Mondragon-Gonzalez v. Attorney Gen. of the U.S.

Decision Date29 January 2018
Docket NumberNo. 17-1710,17-1710
Citation884 F.3d 155
Parties Magdiel MONDRAGON-GONZALEZ, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent
CourtU.S. Court of Appeals — Third Circuit

Bridget Cambria, Esq., Cambria & Kline, 532 Walnut Street, Reading, PA 19601, Counsel for Plaintiff-Appellant Magdiel Mondragon-Gonzalez

Attorney General Jeff Sessions, Esq., Janette L. Allen, Esq., Jennifer A. Bowen, Esq., Barbara J. Leen, Esq., Anthony C. Payne, Esq., Jessica D. Strokus, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, P.O. Box 848, Ben Franklin Station, Washington, DC 20044, Counsel for Defendant-Appellee Attorney General for the United States of America

Before: VANASKIE, SHWARTZ, and FUENTES, Circuit Judges

OPINION OF THE COURT

VANASKIE, Circuit Judge.

Magdiel Mondragon-Gonzalez petitions for review of a final order of the Board of Immigration Appeals upholding an Immigration Judge's decision directing that Mondragon-Gonzalez be removed from the United States. The BIA determined that Mondragon-Gonzalez's conviction of unlawful contact with a minor in violation of 18 Pa. Cons. Stat. § 6318(a)(5) is a "crime of child abuse" constituting grounds for removal pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). We agree with the BIA's determination and will thus deny the petition for review.

I.

Mondragon-Gonzalez was admitted to the United States near El Paso, Texas in August 2008 on an immigrant visa. In April 2015, he pled guilty to unlawful contact with a minor.1 Specifically, Mondragon-Gonzalez pled guilty to violating 18 Pa. Cons. Stat. § 6318(a)(5), which provides:

A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth: (5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).

The state trial court sentenced Mondragon-Gonzalez to a prison term of 8 to 23 months.

On December 14, 2015, the Department of Homeland Security ("DHS") commenced proceedings to deport Mondragon-Gonzalez on the basis of his state court conviction. On March 1, 2016, the Immigration Judge found that Mondragon-Gonzalez's conviction fell within 8 U.S.C. § 1227(a)(2)(E)(i), one of the three statutory grounds for removal advanced by DHS.2 Section 1227(a)(2)(E)(i), in pertinent part, provides that "[a]ny alien who at any time after admission is convicted of ... a crime of child abuse ... is deportable." The Immigration Judge concluded that Mondragon-Gonzalez's conviction constituted a "crime of child abuse" as that phrase has been interpreted by the BIA.

Agreeing with the Immigration Judge, the BIA dismissed Mondragon-Gonzalez's appeal. In doing so, the BIA compared the elements of the state criminal conviction and its interpretation of a "crime of child abuse" articulated in Matter of Velazquez-Herrera , 24 I. & N. Dec. 503 (BIA 2008) ; Matter of Soram , 25 I. & N. Dec. 378 (BIA 2010) ; and Matter of Mendoza Osorio , 26 I. & N. Dec. 703 (BIA 2016). The Board found that the Immigration Judge was correct in sustaining the grounds for removal under § 1227(a)(2)(E)(i) because Mondragon-Gonzalez's conviction satisfied the elements of the crime of child abuse as established in the BIA's precedential decisions. Mondragon-Gonzalez timely petitioned for review by our Court.

II.

Mondragon-Gonzalez challenges the BIA decision on two grounds. First, he argues that the Board's definition of what constitutes a crime of child abuse is unreasonable and should not be afforded Chevron deference. Second, he insists that the Pennsylvania law of which he stands convicted is not a categorical match of the BIA's interpretation of what constitutes a "crime of child abuse."

We accord de novo review to questions of law, including the BIA's interpretation of the INA, subject to the deference dictated by Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc . 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ; Cheruku v. Att'y Gen. of U.S ., 662 F.3d 198, 202 (3d Cir. 2011). Under Chevron , we take a two-step approach, first deciding whether the statutory provision interpreted by the BIA is ambiguous and then, if it is, giving deference to the BIA's reasonable interpretation of the INA. De Leon-Ochoa v. Att'y Gen. of U.S., 622 F.3d 341, 348 (3d Cir. 2010).

