Argued and Submitted July 17, 2003 — San Francisco, California.
REINHARDT, Circuit Judge:
Pallares-Galan appeals from a judgment of conviction following a conditional plea of guilty to one count of unlawful reentry of a deported alien, a violation of 8 U.S.C. § 1326. We are required to decide whether a California Annoying or Molesting a Child Under 18 misdemeanor conviction, Cal. Pen.Code § 647.6(a), constitutes an aggravated felony conviction, specifically, "sexual abuse of a minor," 8 U.S.C. § 1101(a)(43)(A), for purposes of deportation law, see 8 U.S.C. § 1227(a)(2)(A)(iii). We hold that it does not, and consequently, that Pallares was eligible for discretionary relief from deportation in the form of cancellation of removal (8 U.S.C. § 1229b). Because the Immigration Judge erroneously advised Pallares that he was not eligible, and because Pallares' waiver of his right to appeal the removal order was not "considered and intelligent" for that and other reasons, we conclude that his claim is not barred by the exhaustion requirement of 8 U.S.C. § 1326(d)(1), and further, that the underlying deportation order was procedurally defective. We REVERSE and REMAND with directions to the district court to consider whether Pallares suffered prejudice as a result, and, accordingly, whether the indictment should be dismissed.
Mexican national Jose Alfredo Pallares-Galan became a Lawful Permanent Resident on December 1, 1989. In January 1997, he pled no contest in the Municipal Court to the charge of Inflicting Corporal Injury Upon a Spouse, a misdemeanor violation
On November 3, 1999, the INS served Pallares with a Notice To Appear alleging that he was subject to removal from the United States due to the 1997 Corporal Injury misdemeanor conviction, which was stated as the sole ground for removal under 8 U.S.C. § 1227(a)(2)(E)(i). At the December 1999 hearing, the Immigration Judge ("IJ") found that the charge of removal was sustained and informed Pallares that he might be eligible for discretionary relief from deportation in the form of cancellation of removal (8 U.S.C. § 1229b).
On December 27, 1999, the government served Pallares with Additional Charges of Inadmissibility/Deportability based on the 1999 Annoy/Molest conviction. Subsequently, on January 5, 2000, the government moved to pretermit Pallares' application for cancellation of removal. The final removal hearing occurred two days later, on January 7, 2000. At that hearing, the IJ questioned Pallares about the 1999 conviction for Annoying or Molesting a Child Under 18, and Pallares responded:
Thereafter, the IJ asked whether he had nevertheless pled guilty. Pallares replied:
The IJ then proceeded to declare that the Annoy/Molest misdemeanor conviction qualified as an "aggravated felony" for deportation purposes:
Finally, after completing her statement of decision, the judge engaged Pallares in a tangled exchange regarding his right to appeal:
(emphasis added). Pursuant to this exchange, the IJ ordered Pallares removed, indicating in the order that he had "waived" his right to appeal.
Sometime after January 7, 2000, Pallares re-entered the United States. In July 2001, he was arrested by the Las Vegas Police Department, and the following month he was indicted under 8 U.S.C. § 1326 for unlawful re-entry into the United States and placed in federal custody.
Pallares filed a Motion to Dismiss Based on a Prior Unlawful Deportation in the District Court for the District of Nevada, arguing that a due process defect in the underlying deportation proceeding foreclosed proper judicial review of his case, and therefore, that the deportation order could not be used as an element of his illegal reentry offense. At a February 2002 hearing on the motion to dismiss, the district court expressed concern about whether the Annoy/Molest misdemeanor conviction could properly be characterized as an aggravated felony, "sexual abuse of a minor" under § 1101(a)(43)(A), identifying this question as the issue upon which Pallares' collateral attack would rise or fall.
In his supplemental brief, Pallares advanced an alternative argument to support his claim that the state Annoy/Molest conviction did not count as an aggravated felony for deportation purposes. Asserting that the district court need not reach the Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), categorical analysis issue, Pallares instead argued that the plain language of the federal statutory provision — and particularly the word "felony" — was dispositive of the question presented.
In June 2002, Pallares entered a conditional plea of guilty to the § 1326 charge, preserving for appeal the district court's denial of his Motion to Dismiss. He was sentenced to 24 months' incarceration to be followed by two years of supervised release. Pallares now appeals the denial of his motion.
II. STANDARD OF REVIEW
We review a denial of a motion to dismiss an 8 U.S.C. § 1326 indictment de novo when the motion is based upon an alleged due process defect in the underlying deportation proceeding. U.S. v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001).
