Aguiar v. Gonzales, 04-2735.

• Decision Date: 16 February 2006
• Docket Number: No. 04-2735.,04-2735.
• Citation: 438 F.3d 86
• Parties: Pedro AGUIAR, Petitioner, v. Alberto R. GONZÁLES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

438 F.3d 86

Pedro AGUIAR, Petitioner, v. Alberto R. GONZÁLES, United States Attorney General, Respondent.

No. 04-2735.

United States Court of Appeals, First Circuit.

Heard December 9, 2005.

Decided February 16, 2006.

Randy Olen, for petitioner.

Anthony C. Payne, Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, and Ernesto H. Molina, Senior Litigation Counsel, were on brief, for respondent.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and HOWARD, Circuit Judge.

TORRUELLA, Circuit Judge.

Petitioner Pedro Aguiar asks us to review a decision of the Board of Immigration Appeals ("BIA") finding him removable for being an alien convicted of an aggravated felony. We affirm the decision of the BIA and dismiss the petition.

I.

Aguiar is a native and citizen of Portugal who was admitted to the United States in 1985 as a lawful permanent resident. Aguiar was eight years old at the time. On January 13, 1997, Aguiar was convicted in Rhode Island state court of four counts of third degree sexual assault.¹ See R.I. Gen. Laws § 11-37-6 (1997) ("Section 11-37-6").² He was sentenced to a two-year suspended term of imprisonment and two years of probation.

On November 20, 2003, the Department of Homeland Security ("DHS") issued a Notice to Appear charging Aguiar with being removable pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), for being an alien convicted of an aggravated felony. The INA defines "aggravated felony" as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). 18 U.S.C. § 16, in turn, provides that

The term "crime of violence" means—

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The offenses for which Aguiar was convicted did not have as an element the use, attempted use, or threatened use of force, and Section 16(a) is therefore inapplicable. In order for the offenses to be considered "crimes of violence," they must fall under Section 16(b).

On May 17, 2004, Aguiar appeared before an Immigration Judge. The Immigration Judge found that Aguiar's conviction of third degree sexual assault in Rhode Island constituted a "crime of violence" pursuant to Section 16(b), and therefore constituted an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F). The Immigration Judge ordered that Aguiar be removed to Portugal. Aguiar appealed to the BIA, which affirmed the Immigration Judge on November 29, 2004. The BIA began by citing our decision in United States v. Sacko, 247 F.3d 21 (1st Cir.2001) ("Sacko II"), where we found that an appellant's conviction under Section 11-37-6 constituted a "violent felony" under the Armed Career Criminal Act ("ACCA"). The ACCA defines "violent felony" as a crime that, among other things, "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). The BIA reasoned that, just as girls between the ages of fourteen and sixteen run the risk of physical injury during sexual intercourse with a man over eighteen, there is also a substantial risk that physical force may be used during such acts. The BIA affirmed the Immigration Judge on these grounds, and Aguiar timely appealed.

II.

Under INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), as amended by the Real ID Act of 2005,³ "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense" covered by INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). However, under INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), as amended by the Real ID Act, we are not precluded from review of "questions of law raised upon a petition of review filed with an appropriate court of appeals." The question of whether Aguiar's offense constitutes an "aggravated felony" is such a question of law, and therefore have jurisdiction to review it. The issue before us is whether third degree sexual assault under Section 11-37-6 is a "crime of violence" under Section 16(b) and therefore an "aggravated felony" under the INA. Our review is de novo. See United States v. Cordoza-Estrada, 385 F.3d 56, 57 (1st Cir. 2004). If we find that Aguiar's crime is an aggravated felony, then we must dismiss his petition for lack of jurisdiction.

As we noted above, the BIA based its decision on our opinion in Sacko II, where we found that a conviction under Section 11-37-6 constituted a "violent felony" for purposes of the ACCA. Under the ACCA, an offense constitutes a violent felony if it "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(emphasis added). The BIA appeared to equate this definition of "violent felony" with the definition of "crime of violence" in Section 16(b). However, Section 16(b) defines "crime of violence" as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force" will be used during the commission of the offense. 8 U.S.C. § 16(b). Aguiar argues that the two statutes present different standards and that just because an offense is a "violent felony" for ACCA purposes does not necessarily mean that it will be a "crime of violence" for Section 16(b) purposes. We agree. In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the Supreme Court addressed whether driving under the influence was a "crime of violence" for Section 16(b) purposes. In finding that it was not, the Court noted in a footnote that

§ 16(b) plainly does not encompass all offenses which create a "substantial risk" that injury will result from a person's conduct. The "substantial risk" in § 16(b) relates to the use of force, not to the possible effect of a person's conduct. Compare § 16(b) (requiring a "substantial risk that physical force against the person or property of another may be used"), with United States Sentencing Commission, Guidelines Manual § 4B1.2(a)(2) (Nov.2003) (in the context of a career-offender sentencing enhancement, defining "crime of violence" as meaning, inter alia, "conduct that presents a serious potential risk of physical injury to another").

Leocal, 543 U.S. at 10, 125 S.Ct. 377 n. 7. In sum, while an offense may create a risk of physical injury to another and therefore be a "violent felony" under the ACCA, it does not necessarily follow that the offense will involve a substantial risk of the use of physical force and therefore be a "crime of violence" under Section 16(b).

However, reviewing de novo, we believe that the BIA was correct in its conclusion that Aguiar's offense involved a substantial risk of physical force. When determining whether a particular crime is a "crime of violence" we generally follow what has been termed the "categorical approach," restricting our inquiry to the statutory definition of the offense without regard to the underlying facts. United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997).⁴ Under this approach, "only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant." Chery v. Ashcroft, 347 F.3d 404, 407 (2d Cir.2003) (internal quotation marks omitted). Given the terms of Section 11-37-6, we must therefore determine whether sexual penetration involving a person who is eighteen and a person one day shy of the age of sixteen involves a substantial risk of the use of physical force. We conclude that it does.

Section 11-37-6 explicitly provides that a child under the age of sixteen is unable to legally consent to the sexual conduct the statute prohibits.⁵ The government argues that, because a minor cannot legally consent to the sexual conduct and because of the presumed higher age and experience of the perpetrator, the statute clearly contemplates that a substantial risk of the use of physical force exists in every violation of the statute. Aguiar argues that relatively few instances of sexual conduct contemplated by the statute present a substantial risk of the use of force.

At least seven other circuits have addressed an issue similar to the one before us today. The Second, Fifth, Eighth, Tenth, and Eleventh Circuits have interpreted offenses involving similar statutes to be "crimes of violence" — even if the conduct is factually consensual — because they always involve a substantial risk of the use of physical force. See Chery, 347 F.3d at 408 ("Doubtless, cases can be imagined where a defendant's conduct does not create a genuine probability that force will be used, but the risk of force remains inherent in the statute.") (emphasis in original); United States v. Velázquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996); Ramsey v. INS, 55 F.3d 580, 583 (11th Cir.1995); United States v. Bauer, 990 F.2d 373, 375 (8th Cir.1993); United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir.1993). On the other hand, the Seventh and Ninth Circuits have found that not all cases involving violations of similar statutes present a substantial risk that physical force will be used. See Valencia v. Gonzáles, 431 F.3d 673, 677 (9th Cir.2005) (stating that, "[w]hen the victim actually consents to the sexual contact, it cannot be reasonably said that there is a substantial risk that physical force" will be used); Xiong v. INS, 173 F.3d 601, 607 (7th Cir.1999) (finding that "[a]bsent a substantial age difference," where the defendant engaged in factually consensual sex with his fifteen-year-old girlfriend,...