ii) with respect to any form of relief that
is granted in the exercise of discretion, that [he] merits a
favorable exercise of discretion.” 8 U.S.C.
§ 1229a(c)(4)(A). To meet the first requirement, he must
show that he is not an aggravated felon. 8 U.S.C.
§ 1229b(a)(3). A noncitizen convicted of an “aggravated
felony” is not only deportable, but also ineligible for
discretionary relief. Moncrieffe v. Holder, 569 U.S. 184, 187
(2013) (citing 8 U.S.C. § 1227(a)(2)(A)(iii)). The term
“aggravated felony” includes “murder, rape, or sexual abuse
of a minor.” 8 U.S.C. § 1101(a)(43)(A).
 VALDEZ AMADOR V. GARLAND 13

In its final order dismissing Valdez’s appeal, the BIA
noted that—at the time—it was undisputed Section
261(a)(4) was not a categorical aggravated felony because
“the offense encompasses some conduct that is commonly
understood as rape as well as conduct that is not.” The BIA
then applied the modified categorical approach and—based
on the transcripts of Valdez’s preliminary hearing and
guilty-plea hearing—upheld the IJ’s determination that
Valdez did not plead guilty under subsection (D), the only
provision of Section 261(a)(4) that would not have been an
aggravated felony.

In the interim, Mathis held that if a statute lists “various
factual means of committing a single element,” it is
“indivisible,” and the modified categorical approach is
therefore inapplicable. 136 S. Ct. at 2249. Unlike elements,
“means” are “[h]ow a given defendant actually perpetrated
the crime—what we have referred to as the ‘underlying brute
facts or means’ of commission.” Id. at 2251 (quoting
Richardson v. United States, 526 U.S. 813, 817 (1999)).
Unless “a jury must unanimously agree on which of the . . .
statutory alternatives a defendant committed to return a
conviction,” the alternatives are “means.” United States v.
Robinson, 869 F.3d 933, 938 (9th Cir. 2017). Here, the
subsections of Section 261(a)(4) are “means” because the
jury need not specify under which circumstances a victim
must be rendered “unconscious of the nature of the act.”
Section 261(a)(4) is therefore “indivisible,” and the BIA—
through no fault of its own—erred in applying the modified
categorical approach. Valdez and the government correctly
agree on this point. They disagree, however, as to whether
Section 261(a)(4) is a categorical aggravated felony or,
alternatively, an “overbroad” statute.
14 VALDEZ AMADOR V. GARLAND

Because the statute is now “indivisible,” we cannot look
to the underlying facts to determine which subsection Valdez
violated. We must take the statute as a whole: “Our
decisions authorize review of the plea colloquy or other
approved extra-statutory documents only when a statute
defines [the state crime] not (as here) overbroadly, but
instead alternatively, with one statutory phrase
corresponding to the generic crime and another not.”
Descamps v. United States, 570 U.S. 254, 265 (2013). The
full range of conduct covered by Section 261(a)(4) must fit
the generic definition of “rape,” otherwise it is “too-broad.”
Mathis, 136 S. Ct. at 2254. If the statute is overbroad,
Valdez may be eligible for discretionary relief from removal.

To make this determination, we apply the categorical
approach, in which we examine “whether the state statute
defining the crime of conviction categorically fits within the
generic federal definition of a corresponding aggravated
felony.” Moncrieffe, 569 U.S. at 190 (internal quotation
marks and citation omitted). To be a categorical match, the
offense must “necessarily involve[] . . . facts equating to
[the] generic [federal offense].” Shepard v. United States,
544 U.S. 13, 24 (2005) (quotation marks omitted). We
assume the conviction “rested upon nothing more than the
least of the acts criminalized, and then determine whether
even those acts are encompassed by the generic federal
offense.” Moncrieffe, 569 U.S. at 190–91 (cleaned up).

