Valencia v. Gonzales

• Citation: 439 F.3d 1046
• Decision Date: 06 March 2006
• Docket Number: No. 03-72028.,03-72028.
• Parties: Victor B. VALENCIA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

439 F.3d 1046

Victor B. VALENCIA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-72028.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2004.

Filed March 6, 2006.

James Todd Bennett, El Cerrito, California, for the petitioner.

Peter D. Kiesler, Donald E. Keener, Greg D. Mack, Office of Immigration Litigation, Washington D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A70-972-808.

Before: DIARMUID F. O'SCANNLAIN, ROBERT E. COWEN,^* and CARLOS T. BEA, Circuit Judges.

ORDER AND OPINION

BEA, Circuit Judge.

ORDER

The opinion filed on December 12, 2005, and reported at 431 F.3d 673, is hereby withdrawn and replaced by the opinion filed concurrently with this order. Further petitions for rehearing and for rehearing en banc will be accepted, and the time for filing petitions for rehearing shall run anew commencing on the filed date of the substituted opinion. See Fed. R.App. P. 40(a)(1) and 35(c).

OPINION

Victor Valencia, a native and citizen of Peru, petitions for review from the Board of Immigration Appeals' ("BIA") order summarily affirming the Immigration Judge's ("IJ") order of removal. Valencia was convicted of felony¹ unlawful sexual intercourse with a person under eighteen, who was more than three years younger than he, in violation of California Penal Code section 261.5(c). The IJ found Valencia removable for having committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), holding the crime constituted a crime of violence under 8 U.S.C. § 1101(a)(43)(F), which defines a crime of violence pursuant to 18 U.S.C. § 16.

Our jurisdiction is controlled by 8 U.S.C. § 1252. We grant the petition for review and hold that a violation of California Penal Code section 261.5(c) does not constitute a crime of violence under 18 U.S.C. § 16.

I

On May 29, 1997, Valencia pleaded guilty to a felony violation of California Penal Code section 261.5(c). The imposition of his sentence was suspended for a period of five years, during which time he was placed on probation on the condition that he serve one year in the county jail. At the change of plea hearing, the judge specifically advised, and Valencia acknowledged, that this conviction could be used to deport him.

Valencia was charged in the notice to appear with being removable as an aggravated felon for committing sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), and for committing a crime of violence under 8 U.S.C. § 1101(a)(43)(F).

II

The IJ found Valencia removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii), holding the crime constituted a crime of violence under 8 U.S.C. § 1101(a)(43)(F), as defined in 18 U.S.C. § 16.

The IJ dismissed the charge that Valencia was removable for having committed sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A). The government does not cross-appeal this dismissal.

The BIA summarily affirmed the IJ's ruling.

III

We do not have jurisdiction to review the propriety of any final order of removal against an alien who is ordered removed for having committed an aggravated felony covered in 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1252(a)(2)(c); Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000); Aragon-Ayon v. INS, 206 F.3d 847, 849-50 (9th Cir. 2000). We do, however, have jurisdiction to consider the limited question of whether a crime is an aggravated felony. Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1065 (9th Cir. 2003). For the reasons discussed below, we hold that Valencia's crime was not an aggravated felony.

IV

Under the "categorical approach" laid out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), a violation of section 261.5(c) qualifies as a crime of violence and hence as an aggravated felony "if and only if the full range of conduct covered by it falls within the meaning of that term." United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (citation omitted).

Under 8 U.S.C. § 1227(a)(2)(A)(iii) "an alien who is convicted of an aggravated felony at any time is deportable." 8 U.S.C. § 1101(a)(43)(F) defines an aggravated felony as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year."

Section 16 of Title 18 in turn defines a crime of violence as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (emphasis added). The "physical force" necessary to constitute a crime of violence under 18 U.S.C. § 16(b) must be violent in nature. Ye v. INS, 214 F.3d 1128, 1133 (9th Cir. 2000).

The statute to which Valencia pleaded guilty provided:

Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

Cal.Penal Code § 261.5(c) (1997).

