Perez-Gonzalez v. Holder

• Decision Date: 12 January 2012
• Docket Number: No. 10–60798.,10–60798.
• Citation: 667 F.3d 622
• Parties: Juan PEREZ–GONZALEZ, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

667 F.3d 622

Juan PEREZ–GONZALEZ, Petitioner,

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

No. 10–60798.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 2012.

Javier N. Maldonado (argued), Law Office of Javier N. Maldonado, P.C., San Antonio, TX, for Petitioner.

Edward Earl Wiggers (argued), Tangerlia Cox, Imran Raza Zaidi, Trial Atty., U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

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

Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Juan Perez–Gonzalez petitions for review of the Board of Immigration Appeals' decision that he is to be removed based on having committed an aggravated felony. Because the record does not show that the crime for which he pled guilty was an aggravated felony, we GRANT the petition for review, REVERSE, and REMAND for further proceedings.

FACTS AND PROCEDURAL HISTORY

In 1986, a few months after his eighteenth birthday, Perez–Gonzalez pled guilty in Montana state court to sexual intercourse without consent, a felony. Mont.Code Ann. § 45–5–503(1). The formal allegation was that Perez–Gonzalez “did knowingly have sexual intercourse without consent with a person of the opposite sex, not his spouse.” The trial judge accepted Perez–Gonzalez's guilty plea. Because of the facts alleged and lack of any criminal history, Perez–Gonzalez was sentenced only to probation for one year.

Two decades later, while seeking renewal of his permanent resident alien card in San Antonio, Perez–Gonzalez was told by Immigration and Customs Enforcement that he would be removed due to the 1986 conviction for what it considered to be an aggravated felony. Such an offense would make him removable. See 8 U.S.C. § 1227(a)(2)(A)(iii).

After receiving his notice of removal, Perez–Gonzalez appeared before an immigration judge (IJ) and argued that (1) he was not removable because he had not committed an aggravated felony, (2) even if he were an aggravated felon, the removal provision was not retroactive and therefore did not cover his conduct, and (3) he should be granted a waiver. The IJ held Perez–Gonzalez was not entitled to a waiver; the removal statute applies retroactively; and Perez–Gonzalez had pled guilty to a crime that constituted rape or sexual abuse of a minor. Both are aggravated felonies.

On appeal, the Board of Immigration Appeals (BIA) affirmed the rulings that Perez–Gonzalez was not entitled to a waiver, that the removal provision applies retroactively, and that he committed rape. It did not decide whether Perez–Gonzalez committed sexual abuse of a minor.

Perez–Gonzalez filed a timely petition for this court to review the BIA's decision. Our disposition makes it unnecessary to decide whether the removal statute applies retroactively or whether he is entitled to a waiver.

DISCUSSION

The conclusion that the Montana crime of conviction was an aggravated felony is reviewed de novo. Moncrieffe v. Holder, 662 F.3d 387, 390 (5th Cir.2011). To decide whether a person subject to a removal order was convicted of an aggravated felony, we start our analysis with a categorical approach. Larin–Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir.2006). This analysis is to be applied only to the statutory definition of the crime, not to the facts of the offense as committed. Nolos v. Holder, 611 F.3d 279, 285 (5th Cir.2010).

If the statute provides multiple forms of the offense, and at least one is not an aggravated felony, we use the modified categorical approach. Id. It allows us to consider the record of conviction to determine the statutory subsection of conviction. Id. When, as here, there is a guilty plea, this court may also consider the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir.2005) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

In reviewing the permitted documents, we must “determine whether the conviction was ‘necessarily’ for a particular crime defined by the statute that meets the aggravated felony criterion.” Larin–Ulloa, 462 F.3d at 464 (quoting Shepard, 544 U.S. at 20–21, 125 S.Ct. 1254). If these documents do not establish that the conviction was necessarily for an aggravated felony, “the government has not met its burden of proving that the conduct for which the petitioner was convicted constitutes a predicate offense, and the conviction may not be used as a basis for removal.” Id. (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620–21 (9th Cir.2004)).

