Cedano-Viera v. Ashcroft

• Citation: 324 F.3d 1062
• Decision Date: 26 March 2003
• Docket Number: No. 01-70622.,01-70622.
• Parties: Jose Encarnacion CEDANO-VIERA, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

324 F.3d 1062

Jose Encarnacion CEDANO-VIERA, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent.

No. 01-70622.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2003.

Filed March 26, 2003.

Amended April 7, 2003.

Mark Van Der Hout, Van Der Hout & Brigagliano, San Francisco, CA, for the petitioner.

M. Jocelyn Lopez Wright, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondent.

Petition to Review a Decision of the Board of Immigration Appeals. I & NS No. A44-080-377.

Before: TROTT, RYMER, and TALLMAN, Circuit Judges.

ORDER

The opinion filed March 26, 2003, is amended as follows:

Slip opinion at 4373-4374 : eliminating the final two paragraphs in Part II.

OPINION

RYMER, Circuit Judge.

Jose Cedano-Viera is a native and citizen of Mexico who entered the United States as a lawful permanent resident (LPR) in April 1993. He was later convicted of Lewdness with a Child Under Fourteen Years of Age in violation of Nevada law. The Immigration & Naturalization Service (INS) initiated removal proceedings, charging that Cedano-Viera's conviction was an "aggravated felony" — "sexual abuse of a minor" — as defined in INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A). The immigration judge (IJ) agreed, and the Board of Immigration Appeals (BIA) summarily affirmed the results of the IJ's decision pursuant to 8 C.F.R. § 3.1(a)(7).¹ Cedano-Viera claims that the BIA's summary affirmance violated his due process right to appeal, and that the BIA did not comply with its own regulation in designating his case for "streamlining."² He also contends that his ineligibility for an INA § 212(h), 8 U.S.C. § 1182(h), waiver of inadmissibility as an LPR convicted of an aggravated felony offends principles of equal protection because non-legal permanent residents are treated differently.

Although a court of appeals has authority to review final removal orders under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1), Congress eliminated jurisdiction to review a final order of removal against an alien who is removable by reason of having committed an aggravated felony as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.³ INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). In such cases, we have jurisdiction only to determine our jurisdiction, that is, to make sure as a matter of law that the alien's conviction qualifies as an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A). We are satisfied that Cedano-Viera's conviction involved sexual abuse of a minor and meets the definition of "aggravated felony." Normally this would end the matter, but both Cedano-Viera and the government assert that we may consider his constitutional claims regardless of the fact that this court is divested of jurisdiction to review his order of removal.

We conclude that the court of appeals, having no jurisdiction to review Cedano-Viera's removal order because he was convicted of an aggravated felony, lacks jurisdiction to consider his constitutional challenges as well. As the Supreme Court has indicated and we have previously held, constitutional claims by aliens who are subject to removal as aggravated felons must be raised in the district court through habeas corpus proceedings. Accordingly, we dismiss the petition.

I

The government has moved to dismiss Cedano-Viera's petition on the ground that our jurisdiction is restricted by INA § 242(a)(1)(C), 8 U.S.C. § 1252(a)(2)(C), because Cedano-Viera was convicted of an aggravated felony and was ordered removed pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Cedano-Viera responds that we should decide whether the BIA's summary affirmance regulations are constitutional, or were properly applied to his case, because if not, then the BIA's decision affirming removability is also invalid. We disagree with Cedano-Viera's approach; it is well settled that we must resolve our jurisdiction first. See, e.g., Flores-Miramontes, 212 F.3d 1133, 1143 (9th Cir.2000).

We start with INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), because it provides that "[n]otwithstanding any other provision of law, 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 in [INA] section ... 237(a)(2)(A)(iii)." (Emphasis added). INA § 237(a)(2)(A)(iii), 8 U.S.C § 1227(a)(2)(A)(iii), renders removable any alien who is convicted of an aggravated felony after admission into this country. The jurisdictional bar thus appears to apply to Cedano-Viera. However, a "narrow exception" exists that allows us to determine whether Cedano-Viera is actually removable; in other words, we may decide whether we have jurisdiction. Flores-Miramontes, 212 F.3d at 1135-36; Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000).

