Restrepo v. Attorney Gen. Of The United States

• Decision Date: 16 August 2010
• Docket Number: No. 07-4741.,07-4741.
• Parties: Mario RESTREPO, Petitionerv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

617 F.3d 787

Mario RESTREPO, Petitionerv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 07-4741.

United States Court of Appeals Third Circuit.

Argued Jan. 26, 2010.

Filed Aug. 16, 2010.

COPYRIGHT MATERIAL OMITTED

Thomas E. Moseley, Esq. [Argued], Newark, NJ, for Petitioner.

Liza S. Murcia, Esq. [Argued], Ari Nazarov, Esq., Jennifer P. Williams, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before FUENTES and FISHER, Circuit Judges, and CONNER,^* District Judge.

OPINION OF THE COURT

CONNER, District Judge.

Petitioner Mario Restrepo (“Restrepo”), a native and citizen of Colombia and a lawful permanent resident of the United States, filed the instant petition to prevent his removal from this country based on the determination of the Board of Immigration Appeals (“BIA”) that he committed an “aggravated felony” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(A). In 1994, Restrepo was convicted of “aggravated criminal sexual contact” under N.J. Stat. Ann. § 2C:14-3(a). Restrepo argues that this conviction does not qualify as an aggravated felony under the Immigration and Nationality Act (“INA”). We disagree and, as a result, we conclude that we lack jurisdiction to review the BIA's final order of removal. See 8 U.S.C. § 1252(a)(2)(C). Restrepo also contends that the removal proceedings brought against him are time-barred, for they did not commence until a decade after his conviction was imposed. We reject this argument as well and we will dismiss Restrepo's petition.

I.

On March 22, 1994, Restrepo's daughter, Lina, was interviewed by the police. She disclosed that on several occasions her father had touched her breast and vagina through her clothing with his hands. Police questioned Restrepo about these accusations and he admitted that he first touched his daughter inappropriately in 1990, and he had done so intermittently for the next four years. Restrepo was charged with third degree aggravated criminal sexual contact in violation of N.J. Stat. Ann. § 2C:14-3(a). Under this statutory provision, “[a]n actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in 2C:14-2(2) through (7).” N.J. Stat. Ann. § 2C:14-3(a). Restrepo pled guilty to a state indictment which charged that he committed aggravated sexual contact with a victim of at least thirteen years of age, but less than sixteen years of age, a violation of 2C:14-2(2). He was sentenced to 364 days in prison and five years' probation. Restrepo has no criminal history which post-dates this conviction.

In 2004, ten years after his guilty plea, the United States Department of Immigration and Custom Enforcement (“USICE”) served Restrepo with a notice to appear and charged him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for commission of an aggravated felony, to wit: sexual abuse of a minor. Restrepo admitted the factual allegations contained in the notice to appear and conceded removability as charged, but he applied for a waiver of removability. A hearing on Restrepo's waiver request was held on December 23, 2004, after which the immigration judge found that Restrepo was removable and denied his application for waiver. Restrepo appealed this decision, and the BIA affirmed on February 17, 2006. Restrepo filed a petition for review, and he also filed a motion to reopen proceedings with the BIA, requesting that the BIA adjust his status to that of a lawful resident pursuant to 8 U.S.C. § 1255. The BIA denied Restrepo's motion to reopen on July 20, 2006. Thereafter, Restrepo filed a second petition with this Court, seeking review of the BIA's July 20 order. On August 11, 2006, the Court consolidated the petitions. The government then filed an unopposed motion for remand to the BIA on October 12, 2006. This motion was granted on April 11, 2007, and the BIA reaffirmed the decision of the immigration judge on November 30, 2007. Restrepo now presents the instant petition.

II.

