Parrilla v. Gonzales, 03-74010.

Citation414 F.3d 1038
Decision Date11 July 2005
Docket NumberNo. 03-74010.,03-74010.
PartiesIreneo P. PARRILLA, Petitioner, v. Alberto R. GONZALES<SMALL><SUP>*</SUP></SMALL>, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Antonio Salazar, Robert H. Chavez, Adolfo Ojeda-Casimiro, Salazar Law Office, Seattle, WA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, U.S. Department of Justice, M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, Bryan S. Beier, Trial Attorney, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A73-159-170.

Before FERDINAND F. FERNANDEZ, A. WALLACE TASHIMA, and RONALD M. GOULD, Circuit Judges.

Opinion by Judge Gould; Partial Concurrence and Partial Dissent by Judge Fernandez.

GOULD, Circuit Judge.

Ireneo Parrilla petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his application for cancellation of removal. The BIA determined that Parrilla was ineligible for cancellation pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because his conviction for communicating with a minor for immoral purposes under Washington Revised Code section 9.68A.090 was an aggravated felony that met the definition of "sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). Although we hold that section 9.68A.090 did not categorically proscribe "sexual abuse of a minor," the government provided an information, a guilty plea and a Certification for Determination of Probable Cause that allow us to conclude, under the modified categorical approach, that Parrilla committed an offense rendering him ineligible for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir.2005), and we deny the petition for review.

I

Ireneo Parrilla, a citizen of the Philippines, entered the United States on an H-1A non-immigrant healthcare worker visa in 1994. He adjusted his status to that of a lawful permanent resident in 1995.

On January 17, 2001, Parrilla was arrested and charged with Child Molestation in the First Degree in violation of Washington Revised Code section 9A.44.083. The information filed with respect to this charge incorporated a Certification for Determination of Probable Cause (hereinafter CDPC). The CDPC described the December 25, 2000 molestation of a seven-year-old girl and stated that Parrilla "repeatedly reached inside [the victim's] dress and touched her between her legs where she goes to the bathroom on top of her underwear." It also specified that the victim's mother had witnessed part of the molestation, that Parrilla had been intoxicated at the time of the assault, and that Parrilla had apologized for his conduct.

The record indicates that Parrilla and the prosecution reached a plea agreement. The prosecution withdrew the original information and instead filed a First Amended Information that stated:

I, Norm Maleng, Prosecuting Attorney for King County in the name and by the authority of the state of Washington, by this Amended Information do accuse the defendant(s) of the crime of communication with a minor for immoral purposes.

That the defendant, Ireneo Parilla [sic], in King County, Washington, (on or about) the 25th day of December, 2000, did communicate with [the victim], a child under the age of 18 years, for immoral purpose of a sexual nature, [c]ontrary to RCW 9.68A.090, and against the peace and dignity of the state of Washington.

Parrilla then pled guilty. His written guilty plea stated in part, "I understand the Court will review the certification for determination of probable cause in determining if there is a factual basis for this plea and for sentencing." Based on his guilty plea, Parrilla was convicted of communicating with a minor for immoral purposes in violation of Washington Revised Code section 9.68A.090 on April 12, 2002.

The Department of Homeland Security then initiated deportation proceedings. The Immigration Judge found that section 9.68A.090 did not categorically prohibit "sexual abuse of a minor," but that the First Amended Information, the CDPC, and the guilty plea together established that Parrilla was guilty of an aggravated felony involving "sexual abuse of a minor" under the modified categorical approach. The BIA affirmed in a reasoned decision, holding that:

An offense may qualify as "sexual abuse of a minor" under section [1101(a)(43)(A)] of the Act if it involves "the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children."

The BIA reasoned that the conviction under section 9.68A.090 rendered Parrilla ineligible for cancellation of removal under both the categorical and the modified categorical approaches. Parrilla petitions for review of this decision.

II

In general, an alien is barred from cancellation of removal if he or she has been convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). One type of aggravated felony is "sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A).

We review de novo whether an alien has been convicted of an aggravated felony, Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir.2004), but our review is subject to established principles of deference to administrative agencies, INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001). When interpreting a provision of the Immigration and Nationality Act (INA), we must defer to the BIA if the statute is silent or ambiguous with respect to the specific issue before the agency and the BIA's interpretation is "`based on a permissible construction of the statute.'" Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. 1439 (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We do not, however, defer to BIA interpretations of either state law, Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir.2003), or provisions of the federal criminal code that are referenced within, but not part of, the INA, Singh v. Ashcroft, 386 F.3d 1228, 1230-31 (9th Cir.2004).

In this case, 8 U.S.C. § 1101(a)(43)(A) does not define the term "sexual abuse of a minor" by reference to state law or to another portion of the U.S.Code; in fact, § 1101(a)(43)(A) does not define "sexual abuse of a minor" at all. Because the INA is silent on the meaning of "sexual abuse of a minor," we ask whether the definition provided by the BIA "`is based on a permissible construction of the statute.'" Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. 1439 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). The BIA opinion interpreted "sexual abuse of a minor" to mean any offense that "involves `the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.'" Because this language is not clearly contrary to the plain meaning of the statute, we defer to the BIA's interpretation. See id.

The definition the BIA employed in this case accords with our case law. In United States v. Pallares-Galan we held that a conviction for annoying or molesting a child under the age of eighteen was not "sexual abuse of a minor," even though the state courts had interpreted the statute to require that the perpetrator be motivated by an abnormal sexual interest in children. 359 F.3d 1088, 1100-02 (9th Cir.2004). In reaching our conclusion that the fact of conviction did not show "sexual abuse of a minor," we stated, "`[a]buse' requires more than improper motivation; it requires conduct that is abusive." Id. at 1101-02. Consistent with this principle, we have held that "sexual abuse of a minor" encompasses both lewdness with a child under the age of fourteen, Cedano-Viera, 324 F.3d at 1065-66, and a lewd or lascivious act including any part of the body of a child under the age of fourteen, United States v. Baron-Medina, 187 F.3d 1144, 1146-47 (9th Cir.1999).

In inquiring into whether an offense is an aggravated felony, of which "sexual abuse of a minor" is one statutorily designated type, we first consider the categorical approach. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, an offense meets the definition of "sexual abuse of a minor" only if any and all conduct proscribed by the criminal statute of conviction falls within that category. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). If the statute that led to the prior conviction does not categorically prohibit "sexual abuse of a minor," we next consider the modified categorical approach. Shepard v. United States, ___ U.S. ___, ___-___, 125 S.Ct. 1254, 1259-60, 161 L.Ed.2d 205 (2005). Under the modified categorical approach, we may consider a limited number of judicially noticeable documents to determine whether, although the statute of conviction is overinclusive, the defendant was in fact convicted of a crime that met the definition of "sexual abuse of a minor." Id.; Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1153 (9th Cir.2003).

A

We first consider whether Washington Revised Code section 9.68A.090 categorically covered conduct that is "sexual abuse of a minor" as the BIA has defined that term.1 Under the categorical approach, we may "look only to the fact of conviction and the statutory definition of the prior offense." Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Ruiz-Morales, 361 F.3d at 1221-22.

In 2002, Parrilla was convicted of violating Washington Revised Code section 9.68A.090, which, at that time, stated:

A...

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