Step one. We must establish what conduct is covered by
the state statute. California law defines rape as “‘an act of
sexual intercourse accomplished with a person not the
spouse of the perpetrator,’ under any of seven specifically
enumerated circumstances.” Castro-Baez, 217 F.3d at 1059
(citing Section 261(a)(1)–(7)). Valdez pled no contest to a
violation of Section 261(a)(4), which occurs when the victim
 VALDEZ AMADOR V. GARLAND 15

“is at the time unconscious of the nature of the act, and this
is known to the accused.” The phrase “unconscious of the
nature of the act” means the victim was incapable of resisting
because the victim:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or
cognizant that the act occurred.

(C) Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of
the act due to the perpetrator’s fraud in fact.

(D) Was not aware, knowing, perceiving, or
cognizant of the essential 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.

Id.

Step two. We next determine the generic federal
definition of “rape.” Valdez argues that subsection (D)
(“fraudulent representation”) falls outside the generic
federal definition of rape. This question has been raised
previously. In 2012, the BIA directed the parties to brief
whether the generic federal definition of rape also
encompasses sexual intercourse involving deceit. The BIA
then answered that question in the negative, noting:

In 1996, when Congress added “rape” to
the list of aggravated felonies, only 23 of
50 states continued to use the term “rape” to
define offenses in their criminal codes; and of
16 VALDEZ AMADOR V. GARLAND

those 23 states, only 4 expressly denominated
sexual intercourse by fraud or deception as a
form of “rape.” Under the Model Penal
Code, moreover, sexual intercourse by
deception is classified as “gross sexual
imposition,” while the label “rape” is
reserved for offenses in which non-consent is
clearly established, such as where the victim
is subjected to sexual intercourse by force or
while unconscious or drugged.

(citations omitted). But there are now two potential
problems with this analysis.

First, as explained above, Mathis held that the modified
categorical approach no longer applies to statutes like
Section 261(a)(4). That case was not decided until 2016.
Prior to Mathis, Section 261(a)(4) was clearly divisible, and
therefore the government had no reason to assert that the
statute’s fraudulent-representation provision fit the federal
definition of rape—”unlawful sexual activity . . . with a
person . . . without consent and [usually] by force or threat
of injury.” United States v. Yanez-Saucedo, 295 F.3d 991,
996 (9th Cir. 2002) (ellipses in original) (quoting BLACK’S
LAW DICTIONARY (7th ed. 1999)). Simply put, the statute
did not have to be a categorical aggravated felony in order
for Valdez to be ineligible for cancellation of removal. For
this reason, the government did not advance the argument,
and the BIA had no reason to examine the issue thoroughly.

Second, California law has changed significantly in the
past decade. Previously, intercourse involving consent
obtained through fraud was not considered rape. See, e.g.,
People v. Stuedemann, 67 Cal. Rptr. 3d 13, 16 (Ct. App.
2007) (“When lack of consent is a necessary element of a
crime, the fact the defendant employed fraudulent
 VALDEZ AMADOR V. GARLAND 17

misrepresentations to induce the victim to consent to the
proscribed act ordinarily does not vitiate the consent to
supply the required element of nonconsent.”). But the
California legislature amended the state’s sex crimes laws
“to expand the circumstances under which a defendant may
be prosecuted for fraudulently inducing a victim to consent
to sexual conduct.” People v. Pham, 103 Cal. Rptr. 3d 366,
370 (Ct. App. 2009).

After briefing in this case concluded, the California
Supreme Court addressed the consent issue head-on in
People v. Robinson, 370 P.3d 1043 (Cal. 2016). “In the
sexual assault context, it is settled that ‘without the victim’s
consent’ has the same meaning as ‘against the victim’s
will.’” Id. at 1047–48 (internal quotation marks and citation
omitted). In evaluating “whether a touching is without
consent when the victim is ‘unconscious’ of its sexual
nature,” Robinson held that “[i]t is apparent from the history
of [the sexual-assault statute] that the Legislature indeed
intended the statute to establish that misrepresentation of
professional purpose may negate a victim’s consent.” Id.
at 1048.

