CA9 on Descamps: Espinoza-Gonzalez v. Holder (Unpub.) - OIL Argues Descamps Inapplicable

CA9 on Descamps: Espinoza-Gonzalez v. Holder (Unpub.) - OIL Argues Descamps Inapplicable

"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. ... 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). ... We GRANT the Petition for Review and REMAND for further proceedings consistent with this disposition. GRANTED and REMANDED." - Espinoza-Gonzales v. Holder, July 24, 2013 (unpub.) 

[Hats off to Benjamin Wiesinger.  Plus, note these OILy monkeyshines from the PACER docket: "On June 21, 2013, the Court ordered simultaneous letter briefs from the parties on the impact of Descamps v. United States, 570 U.S. ___, No. 11-9540, 2013 WL 3064407 (U.S. June 20, 2013), on this case. The government has responded with a motion to remand to the Board of Immigration Appeals rather than with a letter brief on the impact of Descamps. The parties are again directed to file simultaneous letter briefs addressing the impact of Descamps on this case. The briefs shall not exceed ten (10) pages in length, and shall be filed on or before ten (10) days from the filing of this order.]