· u.s. Department of Justice

Decision oftbe Board of lmmjgration Appeals

Executive Office for Immigration Review Falls Church, Virginia 20530

File:

Seattle, WA

Date:

AUG 21 Z014

In re:

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Robert L. Jaeggli, Esquire ON BEHALF OF DRS:

Mark Rardy Assistant Chief Counsel

CHARGE: Notice: Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)]Convicted of aggravated felony under section 101(a)(43)(A) of the Act

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] Convicted of aggravated felony under section 101(a)(43)(U) of the Act

Sec.

237(a)(2)(E)(i), I&N Act [8 U.S.C. § 1227(a)(2)(E)(i)]Convicted of crime of domestic violence, stalking, or child abuse, child neglect, or child abandonment

APPLICATION: Tennination; cancellation of removal

The Department of Homelaod Security ("DHS') has charged the respondent with removability from the United States as an alien convicted of an "aggravated felony" and a "crime of child abuse." See sections 237(a)(2)(A)(iii) aod 237(a)(2)(E)(i) of the Immigration aod Nationabty Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii), (E)(i), respectively. In decisions dated July 20, 2012, aod September 18, 2012, an Immigration Judge sustained the aggravated felony charge, dismissed the crime of child abuse charge, and ordered the respondent removed to Mexico. The respondent has appealed from the Immigration Judge's decision sustaining the aggravated felony charge, while the DHS has cross-appealed from the dismissal of the crime of child abuse charge. The respondent's appeal will be sustained, the DHS's appeal will be dismissed, and the removal proceedings will be terminated. The respondent is a native and citizen of Mexico and a lawful permanent resident of the United States. In June 2008, the respondent was convicted in Washington of attempted child molestation in the third degree, see Wash. Rev. Code §§ 9A.28.020(1) aod 9A.44.089(1). At the time of the respondent's offense and conviction Washington law provided that.

A person is guilty of child molestation in the third degree when the person has, or knowingly causes another person under the age of eighteen to have,

sexual contact with another who is at least fowieen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim. Wash. Rev. Code § 9A.44.089(1). To he guilty of an "attempt," a Washington defendant must,

''with intent to commit a specific crime, ... do(] any act which is a substantial step toward the commission of that crime." Wash. Rev. Code § 9A.28.020(1).

The respondent's appeal asks us to decide whether this conviction renders him removable as an alien convicted of an aggravated felony; while the DHS's appeal asks us to decide whether it renders him removable as an alien convicted ofa crime of child abuse. We review both questions de novo. See 8 C.F.R. § 1003.I(d)(3)(ii). 1. THE "AGGRAVATED FELONY" CHARGE The Immigration Judge found that attempted child molestation in the third degree under Wash. Rev. Code §§ 9A.28.020(l) and 9A.44.089(l) is a categorical aggravated felony under sections IOI(a)(43)(A) and 101(a)(43)(U) of the Act, 8 U.S.C. §§ 1101(a)(43)(A), (U), that is, an

"attempt" to commit "sexual abuse of a minor." Although the offense in question would likely qualify as an aggravated felony under this Board's own standard for deciding whether a crime is a "sexual abuse of a minor" offense, see Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BtA 1999), it does not so qualify under the controlling precedents of the United Srates Court of Appeals for the Ninth Circuit. The Ninth Circuit does not defer to Rodriguez-Rodriguez, moreover, see Estrada-Espinoza Y. Muka.sey, 546 F.3d 1147, 1157-58 (9th Cir. 2008) (en hanc),

and therefore we will dismiss the aggravated felony charge in accordance with Ninth Circuit law. A. Estrada-Espinoza v. MuJcasey

The Ninth Circuit has adopted tv.'o overlapping definitions of the phrase "sexual abuse of a minor," as it is used in section IOI(a)(43)(A) of the Act. The first definition, which applies to

statutes encompassing conduct which the Ninth Circuit deems akin to "statutory rape," incorporates the definition of "sexual abuse of a minor" set forth at 18 U.S.C. § 2243(a), which

requires four elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor. See Estrada-Espinoza v. Mukasey, supra, at 1152, 1156. The offense defined hy Wash. Rev. Code § 9A.44.089(1) satisfies the first, third, and fourth

