* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT TAYLOR, Plaintiff - Appellant,

v. UNITED STATES ATTORNEY GENERAL; UNITED STATES DEPARTMENT OF HOMELAND SECURITY, CITIZENSHIP AND IMMIGRATION SERVICES, Defendants - Appellees. No. 11-35751 D.C. No. 2:10-cv-02026-MJP

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, Chief District Judge, Presiding Argued and Submitted December 7, 2012 San Francisco, California Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges. Appellant Robert Taylor, a native and c itizen of Canada, appeals the district court’s dismissal with prejudice of his petition seeking review of the denial by the 

# FILED

JAN 22 2013 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS1 Taylor served on active duty in the United States Armed Forces during the Vietnam War era and was honorably discharged in 1975. An individual who “served honorably as a member of the Sel ected Reserve of the Ready Reserve or in active-duty status during a designated period of hostilities,” which includes the Vietnam War era, may apply for natu ralization by completing a Form N-400 application. See http://www.uscis.gov/files/form/n-400instr.pdf (last updated Mar. 22, 2012). 2 United States Citizenship and Immigration Services of his Form N-400 application for naturalization. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the merits of a district court’s naturalization decision under our “usual standard of review.” United States v. Hovsepian , 359 F.3d 1144, 1165 (9th Cir. 2004). Thus, findings of fact, including findings pertaining to good moral character, are reviewed for clear error, Diamond v. City of Taft , 215 F.3d 1052, 1055 (9th Cir. 2000); Yuen Jung v. Barber , 184 F.2d 491, 497 (9th Cir. 1950), and conclusions of law are reviewed de novo, Diamond , 215 F.3d at 1055. We vacate and remand for further proceedings. An applicant seeking naturalization mu st satisfy all eligibility requirements, which include demonstrating good moral character. 8 U.S.C. § 1427(e); see Santamaria-Ames v. INS , 104 F.3d 1127, 1129 (9th Cir. 1996) (discussing good moral character). A person who has beenconvicted of an aggravated felony, however, lacks good moral character. 8 U.S.C. § 1101(f)(8); 8 C.F.R. § 316.10(b)(1)(ii). The term “aggravated felony” includes “sexual abuse of a2The parties do not dispute that the cat egorical and modified approaches set forth in Taylor apply to Taylor’s Canadian sexual assault conviction. 3 minor,” 8 U.S.C. § 1101(a)(43)(A), and “applie s to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years,” id. § 1101(a)(43). In 1994, Canadian authorities charged Taylor with one count of sexual interference involving a “person under the ag e of fourteen years” in violation of Canadian Criminal Code (“CCC”) § 151 and one count of “sexual assault of another person” in violation of CCC § 271. Taylor pled not guilty to both counts. Following a bench trial, a Canadian court found Taylor guilty of sexual assault. The Canadian court conditionally stayed th e sexual interference charge, of which Taylor was not convicted. At sentencing, the Canadian court noted that Taylor’s victim was twelve years old at the time of the offense. We apply the categorical and modified approaches set forth in Taylor v. United States , 495 U.S. 575 (1990), to determine whether Taylor’s Canadian sexual assault conviction qualifies as an aggravated felony that precludes him from demonstrating good moral character and eligibility for naturalization. 2 CCC § 271 did not define “sexual assault.” Nevertheless, the Supreme Court of Canada has determined that “[s]exual assault is an a ssault . . . committed in circumstances of a4 sexual nature, such that the sexual inte grity of the victim is violated.” Chase v. R. , [1987] 2 S.C.R. 293 (Can.). A person commits an “assault” under CCC § 265 when, “without the consent of another person, he applies force intentionally to that other person, directly or indirectly.” Thus, the elements of sexual assault under CCC § 271, based upon CCC § 265 and Chase v. R , are: (1) direct or indirect intentional force; (2) of a sexual nature ; (3) to another person; and (4) without consent. Notably, the victim’s age is notrequired to prove se xual assault. Thus, under the categorical approach, we conc lude that CCC § 271 criminalizes conduct that does not satisfy the generic federal definition of “sexual abuse of a minor.” See Quintro-Salazar v. Keisler , 506 F.3d 688, 692 (9th Cir. 2007). Under the modified categorical appro ach, we may review the terms of a charging document, Cabantac v. Holder , 693 F.3d 825, 827 (9th Cir. 2012); United States v. Snyder , 643 F.3d 694, 698 (9th Cir. 2011), but cannot consider the allegation in other counts to ascertain wh ether one count qualifies as an aggravated felony, Aguilar-Turcios v. Holder , 691 F.3d 1025, 1037 (9th Cir. 2012). Additionally, we may not consider a statement concerning the victim’s age made by the Canadian court during sentencing. See United States v. Rodriguez-Guzman , 506 F.3d 738, 747 n.9 (9th Cir. 2007) (determining that a sentencing transcript, for purposes of the modified categorical appr oach, “is not judicially noticeable as a5 ‘record[] of the convicting court’” (quoting Shepard v. United States , 544 U.S. 13, 23 (2005))). The government contends that Taylor’s conviction qualifies as an aggravated felony under the modified categorical approach. This contention, however, is foreclosed by our recent decision in Sanchez-Avalos v. Holder , 693 F.3d 1011 (9th Cir. 2012). There, the alien, like Taylor , was charged with multiple counts of child molestation and child rape, but was convi cted only of a single count of sexual battery for which the juvenile status of the victim was not an element of the offense. See id. at 1013-16. Unlike in the present case, the charging document in Sanchez-Avalos specified the juvenile age of the victim in the count of conviction. We held that the conviction did not cons titute the aggravated felony of “sexual abuse of a minor” because th e age of the victim was not a fact that the prosecution had to prove to establish guilt; therefor e, the victim’s age was not a fact upon which the conviction “necessarily rested.” Id. at 1016. As we recognized in Sanchez-Avalos , “[i]t may seem unfortunate that the law requires us to blind ourselves to pers uasive evidence” that Taylor’s victim was a minor. Id. at 1017. “This type of evidentiary limitation is, however, a characteristic feature of th e categorical approach and its modified categorical variant, which we are required to apply.” Id.3 We express no opinion regarding the merits of Taylor’s naturalization application, which the district court reviews de novo, 8 U.S.C. § 1421(c), and whether Taylor demonstrates good moral character under 8 C.F.R. § 316.10(a)(2).