We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a). Congress has stripped the Court of jurisdiction, however, to review an order to remove an alien who commits an aggravated felony. See § 1252(a)(2)(C). We nonetheless retain jurisdiction to address this jurisdictional prerequisite-or, more precisely, “whether an alien was convicted of a non-reviewable aggravated felony.” Stubbs v. Att'y Gen., 452 F.3d 251, 253 n. 4 (3d Cir.2006). The question of whether an alien's offense constitutes an aggravated felony is reviewed de novo as it implicates a purely legal question that governs the appellate court's jurisdiction. See Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.2002). In addition, we possess jurisdiction to hear “constitutional claims and questions of law presented in petitions for review of final removal orders,” even for those aliens convicted of an aggravated felony. Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). Our review of such claims is de novo. See De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir.2002). Restrepo's statute of limitations claim falls into this latter category.¹ Finally, in the proceedings below, the BIA adopted and affirmed the decision of the immigration judge and provided additional reasoning in support of its decision. Thus, we will review both the decision of the immigration judge and the decision of the BIA. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).

III.

This petition presents two principal issues for our consideration: (1) whether Restrepo is removable for conviction of an aggravated felony-specifically, sexual abuse of a minor, and (2) whether the removal proceedings against Restrepo are time-barred. The Court will address these issues in turn.

A. Was Restrepo Convicted of an Aggravated Felony?

The INA provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” applies not only to federal offenses, but also to violations of state law. See 8 U.S.C. § 1101(a)(43); Carachuri-Rosendo v. Holder, --- U.S. ----, 130 S.Ct. 2577, 177 L.Ed.2d 68, 78 n. 1 (2010). The INA defines aggravated felony to include inter alia, “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). The question sub judice is whether a conviction for aggravated criminal sexual contact, in violation of N.J. Stat. Ann. § 2C:14-3(a), constitutes the aggravated felony of sexual abuse of a minor under the INA.

The Supreme Court has recognized that several of the offenses listed in the INA-including sexual abuse of a minor-do not refer to “specific acts in which an offender engaged on a specific occasion,” or “the specific way in which an offender committed the crime,” but rather, they “must refer to generic crimes.” Nijhawan v. Holder, --- U.S. ----, 129 S.Ct. 2294, 2298, 2300, 174 L.Ed.2d 22 (2009). Accordingly, we employ the “categorical approach” of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether an alien's conviction constitutes sexual abuse of a minor under the INA. Nijhawan, --- U.S. at ----, 129 S.Ct. at 2300. The categorical approach requires a two step analysis: first, we must ascertain the definition for sexual abuse of a minor, and second, we must compare this “federal” definition to the state statutory offense in question-in this case, aggravated criminal sexual contact under N.J. Stat. Ann. § 2C:14-3(a). See Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir.2004). Ordinarily, the categorical approach “prohibits consideration of evidence other than the statutory definition of the offense, thus precluding review of the particular facts underlying a conviction.” See Stubbs, 452 F.3d at 253-54 (citing Singh, 383 F.3d at 147-48). However, where, as here, “a statute criminalizes different kinds of conduct, some of which would constitute [aggravated felonies] while others would not, the court must apply a modified categorical approach by which a court may look beyond the statutory elements to determine the particular part of the statute under which the defendant was actually convicted.” United States v. Stinson, 592 F.3d 460, 462 (3d Cir.2010). If conduct that meets the federal definition of sexual abuse of a minor is necessary for a conviction under N.J. Stat. Ann. § 2C:14-3(a), then Restrepo's conviction under N.J. Stat. Ann. § 2C:14-3(a) qualifies as a conviction for sexual abuse of a minor and, by extension, an aggravated felony for which he is removable. See Singh, 383 F.3d at 153 (“Of course it is irrelevant that sexually abusing a minor may be sufficient for conviction under the statute; what matters is whether such conduct is necessary for such a conviction.” (emphasis in original)). If, however, the offense prohibited by N.J. Stat. Ann. § 2C:14-3(a) is categorically broader than the federal definition of sexual abuse of a minor, then Restrepo's conviction does not render him removable.

1. Defining Sexual Abuse of a Minor

Our first task is to define the phrase “sexual abuse of a minor,” as used in § 1101(a)(43). The INA contains no definition of this phrase, but three United States Code sections-18 U.S.C. §§ 2242, 2243, and 3509(a)-include definitions of sexual abuse. Restrepo asserts that the proper definition of sexual abuse of a minor appears in § 2243. The government disagrees and contends that the definition of sexual abuse of a minor is not clear and unambiguous. Thus, the government argues that we must apply Chevron deference to the BIA's interpretation of this phrase, which is set forth in Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999). Under the familiar principles of Chevron, “considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.” ² Chevron...