Pelayo-Garcia v. Holder, No. 05-70929.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Ikuta
• Citation: 589 F.3d 1010
• Parties: Luis Antonio PELAYO-GARCIA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Docket Number: No. 05-70929.
• Decision Date: 14 December 2009

589 F.3d 1010 Luis Antonio PELAYO-GARCIA, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent. No. 05-70929. United States Court of Appeals, Ninth Circuit. Argued November 19, 2008. Submitted December 3, 2009. Filed December 14, 2009.

[589 F.3d 1011]

Lilia G. Alcaraz, the Martinez-Senftner Law Firm PC and Gloria P. Martinez-Senftner (argued), the Martinez-Senftner Law Firm PC, for the petitioner.

Peter D. Keisler, United States Department of Justice; Michelle Gordon Latour, United States Department of Justice; Jennifer J. Keeney, United States Department of Justice; and Erica Miles (argued), United States Department of Justice, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A090-975-343.

Before: JOHN T. NOONAN, ANDREW J. KLEINFELD and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

This case presents the question whether the offense of "unlawful sexual intercourse with a minor" under section 261.5(d) of the California Penal Code meets the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43)(A), which includes "sexual abuse of a minor." We conclude it does not.

I

Luis Antonio Pelayo-Garcia, a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (BIA) affirming a final order of removal. Pelayo entered the United States in 1985 without inspection. In 1996, the Immigration and Naturalization Service (INS) served him with an order to show cause that alleged he was a deportable alien. Pelayo appeared before an immigration judge (IJ) and conceded deportability. The IJ granted suspension of deportation on a conditional basis (as

589 F.3d 1012

permitted under the then-current version of 8 CFR § 240.21), and in September 1998 the IJ granted Pelayo suspension of deportation and adjustment of status. After this order was issued, the government discovered that in December 1997, Pelayo had been convicted of the offense of unlawful sexual intercourse with a minor under section 261.5(d) of the California Penal Code. The government thereupon filed a motion to reopen, arguing that Pelayo's conviction constituted an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(A), which made Pelayo removable and statutorily ineligible for suspension of deportation under 8 U.S.C. § 1227(a)(2)(A)(iii).

The IJ granted the government's motion to reopen and held additional hearings, at which Pelayo admitted that he had been convicted under section 261.5(d), but denied that it constituted an aggravated felony. Based on our then current case law, the IJ concluded that the conviction under section 261.5(d) constituted an aggravated felony. Because of this conviction, Pelayo could neither satisfy the good moral character requirements for suspension of deportation nor qualify for voluntary departure. See 8 U.S.C. §§ 1101(f)(8), 1229c(a)(1). In March 2004, the IJ denied Pelayo's applications for suspension of deportation and for voluntary departure, and ordered Pelayo removed to Mexico. The BIA affirmed the IJ's decision, citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). Pelayo timely filed this petition for review.

II

Because Pelayo was placed in deportation proceedings before April 1, 1997, and a final order of deportation was entered after October 30, 1996, the transitional rules under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) are applicable to Pelayo's petition for review. Cardenas-Uriarte v. INS, 227 F.3d 1132, 1135 n. 1 (9th Cir.2000). Under the REAL ID Act of 2005, Pub.L. No. 109-13, § 106(d), 119 Stat. 231, 311 (2005) (codified as amended at 8 U.S.C. § 1252), the judicial review scheme in 8 U.S.C. § 1252 applies to cases governed by IIRIRA's transitional rules. See Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir.2005). Accordingly, we have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the BIA cites Matter of Burbano and does not express disagreement with any part of the IJ's decision, the BIA adopts the IJ's decision in its entirety. Figueroa v. Mukasey, 543 F.3d 487, 491 (9th Cir.2008). Under these circumstances, we review the IJ's decision as if it were the decision of the BIA. Id. at 491. We review legal questions addressed by the IJ de novo. Id.

III

Pelayo argues that his conviction for the offense of unlawful sexual intercourse in violation of California Penal Code section 261.5(d) is not a conviction for "sexual abuse of a minor," and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). We analyze this issue using the categorical and modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) and Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). See Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081-82 (9th Cir.2008).

"Under the categorical approach, we `compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.'" Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008) (quoting Quintero-Salazar v. Keisler,

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506 F.3d 688, 692 (9th Cir.2007)). Here, we must first identify the elements of the generic federal crime of "sexual abuse of a minor" under § 1101(a)(43)(A). See id. We have set out two different generic federal definitions of "sexual abuse of a minor." See United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir.2009); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir.2008) (en banc).

First, in Estrada-Espinoza, we explained that for purposes of § 1101(a)(43)(A), "Congress has enumerated the elements of the offense of `sexual abuse of a minor' at 18 U.S.C. § 2243." 546 F.3d at 1152. Section 2243 states, in pertinent part:

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.

18 U.S.C. § 2243(a). The mens rea of "knowingly" in § 2243(a) is limited by 18 U.S.C. § 2243(d), which states: "In a prosecution under [§ 2243(a)], the Government need not prove that the defendant knew-(1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging." Id. § 2243(d). Because the mens rea requirement of "knowingly" does not apply to knowledge of the victim's age, or the age difference between the defendant and the victim, it can apply only to the defendant's act of engaging in a sexual act. Cf. United States v. Jennings, 496 F.3d 344, 355 (4th Cir.2007) (holding that 18 U.S.C. § 2244(a) "required the government to prove, as an element of the offense, that [the defendant] knowingly engaged in or caused sexual contact with[the victim.]" (internal quotation marks and alterations omitted)). Although § 2243(a) does not spell out the situations in which a person might fail to meet this mens rea requirement, presumably a jury could find that a defendant who was extremely intoxicated or otherwise incapacitated did not knowingly engage in a sexual act. Accordingly, under Estrada-Espinoza, 546 F.3d at 1152, a statute of conviction qualifies as the...