4 Appellees’ reliance upon Berenyi v. District Director, INS , 385 U.S. 630 (1967), for the proposition that an applicant must prove good moral character by clear and convincing evidence is misplaced. Berenyiaddressed the burden of proof applicable to the government when it seeks to divest citizenship from an individual. Id. at 636. The BerenyiCourt acknowledged that an alien must demonstrate eligibility for citizenship but did not impose upon aliens a clear and convincing evidence standard in order to meet their burden. See id. at 636-37. 6 Applying the modified categorical appr oach, we hold that Taylor’s Canadian conviction for sexual assault of anothe r person in violation of CCC § 271 does not qualify as an aggravated felony. The district court, therefore, committed reversible error by relying upon the allegation of sexual interference involving a “person under the age of fourteen years” set forth in the CCC § 151 count, of which Taylor was not convicted, to conclude that Ta ylor’s Canadian sexual assault conviction qualifies as the aggravated felony of “se xual abuse of a minor” that renders him ineligible for naturalization. Accordi ngly, we vacate the judgment and remand to the district court for further proceedi ngs in accordance with 8 U.S.C. § 1421(c). 3 Finally, we reject Appellees’ contenti on that naturalization applicants must demonstrate good moral character by clear and convincing evidence. 4 Pursuant to 8 C.F.R. § 316.2(b), an applicant must establish “by a preponderance of the5 8 C.F.R. § 316.2(b) was amended in 1993 to “incorporate the specific standard of proof upon an applicant for naturalization as established by judicial precedent . . . .” 58 Fed. Reg. 49,905, 49,909 (Sept. 24, 1993). 7 evidence that he . . . meets all of the requirements for naturalization .” 5 8 C.F.R. § 316.2(b) (emphasis added). Thus, Tayl or bears the burden of demonstrating good moral character, one such requirement for naturalization, 8 U.S.C. § 1427(e), by a preponderance of the evidence. See Hovsepian , 359 F.3d at 1168. VACATED AND REMANDED. Each party shall bear its own costs on appeal.