Estrada-Espinoza v. Mukasey

Decision Date20 October 2008
Docket NumberNo. 05-75850.,05-75850.
Citation546 F.3d 1147
PartiesJuan Elias ESTRADA-ESPINOZA, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Saad Ahmad, Saad Ahmad & Associates; Fremont, CA, for the petitioner.

Gregory G. Katsas, Acting Assistant Attorney General; Thomas H. Dupree, Jr., Deputy Assistant Attorney General; Donald E. Keener, Deputy Director; Bryan S. Beier, Senior Litigation Counsel; Jennifer Levings, Trial Attorney; Washington, D.C., for the respondent.

Vikram K. Badrinath, Esquire, Vikram Badrinath, PC, Tucson, AZ, amicus curiae for the American Immigration Lawyers Association.

Zachary Miller Nightingale and Avantika Shastri, Attorneys, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, CA, amicus curiae for the Immigration Legal Resource Center.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-339-422.

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, ANDREW J. KLEINFELD, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, and RICHARD R. CLIFTON, Circuit Judges.

THOMAS, Circuit Judge:

In this appeal, we consider whether a conviction under any of four California statutory rape provisions—California Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h)—constitutes the aggravated felony "sexual abuse of a minor" within the meaning of 8 U.S.C. § 1101(a)(43). We conclude that each statute defines conduct that is categorically broader than the generic definition of "sexual abuse of a minor" and grant the petition for review.

I

Petitioner Juan Elias Estrada-Espinoza is a native and citizen of Mexico. He entered the United States in 1992, at the age of 12. He adjusted status to become a lawful permanent resident on June 25, 1998. After learning about Estrada-Espinoza's state statutory rape convictions stemming from his relationship with his younger girlfriend, the Department of Homeland Security ("DHS") placed Estrada-Espinoza in removal proceedings in 2005, charging him with being removable as an alien convicted of an aggravated felony.

Estrada-Espinoza met Sonia Arredondo in June 2001. He was 20 years old, and Arredondo was either 15 or 16 years old. Estrada-Espinoza claims that Arredondo and her friends told him she was 18 at the time of their meeting, and that he did not learn of her true age until December 2001. The two began living together in the home of Estrada-Espinoza's parents a few months after they met. Both sets of parents approved of the relationship and Estrada-Espinoza regularly visited his girlfriend's parents. After six months of living with Estrada-Espinoza's parents, the couple moved to a residence of their own. During this time, Estrada-Espinoza worked in various grocery stores to support himself, his girlfriend, and, eventually, the child they raised together.

On July 13, 2004, the District Attorney filed statutory rape charges against Estrada-Espinoza, alleging fourteen counts of various sex offenses. Estrada-Espinoza was convicted on four counts, all of them relating to sexual activity with his girlfriend: unlawful sexual intercourse with a person under 18 and three years younger than defendant, not defendant's spouse, Cal.Penal Code § 261.5(c);1 sodomy of a person under 18, § 286(b)(1); oral copulation of a person under 18, § 288a(b)(1); and sexual penetration by a foreign object of a person under 18, § 289(h). The court sentenced Estrada-Espinoza to 365 days in county jail, with credit for time served, on February 15, 2005. It is unclear from the record how he pled or whether there was a trial.

After DHS commenced proceedings, Estrada-Espinoza admitted the allegations but denied removability and moved to terminate the removal proceedings. On July 8, 2005, the Immigration Judge ("IJ") denied the motion to terminate the proceedings and found Estrada-Espinoza removable as an "aggravated felon" under 8 U.S.C. § 1227(a)(2)(A)(iii), § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), as that term is defined in 8 U.S.C. § 1101(a)(43)(A). That provision defines "aggravated felony" as "murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). The IJ appeared to rest this decision on Estrada-Espinoza's conviction under California Penal Code § 261.5(c), the statutory rape law which criminalizes sexual intercourse with someone under 18 and three years younger than the defendant, who is not the defendant's spouse. The IJ relied at least in part on our withdrawn opinion in Valencia v. Gonzales, 406 F.3d 1154, 1158 (9th Cir.2005), which found that § 261.5(c) was a crime of violence and hence an aggravated felony. The IJ recognized that Estrada-Espinoza was being removed for "sexual abuse of a minor," not a "crime of violence." The IJ did not have the benefit of the Valencia panel's amended opinion holding that § 261.5(c) is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F). See Valencia v. Gonzales, 439 F.3d 1046, 1052-53 (9th Cir.2006).

