Contreras v. Holder

• Decision Date: 06 June 2014
• Docket Number: No. 13–60407.,13–60407.
• Citation: 754 F.3d 286
• Parties: Johel Amilcar CONTRERAS, also known as Pablo Contreras Villalta, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

754 F.3d 286

Johel Amilcar CONTRERAS, also known as Pablo Contreras Villalta, Petitioner

v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 13–60407.

United States Court of Appeals,Fifth Circuit.

June 6, 2014.

Recognized as Unconstitutional

West's V.C.A. § 18.2–344Azzam Hussami, Esq., Ceja Law Office, P.L.L.C., Grand Prairie, TX, for Petitioner.

Edward Earl Wiggers, Esq., Tangerlia Cox, Jeffrey Ronald Meyer, Esq., U.S. Department of Justice, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Johel Amilcar Contreras was denied special rule cancellation of removal under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) because the Board of Immigration Appeals (BIA) considered his 1992 Virginia conviction for “carnal knowledge of a child between thirteen and fifteen years of age” an “aggravated felony” as defined by the Immigration and Nationality Act (INA). We agree with the BIA, and DENY Contreras's petition.

I.

Johel Amilcar Contreras, a native and citizen of El Salvador, entered the United States in October 1998 without being admitted or paroled. He concedes that he is subject to removal for that reason.¹ Contreras applied for suspension of deportation or special rule cancellation of removal under § 203 of NACARA.² The U.S. Citizenship and Immigration Services (USCIS) determined that Contreras was not eligible for such relief because he had not established that he had been a person of good moral character and because it appeared that he was inadmissible due to criminal activity. The USCIS referred Contreras's application to an Immigration Judge (IJ).

The Government argued to the IJ that Contreras was ineligible for NACARA relief because he was convicted in 1992 for the Virginia offense of carnal knowledge of a child between thirteen and fifteen years of age, as defined by Virginia Code § 18.2–63.³ According to the Government, this offense was an “aggravated felony” as defined by the INA in 8 U.S.C. § 1101(a)(43)(A) because it constituted “sexual abuse of a minor.” ⁴ Contreras argued that he was eligible for relief because his Virginia offense of conviction did not meet the definition of an aggravated felony. The IJ found that the Virginia offense was an aggravated felony because it constituted sexual abuse of a minor. The IJ concluded that Contreras was “ per se

ineligible for NACARA relief” and ordered him removed to El Salvador.

Contreras appealed to the BIA, asserting that the IJ's conclusion that he was ineligible for NACARA relief was “contrary to precedent holding that the offense of which he was convicted is not an ‘aggravated felony.’ ” He argued that his offense did not qualify as sexual abuse of a minor because it did not require knowledge or abuse and because it required only a three-year age difference between the victim and the accused. He also argued that it was not an aggravated felony because it was not a crime of violence.

The BIA agreed that Contreras was ineligible for NACARA relief because he failed to meet his burden of demonstrating that he had not committed an aggravated felony and dismissed the appeal. The BIA noted that use of force was not an element of Contreras's offense of conviction but concluded that all of the conduct that constitutes carnal knowledge of a minor under the current Virginia statute—including sexual intercourse, oral and anal sex, and sexual penetration with objects—qualifies as sexual exploitation of a child of 13– or 14–years–old and, thus, as sexual abuse of a minor.⁵ The BIA noted that, while knowledge of the minor's age is a factor in determining whether an offense constitutes sexual abuse of a minor, it is not a dispositive factor. It explained, “Our conclusion that this offense falls within the meaning of sexual abuse of a minor is consistent with the intent of Congress to remove aliens who are sexually abusive toward children and to bar them from any relief.” The BIA did not address Contreras's argument that his conviction was not an aggravated felony because it was not a crime of violence.

Contreras filed a timely petition for review.⁶

II.

We have jurisdiction over this petition for review under 8 U.S.C. § 1252(a)(1). We have authority to review only the order of the BIA, and not the order of the IJ, unless the IJ's decision had some impact on the BIA's decision.⁷ While we owe deference to the BIA's interpretation of the INA, pursuant to Chevron USA, Inc. v. NRDC,⁸ we review de novo whether an offense constitutes an aggravated felony.⁹

III.

