Rangel-Perez v. Lynch

• Decision Date: 01 March 2016
• Docket Number: No. 14–9566.,14–9566.
• Citation: 816 F.3d 591
• Parties: Fabian RANGEL–PEREZ, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

816 F.3d 591

Fabian RANGEL–PEREZ, Petitioner,

v.Loretta E. LYNCH, United States Attorney General¹ , Respondent.

No. 14–9566.

United States Court of Appeals, Tenth Circuit.

March 1, 2016.

Aaron Tarin (Skyler Anderson with him on the reply brief), Immigrant Defenders Law Group, PPLC, Taylorsville, UT, for Petitioner.

Matthew A. Spurlock (Joyce R. Branda, Acting Assistant Attorney General, Daniel E. Goldman, Senior Litigation Counsel, and Mona Maria Yousif, Trial Attorney, on the briefs), United States Department of Justice, Washington, District of Columbia, for Respondent.

Before KELLY, EBEL, and LUCERO, Circuit Judges.

EBEL

, Circuit Judge.

Petitioner Fabian Rangel–Perez challenges the Board of Immigration Appeals' ("BIA") characterization of his Utah misdemeanor conviction as an "aggravated felony" under the Immigration and Nationality Act ("INA"). The BIA concluded that Rangel–Perez's Utah conviction for unlawful sexual activity with a minor fell within the INA's category of "aggravated" felonies that includes "sexual abuse of a minor" offenses. Rangel–Perez contends that his prior Utah conviction is not an "aggravated felony" under the INA because the INA's generic "sexual abuse of a minor" offense requires proof of both mens rea and a four-year age differential between the victim and the perpetrator, yet neither is an element of the Utah statute under which he was convicted. We agree with Rangel–Perez that the INA's category of "aggravated" felonies for "sexual abuse of a minor" includes only offenses that require proof of at least a "knowing" mens rea or scienter. We, therefore, conclude that Rangel–Perez's Utah conviction is not a "sexual abuse of a minor" offense under the INA. Thus, we reverse the BIA's decision to treat Rangel–Perez's prior conviction as an "aggravated felony" and we remand his case for further proceedings. Doing so, we need not decide whether the INA's generic "sexual abuse of a minor" offense also requires proof of a four-year age differential.

I. BACKGROUND

Rangel–Perez, a Mexican citizen, concedes that he is subject to removal from the United States because, as a child, his parents brought him to this country illegally. Nevertheless, Rangel–Perez asks the Attorney General to exercise her discretion and cancel his removal, see 8 U.S.C. § 1229b(b)(1)

. Under the INA, Rangel–Perez is not eligible for this discretionary relief from removal if he has been convicted of an "aggravated felony." Id. §§ 1227(a)(2)(A)(iii), 1229b(b)(1)(C).

The INA defines aggravated felonies in categories, id. § 1101(a)(43); the specific category at issue here includes state and federal offenses for "sexual abuse of a minor," id. § 1101(a)(43)(A).

The BIA determined that Rangel–Perez had a prior conviction for such a disqualifying "aggravated felony" because he was previously convicted of the misdemeanor offense of "unlawful sexual activity with a minor" in violation of Utah Code § 76–5–401

. That state statute provides:

(1) For purposes of this section "minor" is a person who is 14 years of age or older, but younger than 16 years of age, at the time the sexual activity described in this section occurred.

(2) A person commits unlawful sexual activity with a minor if, under circumstances not amounting to rape, in violation of Section 76–5–402, object rape, in violation of Section 76–5–402.2, forcible sodomy, in violation of Section 76–5–403, or aggravated sexual assault, in violation of Section 76–5–405, the actor:

(a) has sexual intercourse with the minor;

(b) engages in any sexual act with the minor involving the genitals of one person and the mouth or anus of another person, regardless of the sex of either participant; or

(c) causes the penetration, however slight, of the genital or anal opening of the minor by any foreign object, substance, instrument, or device, including a part of the human body, with the intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, regardless of the sex of any participant.

(3) A violation of Subsection (2) is a third degree felony unless the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred, in which case it is a class B misdemeanor.

Rangel–Perez, at age nineteen, pled guilty to a misdemeanor violation of this Utah statute, and served two days in jail and one year of probation. The Government does not dispute that this misdemeanor conviction was based on Rangel–Perez having sex with his long-time girlfriend, who later became the mother of his child. Based on information in the administrative record, Rangel–Perez was nineteen at the time of his Utah offense, and his girlfriend would apparently have been fifteen.