Relying on Robinson, a California appellate court
outlined why a victim who is “unconscious of the nature of
the act,” including through fraudulent representation under
subsection (D), cannot consent:

In 2016, the Supreme Court held that the new
law reflected the Legislature’s intent that . . .
fraud in the inducement would henceforth be
deemed to vitiate consent. Section 261.6,
which defines “consent” for purposes of
[Section 261], specifies that the term means
“positive cooperation in act or attitude
pursuant to an exercise of free will.” The
18 VALDEZ AMADOR V. GARLAND

person must act freely and voluntarily and
have knowledge of the nature of the act or
transaction involved. The term “unconscious
of the nature of the act,” as used in the
statute[] . . . is based on this understanding of
the consent requirement. Thus, the
Legislature has refined the consent
requirements for sex crimes to include not
only the ordinary circumstance where
consent is never given, but also more
complicated circumstances where it is
obtained through deceit.

People v. Icke, 214 Cal. Rptr. 3d 755, 761–62 (Ct. App.
2017) (cleaned up). Thus, under California law, “a victim’s
unawareness of the nature of a sexual act is the equivalent of
the victim’s lack of consent.” Id. at 762 (citing Robinson,
370 P.3d at 1048–49) (emphasis in original).

Does the generic federal definition of rape include
consensual intercourse obtained through fraud? This is a
question to which we owe deference to the BIA. See Yim v.
Barr, 972 F.3d 1069, 1077 (9th Cir. 2020). Because this
issue has not been argued before the BIA, and in light of new
developments in case law over the last decade, it is
appropriate for the BIA to have an opportunity to carefully
consider the question. This is the exact relief sought by the
government at argument. We share the dissent’s frustration
with both the categorical approach and the lengthy
procedural history of this case, but those concerns do not
control the outcome.

CONCLUSION

The BIA correctly determined Valdez is removable due
to his domestic-violence conviction. Whether he is eligible
 VALDEZ AMADOR V. GARLAND 19

for cancellation of removal is not so clear. We therefore
deny the petition in part, grant the petition in part, and
remand to the BIA to consider whether the generic federal
definition of rape includes intercourse involving consent
obtained through fraud. In light of this opinion, the Motion
to Remand (Doc. 61) is denied as moot. The parties shall
bear their own costs on appeal.

PETITION FOR REVIEW DENIED IN PART AND
GRANTED IN PART; REMANDED.

GRABER, Circuit Judge, concurring in part and dissenting
in part:

I agree with the majority opinion that the Board of
Immigration Appeals (“BIA”) correctly held that Petitioner
is removable. Op. at 9–12. I therefore concur in part.

But I respectfully disagree with the majority opinion’s
analysis of Petitioner’s statutory eligibility for cancellation
of removal. Op. at 12–18. Because the BIA already held—
in a reasoned, persuasive decision—that California Penal
Code section 261(a)(4) is not a categorical match for the
federal definition of an aggravated felony, I would uphold
the BIA’s decision in that regard; hold that Petitioner is
statutorily eligible for cancellation of removal; grant the
petition; and remand for the BIA’s discretionary decision
whether to grant cancellation of removal. The majority
opinion’s decision to remand for the BIA to reconsider its
categorical analysis is relief sought by no party, finds no
support in the facts or the law, and needlessly prolongs
already protracted litigation. I therefore dissent in part.
20 VALDEZ AMADOR V. GARLAND

A. Cancellation of Removal

To be eligible for cancellation of removal, Petitioner
must prove that he has not been convicted of an “aggravated
felony.” 8 U.S.C. §§ 1229a(c)(4)(A)(i), 1229b(a)(3).
Petitioner was convicted of rape, in violation of California
Penal Code section 261(a)(4). The BIA held that section
261(a)(4) is not a categorical match because some conduct
criminalized by section 261(a)(4) lies outside the generic
federal definition of “rape,” an aggravated felony. In
particular, section 261(a)(4) encompasses sexual intercourse
obtained by fraud in the inducement: when the perpetrator
“fraudulent[ly] represent[ed] that the sexual penetration
served a professional purpose when it served no professional
purpose,” Cal. Penal Code § 261(a)(4)(D). But the federal
definition of rape does not encompass sexual intercourse
obtained by fraud in the inducement. So there is no
categorical match.

The BIA further held that, applying the modified
categorical approach and looking to the specifics of
Petitioner’s conviction, Petitioner had been convicted of a
version of rape that fits within the federal definition. He had
not committed rape by fraud in the inducement.
Accordingly, the BIA held that Petitioner is statutorily
ineligible for cancellation of removal.