Here, however, the government argues that the standard of review should be plain error because Pallares did not urge in the district court the particular argument presented on appeal — and, in fact, expressly advised the district judge that it was not necessary to reach it: namely, the argument that offenses under the state Annoy/Molest statute do not qualify as aggravated felonies under the
Moreover, plain error review typically applies where an issue raised on appeal was not "brought to the [district] court's attention." See Fed. R.Crim. Proc. 52(b). Here, not only did Pallares present the same underlying claim raised before this court in the briefs filed below, but he even urged in open court the very Taylor argument he now advances on appeal in support of his claim; in fact, Pallares initially told the district court that he planned to advance the Taylor argument in his supplemental brief, although he subsequently opted to rely on a different theory that, if successful, would have avoided the necessity to reach that argument. Accordingly, we do not review Pallares' claim under the plain error standard; instead, we apply the customary de novo standard.
Because the underlying removal order serves as a predicate element of an illegal reentry offense under § 1326, a defendant charged with that offense may collaterally attack the removal order under the due process clause. U.S. v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Under the controlling statutory provisions, in order to sustain his collateral attack, a defendant must show first, that he "exhausted any administrative remedies that may have been available to seek relief against the order;" second, that "the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review;" and third, that "the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). An underlying removal order is "fundamentally unfair" if (1) an alien's "due process rights were violated by defects in the underlying deportation proceeding," and (2) "he suffered prejudice as a result of the defects." U.S. v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir.2000) (citation omitted).
A. Exhaustion of Administrative Remedies & Deprivation of Judicial Review
1. Waiver of the Right of Appeal Must Be "Considered and Intelligent"
The government argues that Pallares is barred from collaterally attacking the lawfulness of his underlying deportation because he failed to exhaust his administrative and judicial remedies. Pallares responds that he did not have a meaningful opportunity to exhaust them.
Here, Pallares' waiver of his right to appeal his removal order was not "considered and intelligent" because the IJ erroneously informed him that he was not eligible for relief from deportation on account of his 1999 state misdemeanor Annoy/Molest conviction, Cal.Penal Code § 647.6(a). Where "`the record contains an inference that the petitioner is eligible for relief from deportation,'" but the IJ fails to "`advise the alien of this possibility and give him the opportunity to develop the issue,'" we do not consider an alien's waiver of his right to appeal his deportation order to be "`considered and intelligent.'" Muro-Inclan, 249 F.3d at 1182 (citation omitted). For example, in Leon-Paz, after the IJ erroneously advised the alien that he was not eligible for relief under § 212(c) of the former INA, the alien expressly declined to appeal the IJ's order of removal. 340 F.3d at 1004, 1007. We held that the alien's due process rights had nevertheless been violated because of the IJ's erroneous advice. See id. at 1007. Specifically, INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which was issued after the IJ's Leon-Paz ruling, adopted a rule which made it clear that Leon Paz had, indeed, been eligible for relief at the time of his 1997 hearing. Id. at 1006. We then decided that the IJ's pre-St. Cyr advice to the contrary had "deprived petitioner of judicial review in violation of due process," and that petitioner's waiver of his right to appeal the IJ's decision had not been "considered and intelligent." Id. at 1004-07.
Similarly, here, Pallares was eligible for relief from deportation under the successor provision to § 212(c), as we discuss more fully infra at Part A(2), but the IJ erroneously advised him to the contrary. She believed, incorrectly, that the conviction under the state Annoy/Molest misdemeanor statute, Cal.Penal Code § 647.6(a), constituted a conviction of the aggravated felony of "sexual abuse of a minor," 8 U.S.C. § 1101(a)(43)(A), for purposes of deportation law. Because the IJ erred when she told Pallares that no relief was available, Pallares' failure to exhaust his administrative remedies cannot bar collateral review of his deportation proceeding. See Muro-Inclan, 249 F.3d at 1183-84. For the same reason, Pallares' waiver of his right to appeal was not "considered and intelligent" and "deprived [him] of his right to judicial review" under § 1326(d)(2). See Leon-Paz, 340 F.3d at 1005 (citation omitted).
Moreover, there is an additional, independent reason why Pallares is excused from meeting the exhaustion requirement of § 1326(d)(1): the colloquy between the IJ and Pallares at the time an
In several cases, courts have concluded that an IJ's failure to explore the issue adequately with the petitioner precluded a purported waiver from being "considered and intelligent." In Mendoza-Lopez, for example, the Supreme Court determined that a waiver was not "considered and intelligent" where aliens were not represented by legal counsel at the hearing and were not adequately advised of the consequences of the choices they were forced to make:
781 F.2d 111, 113 (8th Cir.1985), aff'd by, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ("The IJ permitted waivers of the right to appeal that were not the result of considered judgments by the respondents, and failed to advise respondents properly of their eligibility to apply for suspension of deportation.").