Estrada-Espinoza appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which dismissed the appeal on October 5, 2005. The BIA found no merit to Estrada-Espinoza's argument that because the sexual acts were consensual, "no violence was used and that there is no evidence of potential harm to the victim." Instead, the BIA relied heavily on its own published opinion Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999), in which the BIA adopted a "guide" to help identify offenses which constitute "sexual abuse of a minor." The BIA concluded that the state of California necessarily proved that Estrada-Espinoza engaged in conduct which constituted "sexual abuse of a minor" within the meaning of the guide adopted in Rodriguez-Rodriguez, in order to convict Estrada-Espinoza under the four California statutes. The BIA affirmed the IJ's finding that Estrada-Espinoza had been convicted of an aggravated felony, citing all four of the statutes of conviction. This timely petition for review followed.

A panel of our Court denied the petition for review, holding that our decision in Afridi v. Gonzales, 442 F.3d 1212 (9th Cir.2006), dictated the result. Estrada-Espinoza v. Gonzales, 498 F.3d 933, 936 (9th Cir.2007). Two members of the panel specially concurred, agreeing that Afridi controlled, but suggesting that Afridi be revisited en banc and overruled. Id. at 936-40 (Thomas and Leighton, concurring). Thereafter, upon the vote of a majority of the nonrecused active judges, the case was ordered reheard en banc pursuant to Ninth Circuit Rule 35-3. Estrada-Espinoza v. Mukasey, 525 F.3d 821, 822 (9th Cir.2008).

We review de novo the legal question of whether a conviction under the relevant California statutes constitutes "sexual abuse of a minor" within the meaning of 8 U.S.C. § 1101(a)(43)(A). See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067-68 (9th Cir.2007) (en banc).

To determine whether a conviction under §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h) constitutes "sexual abuse of a minor" within the meaning of 8 U.S.C. § 1101(a)(43)(A), we apply the familiar "categorical approach" set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). "The categorical approach requires us to `make a categorical comparison of the elements of the statute of conviction to the generic definition [of the crime], and decide whether the conduct proscribed by [the statute] is broader than, and so does not categorically fall within, this generic definition.'" Navarro-Lopez, 503 F.3d at 1067-68 (quoting Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir.2003)). We do not examine the facts underlying the offense, but "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.

II
A

We begin by determining the generic elements of the crime "sexual abuse of a minor." In the absence of specific congressional guidance as to the elements of a crime, courts have been left to determine the "generic sense in which the term is now used in the criminal codes of most States." Id. at 598, 110 S.Ct. 2143. Fortunately, we are not faced with that circumstance here because Congress has enumerated the elements of the offense of "sexual abuse of a minor" at 18 U.S.C. § 2243.2 That section provides, in relevant part:

§ 2243. Sexual abuse of a minor or ward

(a) Of a minor.—Whoever . . . knowingly engages in a sexual act with another person who—

(1) has attained the age of 12 years but has not attained the age of 16 years; and

(2) is at least four years younger than the person so engaging;

or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.

Thus, the generic offense of "sexual abuse of a minor" requires four elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.

Although it is unnecessary to survey current criminal law to ascertain a federal definition because Congress has already supplied it, such a review shows that the congressional definition comports with "the ordinary, contemporary, and common meaning of the words" of the term. United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (internal quotation marks omitted). As it is our duty "to give effect, if possible, to every clause and word of a statute," Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (internal quotation marks omitted), a conviction which constitutes "sexual abuse of a minor" must necessarily contain an element of abuse. We have previously construed the word "abuse" as "`physical or nonphysical misuse or maltreatment'" or "`use or treat[ment] so as to injure, hurt, or damage.'" United States v....

To continue reading

Request your trial
98 cases
  • United States v. Gonzalez-Aparicio
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 16 Noviembre 2011
    ...be under the age of sixteen.” (citing Rodriguez–Guzman, 506 F.3d at 746 )). In 2008, the en banc Court in Estrada–Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), specifically considered the following question: “[W]hether a conviction under any of four California statutory rape......
  • U.S. v. Oca
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 11 Agosto 2011
    ...(en banc); United States v. Snellenberger, 548 F.3d 699, 700–02 (9th Cir.2008) (en banc) (per curiam); Estrada–Espinoza v. Mukasey, 546 F.3d 1147, 1159–60 (9th Cir.2008) (en banc); United States v. Vidal, 504 F.3d 1072, 1086–90 (9th Cir.2007) (en banc); Navarro–Lopez, 503 F.3d at 1073; Unit......
  • Fernandez v. Barr
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 13 Agosto 2020
    ...to a specific crime which is already clearly defined in criminal law have no need for a cross-reference." Estrada-Espinoza v. Mukasey , 546 F.3d 1147, 1155 (9th Cir. 2008) (en banc), overruled in part and abrogated on other grounds as recognized by United States v. Rivera-Constantino , 798 ......
  • U.S. v. Gonzalez–aparicio
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 8 Junio 2011
    ...of conviction is divisible into several crimes, some of which fall under the relevant category, and some of which do not.” Estrada–Espinoza, 546 F.3d at 1159–60 (citing Carty v. Ashcroft, 395 F.3d 1081, 1084 (9th Cir.2005) ). The approach does not apply at all when the statute of convictio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT