United States v. Martinez

A defendant is not removable based on an aggravated felony if the defendant has been convicted of a child molestation offense that does not satisfy the generic elements of sexual abuse of a minor; nor can a court apply the modified categorical approach when a statute is indivisible and missing elements of the generic definition of sexual abuse of a minor.

In 2001, Francisco Salgado Martinez, a lawful permanent resident, pled guilty to third-degree child molestation in Washington State. Following his conviction, Martinez was served with a notice to appear before an Immigration Judge because Martinez pled guilty to an aggravated felony that concerned the sexual abuse of a minor. The Immigration Judge subsequently ordered Martinez’s removal from the United States. Martinez was later indicted in 2011 for being found in the United States after his ordered removal. Martinez filed a motion to dismiss, arguing that his due process rights had been violated because his conviction of third-degree child molestation was not an aggravated felony. Martinez also argued that his offense was broader than the generic offense of sexual abuse of a minor because it prohibited sexual contact made through clothing. The district court denied Martinez’s motion, which Martinez appealed. The Ninth Circuit held that Washington’s third-degree child molestation statute did not meet the categorical definition of an aggravated felony due to missing elements, namely the elements of abuse and sexual act. The panel was not able to apply the modified categorical approach because the Washington statute was missing the required elements, and the existing elements in the statute are indivisible. As a result, the panel held that Martinez was not removable for committing an aggravated felony. REVERSED and REMANDED.