Afridi v. Gonzales

• Decision Date: 04 April 2006
• Docket Number: No. 04-76600.,04-76600.
• Parties: Rahmatullah AFRIDI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

442 F.3d 1212

Rahmatullah AFRIDI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-76600.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2006.

Filed April 4, 2006.

COPYRIGHT MATERIAL OMITTED

Kevin H. Knutson, Sacramento, CA, for the petitioner.

Paul Fiorino and Margaret K. Taylor, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of a Decision of the Board of Immigration Appeals.

Before: HUG, ALARCÓN, and McKEOWN, Circuit Judges.

ALARCÓN, Circuit Judge:

Petitioner Rahmatullah Afridi petitions for review of the Board of Immigration Appeals' ("BIA") decision dismissing his appeal and ordering him removed to Afghanistan. Mr. Afridi contends that the BIA erred in finding him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having committed an aggravated felony and in denying him withholding of removal pursuant to 8 U.S.C. § 1231(b)(3) and protection under Article 3 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, S. Treaty Doc. No. 100-20, at 20 (1988), 23 I.L.M. 1017, 1028 (1984) ("Convention Against Torture"). Mr. Afridi also contends that the BIA violated his right to due process by failing to apply proper legal standards. We conclude that Mr. Afridi was removable for having committed an aggravated felony. We also hold that the BIA applied the proper legal standard in determining that Mr. Afridi does not qualify for relief under the Convention Against Torture. We grant the petition for review in part, however, because we conclude that the BIA failed to apply the proper legal standard in determining Mr. Afridi's eligibility for withholding of removal.

I

Mr. Afridi, a citizen of Afghanistan, was admitted to the United States as a refugee in 1985 and became a lawful permanent resident in 1986.

In 1993, Mr. Afridi pled no contest to his indictment under what is now California Penal Code § 261.5(c) (West 2005) for unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator and was sentenced to three years probation. Mr. Afridi, who was born in 1961, testified in immigration court that this conviction resulted from his having had sexual intercourse with a seventeen-year-old girl he picked up on the side of the road who said she would have sex with him for sixty dollars.

On April 15, 2003, a notice to appear was issued charging Mr. Afridi as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he was convicted of an aggravated felony—the sexual assault of a minor—after admission into the United States.

Mr. Afridi admitted all the allegations contained in the Notice to Appear, except the allegation that he had been convicted of unlawful sexual intercourse with a minor. The Immigration Judge ("IJ") found that Mr. Afridi was removable, and denied all forms of relief. He appealed this decision to the BIA.

On November 22, 2004, the BIA affirmed the IJ's order. The BIA found that (1) the IJ properly found that Mr. Afridi was removable for having committed an aggravated felony; (2) Mr. Afridi's conviction constituted a particularly serious crime, rendering him ineligible for withholding of removal; (3) the IJ was correct in its determination that Mr. Afridi's demonstration of unusual or outstanding equities did not compel an exercise of discretion; and (4) the IJ properly found that Mr. Afridi failed to demonstrate eligibility for protection under the Convention Against Torture. Mr. Afridi now petitions for review of the BIA's decision.

II

A

Mr. Afridi first contends that the BIA improperly determined that his conviction for unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator constituted an aggravated felony. The questions of law presented in this petition are reviewed de novo, with deference generally afforded to the BIA's interpretation of the immigration laws "unless that interpretation is contrary to the plain and sensible meaning of the statute." Yeghiazaryan v. Gonzales, 431 F.3d 678, 682 (9th Cir.2005) (quoting Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004)).

Under 8 U.S.C. § 1227(a)(2)(A)(iii), an alien who has committed an aggravated felony after admission is removable. The term "aggravated felony" is defined at 8 U.S.C. § 1101(a)(43)(A) as "murder, rape, or sexual abuse of a minor." Sexual abuse of a minor is not defined in the Immigration and Nationality Act ("INA").