As the majority opinion cogently explains, and as all
parties now agree, the BIA erred by applying the modified
categorical approach. Op. at 13. Under Mathis v. United
States, 136 S. Ct. 2243 (2016), California Penal Code section
261(a)(4) is not “divisible.” We therefore may not look to
the specifics of Petitioner’s conviction, no matter how clear
it is that he did not commit rape by fraud in the inducement.
 VALDEZ AMADOR V. GARLAND 21

That should be the end of our analysis. I would grant the
petition and remand for the BIA to consider whether
Petitioner merits a favorable exercise of discretion.

The government nevertheless asks us to deny the
petition, asserting that section 261(a)(4) is a categorical
match for the federal definition.

The government’s argument is remarkable procedurally.
The BIA ordered supplemental briefing on that specific
question, and the government responded by arguing—at
length and in detail—that section 261(a)(4) is not a
categorical match. The BIA did not merely accept the
government’s concession. Instead, the BIA provided its own
detailed, persuasive reasoning. Several additional rounds of
proceedings ensued before immigration judges and the BIA,
and the government not once argued to the contrary. Indeed,
in its final decision, the BIA noted that it was “undisputed”
that section 261(a)(4) is not a categorical match. In sum,
during the extensive proceedings conducted by the agency—
spanning four decisions by three different immigration
judges and four decisions by the BIA—the government
never argued that a categorical match existed. To the
contrary, the government expressly conceded, in reasoned
analysis, that there is no categorical fit. The majority
opinion properly holds Petitioner to his own concession of
removability, Op. at 11–12, but declines to apply the same
standard to the government’s clear concession as to the
categorical analysis.

Even were we to reach the merits of the issue, the BIA’s
detailed reasoning is fully persuasive:

In 1996, when Congress added “rape” to
the list of aggravated felonies, only 23 of
50 states continued to use the term “rape” to
22 VALDEZ AMADOR V. GARLAND

define offenses in their criminal
codes,[footnote 2] see Perez-Gonzalez v.
Holder, 667 F.3d 622, 627 (5th Cir. 2012);
and of those 23 states, only 4 expressly
denominated sexual intercourse by fraud or
deception as a form of “rape.”[footnote 3]
Under the Model Penal Code, moreover,
sexual intercourse by deception is classified
as “gross sexual imposition,” while the label
“rape” is reserved for offenses in which non-
consent is clearly established, such as where
the victim is subjected to sexual intercourse
by force or while unconscious or drugged.
See Model Penal Code § 213.1.

In light of the foregoing, we conclude that
when Congress added “rape” to the list of
aggravated felonies, the generic meaning of
that term did not encompass acts of
consensual sexual intercourse committed
through fraud or deception. Cf. also Perez
Gonzalez v. Holder, supra (similarly holding
that, because only a small fraction of states
“considered digital penetration to be rape” at
the time rape was added to the Act as an
aggravated felony, digital penetration is not
covered by the rape provision). Thus, we
hold that Cal. Penal Code § 261(a)(4) does
not define a categorical “rape” aggravated
felony. . . . [California Penal Code section
261(a)(4)] encompasses some conduct that is
commonly understood as rape (e.g., sexual
intercourse with a non-consenting victim) as
well as some conduct that is not (e.g., sexual
 VALDEZ AMADOR V. GARLAND 23

intercourse with a victim who consented due
to fraud).[footnote 4]