II. DISCUSSION

A. The categorical approach

We apply a "categorical" approach to determine whether Rangel–Perez's misdemeanor Utah conviction for "unlawful sexual activity with a minor" is an "aggravated felony" because it falls within the INA's category of "sexual abuse of a minor" offenses. See Moncrieffe v. Holder, –––U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013)

.

Under this approach we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the "generic" federal definition of a corresponding aggravated felony. By "generic," we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense "necessarily" involved facts equating to the generic federal offense.

Id. (citations, internal quotation marks, alteration omitted). To apply the categorical approach, then, we compare the elements of the Utah statute under which Rangel–Perez was convicted with the elements of the INA's generic "sexual abuse of a minor" offense. See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 2285, 186 L.Ed.2d 438 (2013)

.²

B. The elements of the INA's generic "sexual abuse of a minor" offense include at least a "knowing" mens rea

The first question we consider, then, in applying the categorical approach in this case, is whether the INA's category of "aggravated" felonies that includes generic "sexual abuse of a minor" offenses requires a mens rea element and, if so, the degree of mens rea required.

1. Congress has not explicitly addressed the elements of the INA's "aggravated felony" for "sexual abuse of a minor"

The question of whether the INA's generic "sexual abuse of a minor" offense includes a mens rea element is a matter of statutory construction. Congress used over twenty categories (plus subcategories) of criminal offenses (state or federal) to define "aggravated felony" for purposes of the INA. See 8 U.S.C. § 1101(a)(43)(A)-(U)

. In defining some of these categories of "aggravated" felonies, Congress explicitly cross-referenced specific federal criminal statutes. For example, § 1101(a)(43)(B) sets forth the category of "aggravated" felonies for "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)."

But Congress did not cross-reference a federal statute for every one of the INA's categories of "aggravated" felonies. The category at issue here, for instance—"sexual abuse of a minor" offenses—does not cross-reference any federal statute. Nor did Congress otherwise expressly indicate what the elements of the INA's generic "sexual abuse of a minor" offense are or where a court should look to find those elements. We, therefore, cannot rely on the INA's language alone to determine the elements of that statute's generic "sexual abuse of a minor" offense. See Restrepo v. Att'y Gen., 617 F.3d 787, 792–95 (3d Cir.2010)

(holding that Congress did not plainly and unambiguously indicate in the INA what it meant by the generic offense of "sexual abuse of a minor"); see also Amos v. Lynch, 790 F.3d 512, 518 (4th Cir.2015) ; Velasco–Giron v. Holder, 773 F.3d 774, 776 (7th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 2072, 191 L.Ed.2d 956 (2015) ; Contreras v. Holder, 754 F.3d 286, 292 (5th Cir.2014) ; Mugalli v. Ashcroft, 258 F.3d 52, 56 (2d Cir.2001). But see Estrada–Espinoza v. Mukasey, 546 F.3d 1147, 1152, 1155–56, 1157 n. 7 (9th Cir.2008) (en banc) (holding that the INA's language, "sexual abuse of a minor," clearly refers to 18 U.S.C. § 2243

's substantive federal "sexual abuse of a minor" criminal offense), overruled on other grounds by United States v. Aguila–Montes de Oca, 655 F.3d 915, 916–17, 919–26 (9th Cir.2011) (en banc) (addressing when modified categorical approach applies), which was itself abrogated by Descamps, 133 S.Ct. at 2282–83 (same).

2. Chevron deference to the BIA's interpretation of the INA is not warranted in this case

Where, as here, Congress has left a gap or an ambiguity in a statute, courts will defer to the interpretation of that statute by the administrative agency that Congress has charged with administering the statute, if the agency's statutory interpretation is reasonable. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)

. In this case, the Government contends that the BIA has determined that the INA's category of "aggravated" felonies for "sexual abuse of a minor" offenses does not require proof of any mens rea and, under Chevron, we must defer to that determination. We cannot agree.

a. Courts generally defer to the BIA's reasonable interpretation of the INA

Congress charged the Attorney General with administering the INA, and the Attorney General delegated that duty to the BIA. See Negusie v. Holder, 555 U.S. 511, 516–17, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2...