Similarly, in U.S. v. Lopez-Vasquez, 1 F.3d 751, 753 (9th Cir.1993)(en banc), this court found that an alien's waiver cannot be "considered and intelligent" even though the IJ thoroughly explained the right to appeal at a group hearing because, in addressing the group as a whole through an interpreter, the IJ failed to solicit separate responses from each individual facing removal. The Court made it plain that the fact that petitioner "knew what an appeal was" was insufficient. It also noted that the IJ's actions may have conveyed the message that the petitions would not benefit from an appeal. Id. at 754.
Here, the government has failed to provide "clear and convincing" evidence to establish Pallares' "intentional relinquishment" of the right to appeal. Like the respondent in Mendoza-Lopez, Pallares was unrepresented by counsel; he also relied on an interpreter to understand the proceedings. In this context, the IJ's brief explanation regarding Pallares' right to appeal fell far short of the detailed description offered in Lopez-Vasquez (which was found nevertheless to be insufficient in light of the circumstances).
Even more important, the exchange raises some of the same concerns that prompted this Court, in Lopez-Vasquez, to determine that, despite the IJ's specific,
In sum, for both of the reasons we have discussed, Pallares' waiver of his right to appeal the underlying removal order was procedurally defective for purposes of § 1326(d)(1)'s exhaustion requirement. For the same reasons, we hold that Pallares was deprived of a meaningful opportunity for judicial review. See § 1326(d)(2).
2. The State Annoy/Molest Misdemeanor as an Aggravated Felony
The government contends, however, that the IJ was not obligated to advise Pallares of his eligibility for relief from deportation because she correctly characterized the Annoy/Molest conviction, Cal.Penal Code § 647.6(a), as an aggravated felony of "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A), and therefore, properly determined that Pallares was ineligible for cancellation of removal.
A deportable alien is eligible for discretionary relief in the form of cancellation of removal if he (1) has been an alien lawfully admitted for permanent residence for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. See INA § 240A(a); 8 U.S.C. § 1229b(a). Because Pallares satisfies the first two grounds for eligibility, the issue turns on whether his 1999 state Annoy/Molest misdemeanor conviction qualifies as an "aggravated felony" for federal deportation purposes. If it does, he was ineligible for discretionary relief from removal, and the IJ did not err in advising him accordingly at the hearing. If it does not, however, he was eligible for cancellation of removal, and the determination that Cal.Penal Code § 647.6(a) constitutes an aggravated felony of "sexual
In making a determination as to whether a prior conviction qualifies as an aggravated felony for federal deportation purposes, we employ the analytical model set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See U.S. v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002). Under Taylor's "categorical" approach, "the issue is not whether [the] actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by [the state statute] constitutes an aggravated felony," and we "look only to the fact of conviction and the statutory definition of the prior offense" to make this determination. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. If we determine that the statute which the defendant was found to have violated is broader in scope than the federal provision — that the state statute proscribes not only conduct that would constitute an "aggravated felony" but also conduct that would not — then the state conviction may not be used, except under a "modified categorical" approach. Under the modified categorical approach, the conviction may be used only if the record contains "`documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction.'" U.S. v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc) (citation omitted). Moreover, when applying the modified categorical approach, we are limited to consulting a narrow and carefully specified set of documents in order to determine whether the particular conviction qualifies. See U.S. v. Franklin, 235 F.3d 1165, 1170 n. 5 (9th Cir.2000) (listing the documentation that may be reviewed). The burden of proving that the specific conduct of which the defendant was convicted constitutes an "aggravated felony" rests squarely with the government. Id. at 1172. In cases in which either the documents introduced by the government are not within the specified group or the documents introduced do not establish on their face that the prior conviction was for criminal conduct that falls within the federal prohibition, the government has not met its burden and the conviction may not be used as a predicate offense for purposes of 8 U.S.C. § 1326. See id.