[Footnote 2:] See Ala. Code. §§ 13A-6-61
and 62; Ark. Code Ann. § 5-14-103; Cal.
Penal Code § 261; Ga. Code Ann. § 16-6-1;
Idaho Code § 18-6101; Ind. Code § 35-42-4-
1; Kan. Stat. Ann. § 21-3502; Ky. Rev. Stat.
Ann. §§ 510.040, 510.050, 510.060; La. Rev.
Stat. Ann. § 14:41; Md. Ann. Code, art. 27,
§§ 462 and 463 (repealed in 2002 and
replaced with Md. Code Ann., Criminal Law
§ 3-303); Mass. Gen. Laws ch. 265 § 22; Mo.
Rev. Stat. § 566.030; N.Y. Penal Law
§§ 130.25, 130.30, 130.35; N.C. Gen. Stat.
§§ 14-27.2 and 14-27.3; Ohio Rev. Code
Ann. § 2907.02; Okla. Stat. tit. 21, §§ 1111
and 1111.1; Or. Rev. Stat. §§ 163.355,
163.365 and 163.375; 18 Pa. Cons. Stat.
§ 3121; S.D. Codified Laws § 22-22-1; Tenn.
Code Ann. § 39-13-502; Utah Code Ann.
§ 76-5-402; Va. Code Ann. § 18.2-61; Wash.
Rev. Code § 9A.44.040. By 1996, the federal
government, the District of Columbia, and
the remaining 27 states had abandoned use of
the term rape to define offenses in their
criminal codes.

[Footnote 3:] Cal. Penal Code § 261(a)(4);
Idaho Code § 18-6101(6); 21 Okla. Stat.
§ 1111(5)–(6); Tenn. Stat. § 39-13-503(a)(4).
It is possible, however, that some other states
may have recognized the concept of “rape by
fraud” through case law.
24 VALDEZ AMADOR V. GARLAND

[Footnote 4:] We reach our conclusion
reluctantly in light of the disturbing and
abhorrent nature of the offense at issue here
and in Perez-Gonzales, supra, but we are
bound to follow the statute as enacted by
Congress.

We defer to the BIA’s determination that a state crime fits
within the federal definition. Yim v. Barr, 972 F.3d 1069,
1077 (9th Cir. 2020). But even under de novo review, the
BIA’s reasoning is fully convincing. Only a very small
number of jurisdictions defined “rape” to include fraud in the
inducement, and the Model Penal Code excluded fraud in the
inducement from its definition of “rape.”

The majority opinion does not engage with the BIA’s
reasoning. Instead, it provides relief sought by neither party:
it remands to the BIA for its reconsideration of the
categorical approach, asserting that the BIA has not
“examine[d]” “thoroughly” or “carefully consider[ed]” the
issue. Op. at 16, 18. The majority opinion justifies its
decision on two grounds.

First, the majority opinion asserts that the BIA had no
reason to examine the categorical approach thoroughly
because the government relied on the modified categorical
approach and therefore “did not advance the argument” that
there was a categorical match. Op. at 16. That assertion has
no support in the record; to the contrary, the record refutes
that post-hoc justification. The BIA ordered supplemental
briefing on both the categorical and modified categorical
approaches. In response, the government wrote seven
detailed pages explaining why there was no categorical
match. And the BIA did not just accept the parties’
agreement that there was no categorical match; it provided
 VALDEZ AMADOR V. GARLAND 25

detailed, specific, definitive, and persuasive reasoning on the
issue, quoted above.

Nor can it be said that the government and the BIA
merely agreed on the categorical question because the
modified categorical approach provided a clear answer. At
the time, the answer to the modified categorical question was
decidedly unclear. The BIA earlier had concluded that the
record was insufficient under the modified categorical
approach. Moreover, the BIA ultimately concluded that
Petitioner’s conviction qualified under the modified
categorical approach only after two additional hearings
before an IJ, another round of briefing, introduction of new
evidence, two more decisions by an IJ, and one intervening
decision by the BIA in which it reaffirmed its earlier
reasoning on the categorical question.

In sum, the BIA fully and carefully considered the
categorical question. The majority opinion provides no
record citation for its assertion to the contrary, nor can it.
Neither does the majority opinion cite any precedent
justifying a remand for reconsideration in these
circumstances, nor can it.

The majority opinion’s second reason for reopening the
categorical inquiry fares no better. Citing two intervening
decisions by the California courts, the majority opinion
asserts that California law “has changed significantly in the
past decade.” Op. at 16–18 (citing People v. Robinson,
370 P.3d 1043 (Cal. 2016), and People v. Icke, 214 Cal. Rptr.
3d 755 (Ct. App. 2017)). The majority opinion is mistaken.
California law has not changed in any pertinent respect.

In 2012, as now, California Penal Code section 261(a)(4)
criminalized sexual intercourse if the victim “is at the time
unconscious of the nature of the act.” The statute further
26 VALDEZ AMADOR V. GARLAND

stated, and still states, that, “[a]s used in this paragraph,
‘unconscious of the nature of the act’ means incapable of
resisting because the victim . . . (D) Was not aware,
knowing, perceiving, or cognizant of the essential
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.” Id. Also then, as now, California law provided,
and provides, that, “[i]n prosecutions under Section 261 . . .
in which consent is at issue, ‘consent’ means positive
cooperation in act or attitude pursuant to an exercise of free
will. The person must act freely and voluntarily and have
knowledge of the nature of the act or transaction involved.”
Cal. Penal Code § 261.6(a) (emphasis added). In sum, for
purposes of California law, rape obtained by fraud in the
inducement means that the victim was “unconscious of the
nature of the act” which means, in turn, that the victim did
not “consent” as defined by California law.

The intervening California decisions cited by the
majority opinion merely describe that background statutory
law. The decisions do not announce a new principle or
overrule relevant precedent. There has been no relevant
change whatsoever in California law since the BIA issued
the relevant decision. Moreover, California’s statutory
definition of “consent” is irrelevant to the BIA’s cogent
reasoning: when Congress enacted its definition of
aggravated felony, only a small number of jurisdictions
defined rape to encompass fraud in the inducement.
Accordingly, the federal definition of rape does not
encompass fraud in the inducement, no matter what words
the State uses or how the State defines the statutory terms.
The only relevant change in California law occurred in 2002
when, as the BIA correctly recognized in its opinion a
decade later, the California legislature expanded the
 VALDEZ AMADOR V. GARLAND 27

definition of “rape” beyond the generic definition to
encompass rape obtained by fraud in the inducement.

In sum, the BIA correctly held that section 261(a)(4) is
not a categorical match for the federal generic definition of
“rape.” Because the BIA fully considered that issue already,
and because there has been no intervening change in law, I
dissent from the majority opinion’s decision to remand to the
BIA for yet another decision on the identical question. I
would remand for the BIA to determine whether Petitioner
warrants a favorable exercise of discretion.

B. Comments on the Categorical Morass

1. Many others, and I, have commented on the absurdity
of the categorical approach and its cousin, the modified
categorical approach. See, e.g., Alfred v. Garland, 13 F.4th
980, 987 & n.1 (9th Cir. 2021) (England, J., concurring,
joined by Bybee, J.) (collecting a subset of separate
statements by jurists, including one of mine). This case
provides yet another example of both the substantive and
procedural mess that the approach causes.

On the substance: Only in a hyper-technical, theoretical
world does it make any sense to conclude that Petitioner is
not an aggravated felon. Nothing in the record suggests that
Petitioner used a devious professional purpose to lure his
victim. To the contrary, as the IJ put it, it is “obvious” from
the record that Petitioner was convicted for a rape as
traditionally understood; it is “clear” that he did not use fraud
in the inducement. Whatever justification might exist in the
criminal context for declining to allow a factfinder to
determine the nature of a previous conviction, no such
justification exists in the immigration context. More to the
point, I find it implausible, to put it mildly, that Congress
intended the unpalatable result in this case: Petitioner has
28 VALDEZ AMADOR V. GARLAND

affirmatively established eligibility for cancellation of
removal because, contrary to all indications in the record, he
theoretically could have induced his victim using a
professional purpose.

On the procedure: Trying to apply the categorical and
modified categorical approaches is a never-ending
whirlwind of proceedings, reconsiderations, disagreements
by reasonable jurists, and changing legal landscapes. This
case presents a single legal question about a single
conviction, yet it has spawned, over eleven years and
counting: four decisions by the BIA, four decisions by three
different immigration judges, approximately six rounds of
briefing, and a split opinion by this court. And, of course,
the majority opinion concludes that we need at least one
more decision by the BIA, which will almost certainly entail
another round of briefing plus, if Petitioner loses, likely
another petition for review before this court. Yet again, I
find it implausible that Congress intended inquiries into
statutory eligibility for cancellation of removal to require
such an extended process for a run-of-the-mill question
about a single conviction.