I. “Aggravated Felony” and the Montana Sexual Crimes Statute

The Montana statute that Perez–Gonzalez violated stated this: “A person who knowingly has sexual intercourse without consent with a person of the opposite sex commits the offense of sexual intercourse without consent.” Mont.Code Ann. § 45–5–503(1).

“Sexual intercourse” was defined as:

penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual desire of either party.

Mont.Code Ann. § 45–2–101(61).

We conclude that the statute outlawed three different non-consensual acts: penile penetration, penetration using any other body part, and mechanical penetration. Whether all of these offenses would constitute an aggravated felony under the Immigration and Nationality Act determines whether the categorical approach will allow for removal.

Although the INA defines “aggravated felony” to include “rape,” it does not define “rape.” The BIA also has not defined the term. This court therefore applies the term's “commonly understood legal meaning.” Martinez v. Mukasey, 519 F.3d 532, 540 (5th Cir.2008). In searching for such a meaning, we do not accept the common law's definition if that definition would be “inconsistent with the statute's purpose, notably where the term's definition has evolved.” United States v. Guidry, 456 F.3d 493, 509 (5th Cir.2006). We look for the modern and generic definition of the crime. Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir.2007). The source for such a definition allows consulting such sources as the Model Penal Code, LaFave and Scott's treatise on Criminal Law, and dictionaries. United States v. Herrera, 647 F.3d 172, 176 (5th Cir.2011). As we will explain, Congress seems to have stayed close to the common-law definition despite the fact that rape crimes defined by the states have a broader reach.

At common law, “rape” meant the “unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will” where there was “at least a slight penetration of the penis into the vagina.” Black's Law Dictionary (9th ed.2009). Implicit in this definition is that “sexual intercourse” only means penetration of the female sex organ by the male sex organ. This was the meaning as understood by Congress when it passed the federal rape law. See Oliver v. United States, 230 F. 971, 973 (9th Cir.1916). That understanding remained as time progressed. As the Senate Judiciary Committee explained in 1974, when it penned an exhaustive analysis of the nation's criminal laws, “current federal law does not define the offense of rape but instead relies upon its common law meaning to supply the necessary elements and definitions.” 3 Criminal Code Revision Compilation 595 Criminal Justice Reform Act of 1975, a Committee Print of the Senate Judiciary Committee, 94th Congress, December 1, 1975. The narrow reach of the law meant that “such major crimes as forcible sodomy” were not prohibited. Id.

In 1986, Congress passed a revision of the federal criminal law. This bill had two effects particularly important in this discussion. First, it repealed the federal rape law, then codified at 18 U.S.C. § 2031, replacing it with a ban on “aggravated sexual abuse or sexual abuse.” Pub.L. No. 99–646 § 87 (Nov. 10, 1986); see 18 U.S.C. §§ 2241; 2242. The new provision, Chapter 109A, criminalized various “sexual acts” rather than “rape.” Congress defined “sexual act” as:

(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

18 U.S.C. § 2246. At the same time, Congress amended 18 U.S.C. § 1153—the provision concerning rape or sodomy on Indian lands—by striking the Section's specific language. There was no longer any reference to “rape, involuntary sodomy, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, [and] assault with intent to commit rape.” In its place was a cross-reference to newly-minted Chapter 109A, the chapter concerning sexual abuse.

A decade later, Congress added rape to the list of aggravated felonies. Congress had limitless possibilities when drafting the amendment. It could have included “aggravated sexual assault,” “sexual abuse,” or a similar style of crime. Or, like it did with its amendment to 18 U.S.C. § 1153, it could have inserted a cross-reference to Chapter 109A. It did none of those things. Rather, Congress chose to add “rape.” See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104–208, § 321(a)(1).

Congress's understanding of the difference between “sexual assault” and “rape” was evident when it...