III.

The crime of child abuse is not defined in the INA. Moreover, the meaning of the phrase, "crime of child abuse," as used in § 1227(a)(2)(E)(i) is not plain and unambiguous. See Florez v. Holder , 779 F.3d 207, 211 (2d Cir. 2015). We therefore must view the term as ambiguous, i.e. , requiring interpretation, and proceed to the second step of the Chevron inquiry: "whether the BIA's interpretation ‘is based on a permissible construction of the statute.’ " Id.

In Velazquez-Herrera , 24 I. & N. Dec. at 508, the BIA considered the legislative history of § 1227(a)(2)(E)(i), and surveyed both state and federal law defining the term "child abuse" at the time Congress enacted the current provision. Id . at 508-13. The Board arrived at the following working definition, interpreting the term broadly to mean:

[A]ny offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child's physical or mental well-being, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in ... sexually explicit conduct....

Id. 512. Building on this broad definition, the BIA held in a subsequent precedential opinion that the crime of child abuse is not limited to crime that require actual proof of injury to a minor—i.e. , evidence of a physical act. Matter of Soram , 25 I. & N. Dec. 378, 380-81 (BIA 2010).

Based on the case law and legislative history, we cannot say that the Board's interpretation of a crime of child abuse is unreasonable. As the BIA explained in Matter of Velazquez-Herrera , § 1227(a)(2)(E)(i)"was enacted ... as part of an aggressive legislative movement to expand the criminal grounds of deportability in general and to create a ‘comprehensive statutory scheme to cover crimes against children’ in particular." 24 I. & N. Dec. at 508-09 (quoting Matter of Rodriguez-Rodriguez , 22 I. & N. Dec. 991, 994 (BIA 1999) ). Given Congress' evident intent to make crimes that harm children deportable offenses, we do not find the BIA's interpretation in this regard to be "arbitrary, capricious, or manifestly contrary to the statute." Chen v. Ashcroft , 381 F.3d 221, 224 (3d Cir. 2004). We, therefore, must defer to its definition of "crime of child abuse."3 Accord Florez , 779 F.3d at 212.

Mondragon-Gonzalez's second argument—that his conviction under § 6318(a)(5) is not a categorical match to a crime of child abuse as defined by the BIA—is also unavailing. The BIA correctly determined that the Pennsylvania statute at issue satisfies the necessary intent to be considered child abuse under § 1227(a)(2)(E)(i). Velasquez-Herrera , 24 I. &. N. Dec. at 512 (a crime of child abuse includes crimes "involving an intentional, knowing, reckless, or criminally negligent act or omission"). By its plain language, 18 Pa. Cons. Stat. § 6318(a)(5) requires intentional contact with a minor for the purpose of engaging in sexual abuse of children.

Second, the Pennsylvania statute meets the generic definitional requirement in § 1227(a)(2)(E)(i), that the act committed by the offender constitute maltreatment of a child such that there was a sufficiently high risk of harm to a child's physical or mental well-being. See Matter of Mendoza Osorio , 26 I. & N. Dec. at 704-05. Mondragon-Gonzalez argues that the Pennsylvania statute does not involve a sufficiently high risk of harm to a child because the statute only criminalizes communication with a child. Mondragon-Gonzalez, however, ignores the fact that a conviction under the Pennsylvania statute requires that the perpetrator "contacts or communicates with the minor for the purpose of engaging in the prohibited activity." Com. v. Morgan , 913 A.2d 906, 910 (2006) (emphasis in original). Thus, a conviction would not occur under the statute unless it had already been proven that the communication was intended for an illicit sexual purpose, and this is sufficient to create a high risk of harm to a child.

In his Reply Brief, Mondragon-Gonzalez seizes upon the recent decision in Esquivel-Quintana v. Sessions , ––– U.S....

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