2. Some have suggested that, because Congress created
the categorical approach, only Congress can fix the problem.
E.g., Descamps v. United States, 570 U.S. 254, 278–79
(2013) (Kennedy, J., concurring). As just noted, I question
whether Congress actually intended courts to apply the
categorical approach, particularly in the immigration
context. But even accepting that only a legislative act could
dissolve the categorical approach in toto, the Supreme Court
itself could alleviate part of the problem by permitting a
more practical inquiry under the modified categorical
approach.
 VALDEZ AMADOR V. GARLAND 29

In particular, if the record of conviction reveals that a
defendant was convicted of a certain statutory alternative—
whether the alternative is formally an element or a means—
then the modified categorical approach should be satisfied.
No inquiry into “divisibility” would be required. Here, for
example, the record makes it “obvious” and “clear” that the
non-matching alternative—fraud in the inducement—played
no role in Petitioner’s conviction. That should be the end of
the inquiry, as the BIA held. Yet Mathis requires us to hold
that the modified categorical approach is wholly
inapplicable because, in some theoretical way that bears no
relationship to the real world, Petitioner could have been
convicted of rape by fraud in the inducement. When we
apply the categorical approach, we are instructed that there
must be a “realistic probability, not a theoretical possibility,”
of a mismatch. Moncrieffe v. Holder, 569 U.S. 184, 191
(2013). That same principle should apply with equal force
when we apply the modified categorical approach.

The pragmatic methodology that I suggest is not new.
The Supreme Court hinted at this precise approach in
Descamps, 570 U.S. at 264 n.2. But, three years later, in
2016, the Court definitively rejected that interpretation in the
split decision in Mathis, 136 S. Ct. at 2256.

Six years hence, Mathis has, in my view, not aged well.
For example, even if the record suggests that a petitioner was
convicted of a matching alternative, we have certified the
elements/means question to state supreme courts—
extending the burden of the categorical inquiry to state
courts and causing even more delay in the federal
proceedings. See, e.g., Romero-Millan v. Barr, 958 F.3d
844, 848 n.1 (9th Cir. 2020) (order) (certifying whether
Arizona’s drug laws are divisible because Arizona’s list of
contraband, but not the corresponding federal list, includes
30 VALDEZ AMADOR V. GARLAND

“benzylfentanyl and thenylfentanyl”); cf. Mathis, 136 S. Ct.
at 2259 (Breyer, J., dissenting, joined by Ginsburg, J.)
(predicting that Mathis would “unnecessarily complicate”
the law by requiring an inquiry that is “not practical”). We
have gone so far as to require a district court to undertake a
scientific factual inquiry into whether a theoretically
possible version of a drug exists, even though by posing the
question we know that the defendant did not possess that
theoretically imagined substance. See United States v.
Rodriguez-Gamboa, 946 F.3d 548 (9th Cir. 2018)
(remanding for the district court to test the government’s
“factual assertion that the geometric isomer of
methamphetamine does not exist”); cf. Mathis, 136 S. Ct.
at 2268 (Alito, J., dissenting) (predicting that Mathis will
require courts to answer “pointless abstract questions”). In
short, the Mathis-constrained version of the modified
categorical approach unnecessarily prolongs proceedings;
burdens federal courts, federal agencies, and state courts;
defers definitive resolution for defendants, petitioners, and
the public; and often produces absurd results that lack any
connection to what really occurred.

Petitioner’s abhorrent conduct in committing rape
should not be overlooked merely because California has
expanded its definition of “rape” to encompass conduct that
did not occur here. Yet, under Mathis, we must ignore the
record and conclude that Petitioner is statutorily eligible for
relief. In other contexts, the Supreme Court has reversed
itself when an earlier pronouncement has proven unwieldy.
See, e.g., Pearson v. Callahan, 555 U.S. 223, 227 (2009)
(unanimously overruling the holding of Saucier v. Katz,
533 U.S. 194 (2001), after only seven and a half years, for
many reasons that apply similarly to Mathis). I respectfully
encourage the Court to reconsider its decision in Mathis in
an appropriate case.