When Congress placed "sexual abuse of a minor" in the list of aggravated felonies, it did so without cross-referencing any other federal statute. United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999); 8 U.S.C. § 1101(a)(43)(A). Because Congress did not define "sexual abuse of a minor" for the purposes of defining aggravated felony, courts must interpret the term "by employing the ordinary, contemporary, and common meaning of the words that Congress used." Baron-Medina, 187 F.3d at 1146 (quoting Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1174 (9th Cir.1999)); see also Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 (9th Cir.2003) (reaffirming that when the term "sexual abuse of a minor" is at issue, Baron-Medina controls).

In this case, the BIA, consistent with Baron-Medina, employed the "ordinary, contemporary and common meaning" of "sexual abuse of a minor." Baron-Medina, 187 F.3d at 1146. The BIA used the definition of the term set forth in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995 (BIA 1999), which defined "sexual abuse of a minor" as "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." Id. (quoting 18 U.S.C. § 3509(a)(8)).

In arriving at that definition, the BIA in Rodriguez-Rodriguez followed the rules of statutory construction. Id. at 994, 1999 WL 731793. The BIA looked at: (1) Congress's intent to "expand the definition of an aggravated felony and to provide a comprehensive statutory scheme to cover crimes against children" in adding "sexual abuse of a minor" to the list of aggravated felonies; (2) the definition of sexual abuse in 18 U.S.C. § 3509(a)(8), which the BIA believed best captured the broad spectrum of behaviors that constitute sexual abuse of a minor and to be consistent with the common meaning of the term; and (3) Black's Law Dictionary's definition of the term: "[i]llegal sex acts performed against a minor by a parent, guardian, relative or acquaintance." Id. at 994-96, 1999 WL 731793.

The BIA's definition was based on a permissible construction of the statute. Consistent with our precedent, it relied on authorities designed to guide it toward the common meaning of the term. Because the BIA's construction was permissible, we defer to it. See Yeghiazaryan, 431 F.3d at 682 (stating that deference is afforded BIA's interpretation of statutes).

Notably, Black's Law Dictionary defines "minor" without reference to a specific age. Instead, minor is defined simply as "a person who has not yet reached full legal age." Black's Law Dictionary (8th ed.2004). "Legal age" is defined the same as "age of majority," which is age eighteen or when a person attains full legal rights. Id. Therefore, the BIA's decision not to limit the definition of "minor" is also consistent with the common meaning of the term.

Mr. Afridi argues that in interpreting the term "sexual abuse of a minor," courts must look to federal substantive law. Specifically, he points to 18 U.S.C. § 2243, which defines sexual abuse of a minor for purposes of federal criminal law. Under this section, sexual abuse of a minor includes sexual acts with a person who has attained the age of twelve years but has not yet attained the age of sixteen years. Mr. Afridi contends that because his victim was seventeen, and thus, his crime would not have constituted "sexual abuse of a minor" under federal criminal law, it should not be an aggravated felony.

However, the term "aggravated felony" is not limited to those crimes defined by federal law as sexual abuse of a minor for purposes of determining removability. In fact, 8 U.S.C. § 1101(a)(43) provides that the term "aggravated felony" includes offenses "whether in violation of Federal or State law." In Baron-Medina, we expressly rejected the suggestion that the federal sexual abuse laws limit the class of law reached by the term "sexual abuse of a minor." Baron-Medina, 187 F.3d at 1146. Accordingly, we reject Mr. Afridi's argument.¹

B

We next consider whether Mr. Afridi's offense fits the definition of sexual abuse of a minor. A crime under a state statute qualifies as "sexual abuse of a minor" if the full range of conduct defined by the statute falls within the meaning of the term. Baron-Medina, 187 F.3d at 1146 (citing Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

Section 261.5(c) of the California Penal Code provides as follows:

Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

"Unlawful sexual intercourse" is defined by § 261.5(a) of the California Penal Code as:

an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.

A conviction under this statute meets the BIA's interpretation of "sexual abuse of a minor" as encompassing any offense that involves "the employment, use,...