Section 1101 defines the term "aggravated felony," as used in the provision rendering aliens convicted of such crimes ineligible for cancellation of removal, see 8 U.S.C. § 1229b(a)(3), as including "sexual abuse of a minor." See 8 U.S.C. § 1101(a)(43)(A). It is this offense within which, according to the government, the conduct proscribed by California's Annoy/Molest misdemeanor conviction falls. Section 647.6(a) of the California Penal Code, the misdemeanor statute to which Pallares pled guilty, reads, in pertinent part:
Following Taylor, we begin by considering whether the conduct prohibited by California's § 647.6(A) falls within the meaning of the term "sexual abuse of a minor" as used in § 1101(a)(43)(A). We do so, bearing in mind that, under the categorical approach, in order for a violation of the
We now consider the range of conduct proscribed by the state Annoy/Molest misdemeanor statute. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143. We should note first that California has a felony statute that prohibits lewd and lascivious acts against minors, see Cal. Pen.Code § 288(a),
"The word `molests'" in the misdemeanor statute, section 647.6(a) ... "is, in general, a synonym for `annoy'," People v. Pallares, 246 P.2d 173, 112 Cal.App.2d Supp. 895, 901 (1952), and as the California Supreme Court observed in Lopez:
19 Cal.4th at 289-90, 79 Cal.Rptr.2d 195, 965 P.2d 713 (emphasis added). Under the ordinary meaning of its statutory terms, as well as under the California Supreme Court's understanding of its provisions,
As a practical matter, individuals are convicted under the Annoy/Molest statute of acts that do not constitute "sexual abuse" under § 1101(a)(43)(A). For example, as the district court noted, see supra note 3, "I get from my own experience with the young minor charges ... [that] sometimes the charges [under such statutes] result from someone, for example, urinating in a public place and a child happens to see him." Similarly, individuals have been convicted of misdemeanors under § 647.6(a) for acts that include offering minor females a ride home, driving in the opposite direction, and refusing to let them out of the car until they escaped, In re Sheridan, 230 Cal.App.2d 365, 40 Cal.Rptr. 894 (Cal.Ct.App.1964), and repeatedly driving past a young girl, looking at her, and making hand and facial gestures at her, People v. Thompson, 206 Cal.App.3d 459, 253 Cal.Rptr. 564 (Cal.Ct. App.1988). In the latter case, the court concluded that the elements of the misdemeanor statute had been satisfied because, "although the conduct was not particularly lewd," Lopez, 19 Cal.4th at 292, 79 Cal.Rptr.2d 195, 965 P.2d 713 (discussing Thompson), the "behavior would place a normal person in a state of being unhesitatingly irritated, if not also fearful." Thompson, 206 Cal.App.3d at 467, 253 Cal.Rptr. 564. Likewise, in People v. LaFontaine, a case in which an individual offered a thirteen year old boy a ride home and unsuccessfully solicited a sexual act from him while the two were in the vehicle, the court upheld the defendant's conviction under § 647.6(a), but not under § 288(a). 79 Cal.App.3d 176, 144 Cal.Rptr. 729 (1978), overruled on other grounds by Lopez, 19 Cal.4th at 293, 79 Cal.Rptr.2d 195, 965 P.2d 713. The California court reasoned that, under the misdemeanor statute, no actual contact need be shown in order to establish the crime of annoying or molesting a person under the age of 18. It then concluded by holding: "Words alone may constitute the annoyance or molestation proscribed." Id. at 185, 79 Cal.Rptr.2d 195, 965 P.2d 713 (emphasis added).
In sum, both the ordinary meaning of the statutory terms and the cases in which California courts have upheld convictions under § 647(a) demonstrate that the state Annoy/Molest statute covers conduct that does not qualify under the provision listing "sexual abuse" as an aggravated felony, as well as conduct that does. Indeed, as LaFontaine illustrates, Section 647.6(a) would cover mere solicitation of a sexual act, if objectively annoying; however, solicitation, by a young male, for example, of a young female approaching the age of 18 years may in some circumstances be objectively irritating or annoying, but such conduct does not, standing alone, rise to the level of "sexual abuse." Nor would such conduct constitute sexual abuse were it a young woman who solicited a 17 year-old female to engage in sexual relations, regardless of how irritating or annoying the solicitation or solicitations might be objectively. Moreover, we reject the government's argument that the requirement that the defendant be motivated by a desire for sexual gratification justifies classifying all offenses covered by the state Annoy/Molest statute as "sexual abuse." "Abuse" requires more than improper motivation;
In sum, the first inquiry we make in determining whether the Taylor categorical approach applies is whether the conduct covered by the California statute falls within the commonplace meaning of "sexual abuse." See Baron-Medina, 187 F.3d at 1147 ("The conduct reached by Section 288(a) [the felony sexual statute] indisputably falls within the common, everyday meanings of the words `sexual' and `minor'," as well as "abuse.") (emphasis added). As the California Supreme Court recognized in Lopez, the California misdemeanor statute is intended to outlaw, inter alia, "objectively annoying conduct." 19 Cal.4th at 292, 79 Cal.Rptr.2d 195, 965 P.2d 713. Such conduct may involve neither harm or injury to a minor, nor the touching of or by a minor, and does not constitute "sexual abuse of a minor" under the Taylor categorical test approach, regardless of a defendant's lewd intent.
