Chavez-Solis v. Lynch

When a convicting statute is categorically broader than the federal statute, and there is a realistic probability that the convicting statute would be applied to conduct not in the federal statute, the conduct is not an aggregated felony.

Oscar Chavez-Solis is a native citizen of Mexico, admitted as a U.S. citizen in 1999. In 2011, he pleaded nolo contendere to possessing child pornography in violation of the California Penal Code. The Department of Homeland Security then placed Chavez-Solis in removal proceedings for being an alien convicted of an aggravating felony. The Immigration Judge found Chavez-Solis conviction was an aggravated felony, which he appealed to the Board of Immigration. The Board of Immigration agreed with the Immigration Judge, which led Chavez-Solis to file a timely appeal which was granted. On appeal, the Ninth Circuit whether his conviction is considered an aggravated felony. The panel used a categorical approach to compare the California statute of conviction with the definition of aggravated felony found in 8 U.S.C. § 1101(a)(43)(I). The panel found that both statutes required a defendant to have (1) knowing possession that the pornography includes a minor, (2) possession or control child pornography, and (3) matter actually depicts a minor, and (4) matter depicts sexual conduct. However, the panel concluded that because the state statute is categorically more broad than the federal statute, Chavez-Solis’ conviction cannot be considered an aggravated felony. GRANT and REMAND.