In United States v. Gonzalez-Reyes, --- F.4th ---, No. 23-3532 (9th Cir. 2026), a divided panel affirmed the district court’s denial of Higinio Gonzalez-Reyes’ motion to dismiss a criminal charge under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States.
This is a categorical approach case out of the SDCA.
Here is how the majority started the opinion:
Angry that his girlfriend might end their relationship, Higinio Gonzalez-Reyes strangled and raped her in view of her two young children. A jury convicted him of rape, false imprisonment by menace or violence, and domestic battery with corporal injury under the California Penal Code. After serving his prison term, he was removed to Mexico under an immigration statutory provision that allows expedited removals of aggravated felons unlawfully residing in the United States. Within three days of his removal, Gonzales-Reyes made his way back to the United States but was arrested near the border. He was criminally charged under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States.Gonzalez-Reyes now collaterally challenges his criminal case, contending that his earlier expedited removal was invalid. He claims that his state conviction for rape—which was the predicate act for his removal—is not an aggravated felony under the federal immigration statute. And because he was allegedly wrongfully removed, Gonzales-Reyes argues that he cannot be charged with criminal reentry. He is wrong. He was rightly removed from our country: California’s statutory definition of rape is a categorical match with the generic federal definition of rape, and thus his state conviction qualifies as an aggravated felony.
The majority continued:
We hold that California Penal Code § 261(a)(2)—which appears to recognize rape perpetrated through threats of nonphysical force—is a categorical match with the generic federal definition of rape. And that means Gonzales-Reyes’ state rape conviction is a valid predicate offense to qualify him as an aggravated felon under federal law.By 1996, the definition of rape had become broader across multiple jurisdictions to encompass acts committed through nonphysical force or threats of non-physical coercion.
The dissent countered:
To be sure, the facts underlying Gonzalez-Reyes’ conviction under Cal. Penal Code § 261(a)(2) are deplorable. Nonetheless, Cal. Penal Code § 261(a)(2) is not a categorical match to its federal analogue, rendering Gonzalez-Reyes’ predicate removal order “fundamentally unfair” under Section 1326(d)(3). Gonzalez-Reyes also satisfies § 1326(d)(1) and (d)(2)’s procedural requirements. Accordingly, I would reverse the district court’s denial of Gonzalez-Reyes’ motion to dismiss his indictment and respectfully dissent.In sum, the majority erred in holding that the generic federal definition of rape in 8 U.S.C. § 1101(a)(43)(A) includes rape by non-physical threats and that Gonzalez-Reyes’ conviction under Cal. Penal Code § 261(a)(2) is a categorical match. 6 As a result, Gonzalez-Reyes was removed on illegitimate grounds, which is enough to demonstrate prejudice—and thus, fundamental unfairness— under Section 1326(d)(3).