Because we conclude that § 647.6(a) reaches not only conduct that
We conclude that the government has failed to meet its burden and, accordingly, that Pallares' Annoy/Molest conviction does not qualify as "sexual abuse of a minor" within the meaning of the federal provision. Because the IJ improperly characterized Pallares' California conviction as the aggravated felony of "sexual abuse of a minor," and, as a result, erroneously informed him that he was ineligible to receive discretionary relief, Pallares' waiver of his right to appeal was defective and the underlying deportation hearing deprived him of a meaningful opportunity for judicial review.
B. "Fundamentally Unfair" and "Prejudice"
Notwithstanding the serious defects in Pallares' deportation proceeding, we may determine that the removal order was "fundamentally unfair" under § 1326(d)(3) and dismiss the indictment only if Pallares can show that he suffered prejudice as a result. See Leon-Paz, 340 F.3d at 1007. To prove prejudice, Pallares need not show that he actually would have been granted relief; rather, he must show only that he had a "plausible" basis for seeking relief from deportation. Arrieta,
It appears to us that it is "plausible" that an IJ might have so concluded. Although there are undeniably negative equities stemming from Pallares' two misdemeanor convictions, his favorable equities are substantial. See, e.g., Georgiu v. INS, 90 F.3d 374 (9th Cir.1996) (balancing the positive and negative equities to evaluate the plausibility of petitioner's claim for discretionary relief from deportation under Section 212(c) of the former INA). For example, Pallares' earlier application for cancellation of removal reveals that, at the time of his deportation in 2000, he had lived in the United States without departing for 24 years—more that half his life. See Pablo v. INS, 72 F.3d 110, 113 (9th Cir.1995) (listing "residence of long duration in this country" as a factor to be considered in determining whether to grant discretionary relief). Throughout most of this time, he had an excellent work history: he was steadily employed, paid taxes, and was never on public assistance. Id. (listing "history of employment" and "evidence of value and service to the community" as positive factors to be considered). Further, he is married to a legal permanent resident who has also been gainfully employed since their union in 1989 and has never received public assistance, id., and who supports his desire to stay here. See id. (listing "family ties" in the U.S. as a positive factor to be considered). The presentence report further reveals that, after his deportation in 2000, Pallares illegally reentered the country in order to be reunited with his wife and his two children, all of whom he helps support. See id. The couple rents a house in Glendale, California, see id. (listing "the existence of ... property ties" a factor to be considered), where Pallares resided with his immediate family until the time of his detention. Although Pallares has siblings in Mexico, his parents are no longer alive. See id.
In short, it appears from the record that there are significant positive equities that weigh in favor of Pallares' claim for discretionary relief from deportation. Nevertheless, the district court did not reach the issue of prejudice, and we prefer that it consider it initially. See Leon-Paz, 340 F.3d at 1007. Accordingly, we remand for the district court to determine whether Pallares has shown that it is plausible that the positive equities in his favor, when cumulatively considered, could outweigh the negative ones associated with his criminal conduct.
We hold that, under the Taylor categorical approach, a violation of the California Annoy/Molest misdemeanor statute, Cal. Pen.Code § 647.6(a), does not constitute the commission of the aggravated felony of "sexual abuse of a minor," and that the judicial records relating to Pallares' misdemeanor conviction that we are allowed to consider do not establish that the particular conduct of which he was convicted falls within that term. Consequently, Pallares was eligible for the discretionary relief of cancellation of removal under 8 U.S.C. § 1229b(a). Because the Immigration Judge erroneously advised him that he was not eligible for such relief, and because the IJ otherwise failed to afford him a fair chance to decide whether to appeal his removal order, Pallares' waiver of his right to appeal was not "considered and intelligent." Accordingly, we hold that Pallares' collateral attack on the underlying order of deportation is not barred by the exhaustion requirement of § 1326(d), and that he was deprived of a meaningful
REVERSED and REMANDED.
We subsequently determined that, contrary to Pallares' argument, state misdemeanor offenses may constitute "aggravated felonies." See, e.g., U.S. v. Corona-Sanchez, 291 F.3d 1201, 1210 (9th Cir.2002) (en banc).
The district court agreed that the available documentation failed to show that Pallares pled guilty to acts which satisfy the elements of "sexual abuse":