Section 261.5(c) does not have "as an element the use, attempted use, or threatened use of [violent] physical force against the person or property of another." 18 U.S.C. § 16(a). Therefore, under the Taylor categorical approach, we consider whether the "full range of conduct" covered by section 261.5(c), see Baron-Medina, 187 F.3d at 1146, "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b).

This circuit has not considered whether statutory rape "by its nature, involves a substantial risk that physical force may be used against the person or property of another in the course of committing the offense." 18 U.S.C. § 16(b). In Lisbey v. Gonzales, 420 F.3d 930, 933 (9th Cir. 2005), we held the crime of sexual battery involves a substantial risk of the use of physical force. The sexual battery statute at issue in Lisbey criminalized the sexual touching of another who is "unlawfully restrained by the accused or an accomplice" when the touching is against the victim's will. See id. at 932; Cal. Pen.Code § 243.4(a) (West 2005) (defining the crime of sexual battery). Even though the use of force is not an element of sexual battery under California law, see id.; United States v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir. 2005), sexual battery nonetheless requires unlawful restraint and an act against the victim's will. Lisbey, 420 F.3d at 932-33. Because sexual battery involves both unlawful restraint and an act against the victim's will, "[it] creat[es] a substantial risk of resistance by the victim and the use of physical force by the perpetrator." Id. at 932 (citing the BIA's decision). Accordingly, we held that sexual battery is categorically a crime of violence under § 16(b).

In Lisbey, we noted approvingly cases from other circuits which establish that sexual acts, without the victim's consent, constitute crimes of violence under § 16(b). See id. at 933 (citing approvingly Zaidi v. Ashcroft, 374 F.3d 357, 361 (5th Cir. 2004) (per curiam) (lewd or lascivious touching of an adult without his or her consent); Sutherland v. Reno, 228 F.3d 171, 176 (2d Cir. 2000) (indecent assault and battery on a person over the age of fourteen which requires the victim's actual non-consent as an element); United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993) (holding that attempted sexual abuse of a child under the age of fourteen is a crime of violence)). These cases, taken together, establish that the "non-consent of the victim" is the "touchstone" for determining whether a conviction constitutes a crime of violence under § 16(b). See Lisbey, 420 F.3d at 933. The rationale behind this rule is that a touching without the victim's consent "presents a substantial risk that force may be used to overcome the victim's lack of consent and accomplish the indecent touching." See Sutherland, 228 F.3d at 176.

None of our sister circuits has considered whether consensual sexual intercourse with a minor between the ages of seventeen and eighteen is a crime of violence under § 16(b). The Fifth Circuit has held that the crime of "indecent sexual contact" with a minor younger than seventeen is categorically a crime of violence under § 16(b). See United States v. Velazquez-Overa, 100 F.3d 418, 422-23 (5th Cir. 1996). Likewise, the Second and Eleventh Circuits have held felonies involving sexual contact with victims who are younger than sixteen, or otherwise incapacitated, are crimes of violence under § 16(b). See Chery v. Ashcroft, 347 F.3d 404, 408-09 (2d Cir. 2003); Ramsey v. INS, 55 F.3d 580, 583 (11th Cir. 1995) (per curiam). The Eighth and Tenth Circuits have held that felonies involving sexual abuse of children younger than fourteen are crimes of violence under § 16(b). See United States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999) (per curiam); Reyes-Castro, 13 F.3d at 379.

The Seventh Circuit, by contrast, has held that statutory rape of a fifteen-year-old is not categorically a crime of violence under § 16(b), and employed modified categorical analysis to consider the age of the victim, the age difference between the victim and perpetrator, and the nature of sexual activity. See Xiong v. INS, 173 F.3d 601, 607 (7th Cir. 1999); see also United States v. Shannon, 110 F.3d 382, 385 (7th Cir. 1997) (en banc) (rejecting the argument, in a case involving U.S.S.G. § 4B1.2 that "any felonious sexual act with a minor should be deemed [] to involve force, because the minor is incapable of giving legally recognized consent").

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