A.

NACARA allows nationals from El Salvador, and other Central American nations, to apply for discretionary relief from deportation under the more relaxed terms that existed before the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.¹⁰ A Salvadoran national may apply for special rule cancellation of removal under NACARA if, among other things, he has not been convicted of an “aggravated felony,” as defined by the INA in § 1101(a)(43)(A).¹¹ The term “aggravated felony” includes “sexual abuse of a minor.” ¹² But the INA does not define “sexual abuse of a minor.” The question is whether a conviction in Virginia for carnal knowledge of a child between thirteen and fifteen years of age qualifies as the generic offense of sexual abuse of a minor, thus making it an aggravated felony within the INA.

B.

In 1992, § 18.2–63, entitled “Carnal knowledge of child between thirteen and fifteen years of age,” provided:

If any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age, such person shall be guilty of a Class 4 felony.

Provided, however, if such child be thirteen years of age or older but under fifteen years of age and consents to the carnal knowledge and the accused be a minor and such consenting child is three years or more the accused's junior, the accused shall be guilty of a Class 6 felony, but if such consenting child is less than three years the accused's junior, the accused shall be guilty of fornication.

In calculating whether such child is three years or more a junior of the accused minor, the actual dates of birth of the child and the accused, respectively, shall be used.

For the purposes of this section a child under the age of thirteen years shall not be considered a consenting child.¹³

At the time, for a Class 4 felony, the statutory minimum penalty for imprisonment was two years and the maximum was ten years, with the possibility of a fine of no more than $100,000.¹⁴ For a Class 6 felony, the statutory minimum penalty for imprisonment was one year and the maximum was five years, unless the factfinder used its discretion to impose a lesser sentence of up to one year of confinement in jail or a fine of no more than $2,500 or both.¹⁵ Fornication was classified as a Class 4 misdemeanor, ¹⁶ which was punishable at the time by a fine of not more than $250. ¹⁷

The term “carnal knowledge” was not defined in the statute. But, interpreting the undefined term, the Court of Appeals of Virginia once held that “the plain meaning of ‘carnal knowledge’ is any sexual bodily connection, not simply sexual intercourse.” ¹⁸ The statute has since been revised to specify that “ ‘carnal knowledge’ includes the acts of sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and animate and inanimate object sexual penetration.” ¹⁹

C.

To determine whether Contreras's prior offense constitutes sexual abuse of a minor, we first apply a categorical approach, looking only to the statutory elements of the offense and not to facts underlying the particular offense.²⁰ But where the statute of conviction identifies several separate offenses, we use the modified categorical approach, meaning that we may look to certain adjudicative records, such as charging documents and plea agreements, to narrow the definition of the offense and determine its elements.²¹ Recently, the Supreme Court held that the modified categorical approach may only be applied where the statute of conviction contains multiple crimes set forth as alternative elements.²² The “modified categorical approach merely assists the sentencing court in identifying the defendant's crime of conviction.” ²³ It is not applicable “when the crime of which the defendant was convicted has a single, indivisible set of elements.” ²⁴ Where a prior conviction is based on an indivisible statute, meaning “one not containing alternative elements,” and where the statute “criminalizes a broader swath of conduct than the relevant generic offense,” a court cannot look beyond the elements set forth in the statute.²⁵ We use the modified categorical approach in those instances where the statute of conviction defines multiple offenses, and one of those offenses would not fit within the generic offense, here the offense of “sexual abuse of a minor,” which the INA considers an “aggravated felony.” ²⁶

Looking at § 18.2–63, we must employ the modified categorical approach because this statute is divisible. The statute covers a broad swath of conduct, only some of which may fall within the generic offense of sexual abuse of a minor. Under § 18.2–63, one cannot know which version of the offense Contreras was convicted of by looking at the statute. For each different level of culpability, the criminal statute contains different elements. For example, for a conviction of the Class 4 misdemeanor under § 18.2–63, the elements include not only (1) carnal knowledge, (2) without the use of force, (3) of a child between thirteen and fifteen years of age, but also include that (4) the accused is a minor, (5) the child has consented, and (6) the child is less than three years the accused's junior. On the other hand, for a conviction of the Class 6 felony under § 18.2–63, the elements include...