Cedano-Viera does not dispute that he is an alien who committed a criminal offense; the only question is whether his conviction is a qualifying "aggravated felony." Following a guilty plea, Cedano-Viera was convicted of Lewdness with a Child Under Fourteen Years of Age in violation of Nevada Revised Statute ("N.R.S.") § 201.230. He was sentenced to three to seven-and-one-half years of imprisonment (suspended) and was placed on probation for five years. In February 1999, the state court reduced Cedano-Viera's term of probation to twenty-six months, discharged him from probation, and expunged his conviction.

Meanwhile, the INS charged that Cedano-Viera was subject to removal in that he had been convicted of sexual abuse of a minor, which is an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A). Cedano-Viera denied the charge. At his removal hearing, the INS introduced the amended criminal information to which Cedano-Viera pled guilty, and the judgment of conviction. The IJ did not accept Cedano-Viera's contention that "sexual abuse of a minor" must be defined as it is under federal criminal law. Instead, the IJ found that sexual conduct between an adult and a child has historically been criminalized, and is, per se, sexual abuse of a minor. Accordingly, he concluded that Cedano-Viera was removable and because of his conviction, was ineligible for adjustment of status under INA § 245, 8 U.S.C. § 1255, and not able to receive a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).

Cedano-Viera argues again to us that the state offense can be considered "sexual abuse of a minor" only if N.R.S. § 201.230 is no broader than the federal offense of Sexual Abuse of a Minor under 18 U.S.C. § 2243(a). However, we rejected the same argument in United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999). There, we held that a conviction under California law for committing a lewd or lascivious act on a child under the age of fourteen is an aggravated felony as defined in INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of a sentencing enhancement under the United States Sentencing Guidelines. Like Cedano-Viera, Baron-Medina argued that the federal sexual abuse laws limit the class of state laws reached by the term "sexual abuse of a minor" in INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A). We pointed out that Congress did not cross-reference any federal substantive offense in listing "sexual abuse of a minor" as an aggravated felony. Therefore, rather than adopt the federal definition, we held that we must interpret the term "by employing the `ordinary, contemporary, and common meaning of the words that Congress used,'" and then determine whether or not the state statute falls within it. 187 F.3d at 1146 (quoting Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1174 (9th Cir. 1999)); see Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (embracing the categorical approach). We concluded that the conduct covered by the California statute falls within the common, everyday meanings of "sexual" and "minor," and that it punishes "abuse" even though its reach is expansive. Id. at 1147.

The Nevada statute under which Cedano-Viera was convicted parallels the California statute at issue in Baron-Medina.⁴ It follows in this case that, as we explained in Baron-Medina, "[t]he use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order. It constitutes maltreatment, no matter its form." Id. (dictionary citations omitted). Accordingly, we conclude that Cedano-Viera's conviction qualifies as a conviction for "sexual abuse of a minor" and therefore is an aggravated felony.

Cedano-Viera's other arguments fail as well. First, he contends that the term "sexual abuse of a minor" is ambiguous and so must be construed in his favor consistent with INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). However, as we held in Baron-Medina, the phrase is not ambiguous given its "ordinary, contemporary, and common meaning." 187 F.3d at 1147. Other circuits are in accord. See Lara-Ruiz v. INS, 241 F.3d 934, 942 (7th Cir.2001) (holding "that [INA] § 101(a)(43)(A) is not ambiguous" and rejecting petitioner's argument that the rule of lenity should be applied to determine the definition of "sexual abuse of a minor"); United States v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir.2001) (finding that "the plain meaning of [INA] § 101(a)(43) is unambiguous" and that "the phrase `sexual abuse of a minor' is not ambiguous"); United States v. Zavala-Sustaita, 214 F.3d 601, 608 n. 11 (5th Cir.2000) ("Because we find that the phrase `sexual abuse of a minor' is not ambiguous, we reject Zavala's argument that we should read the phrase narrowly under the rule of lenity."). St. Cyr does not suggest otherwise, for the Court was concerned with whether legislation can be applied retroactively when the Court stated that the intent of Congress must be communicated "with unmistakable clarity." See St. Cyr, 533 U.S. at...