elements of the Estrada-Espinoza test, but it does not satisfy the second-i.e., the requirement of a "sexual act." As the Ninth Circuit bas clarified, the phrase "sexual act" takes its meaning from 18 U.S.C. § 2246(2), which "requires, at a minimum, an intentional touching, not through the clothing, ofa minor's genitalia." United States Y. Castro, 607 F.3d 566,569-70 (9th Cir. 2010). The phrase "sexual contact," as defined hy Wash. Code § 9A.44.01O(2), encompasses touchings through clothing of "intimate parts" other than the genitalia. See, e.g., Srate Y. Harstad, 218 P.3d 624, 628-29 (Wash. Ct. App. 2009); State Y. Powell, 816 P.2d 86, 88 & n. 3 (Wash. Ct. App. 1991), rev. denied, 824 P.2d 491 (Wash. 1992). Accordingly, the respondent's offense of conviction is not a categorical "sexual abuse gf a minor" offense under the Estrada-Espinoza test.

2

"

The offense defined by Wasb. Rev. Code § 9A.44.089(l) is also oat "divisible" vis-i-vis the definition of "sexual abuse of a minor" adopted in Estrada-Espinoza, so as to warrant a "modified categorical" inquiry of the sort described in Shepard v. United States. 544 U.S. 13 (2005). During the pendency of this appeal, the Supreme Court held that a modified categorical inquiry is permissible only if the statute of conviction lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," more than one combination of which could support a conviction, and some (but not all) of those listed offenses or combinations of disjunctive elements are a categorical match to the relevant generic standard. Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013). Thus, a modified categorical inquiry is not permitted merely because the elements of a crime can . sometimes be proved by reference to conduct that fits a generic federal standard; under Descamps such crimes are "overbroad," but not "divisible." Jd. at 2285-86, 2290-92. Although some violations of Wash. Rev. Code § 9A.44.089(I) likely involve conduct in which an adult touches a juvenile's genitalia directly (tather than through clothing), thereby satisfying Estrada-Espinoza's definition of a "sexual act," that fact alone merely makes the statute "overbroad" under Descamps. The statute is "divisible" under Descamps only if Washington law defines "touchings through clothing" and "direct toucbings" (or '
Although Wash. Rev. Code § 9A.44.089(1) is not a sexual abuse of a minor aggravated felony under the Estrada-Espinoza test, the Ninth Circuit held in United States v. Medina-Villa, 567 F.3d 507, 516 (9th Cir. 2009), that Estrada-Espinoza applies only to predicate offenses that are akin to "statutory rape," and that a residual category of «sexual abuse of a minor" exists that encompasses statutes where (1) ''the conduct proscribed ... is sexual;" (2) ''the statute protects a minor;" and (3) ..the statute requires abuse." [d. at 513-14. The offense defined by § 9A.44.089(1) satisfies the first and second prongs of the Medina-Villa test, but it does not satisfy the third-i.e., that the statute require "abuse." In a series of precedent decisions, the Ninth Circuit has held that a statute proscribing se?,ual contact between an adult and a juvenile satisfies the "abuse" criterion of Medina- Villa only if the statute

3

.

.

requires that the victim was less than 14 years old when the sexual act occurred. See, e.g., United States v. Sullivan, --- F.3d ----, Nos. 12-10196, 12-10217, slip op. at 24-25, 2014 WL 2199316, at *10 (9th Cir. May 28, 2014); United States v. Gomez, --- F.3d ----, No. 11-30262, slip op. at 37, 2014 WL 1623725, at *14 (9th Cir., April 24, 2014); United States v. Farmer, 627 F.3d 416, 419-20 (9th Cir. 2010); United States v. Valencia-Barragan, 608 F.3d 1103, 1107 & n. 2 (9th Cir. 2010); United States v. Castro, supra, at 568-69; Pelaya-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir. 2009). The offense defined by Wash. Rev. Code § 9A.44.089(1)

does not satisfy that requirement because it applies only to victims who were 14 or 15 years old when the prohibited sexual contact occurred. As § 9A.44.089(1) never applies to conduct involving sexual contact between adults and children under 14, it follows that the statute is not

"divisible" vis-a.-vis the Medina- Villa definition of sexual abuse of a minor.

c. In conclusion, the offense

Conclusion

ofthird~degree child

molestation in violation of Wash. Rev. Code

§ 9A.44.089(1) is not an aggravated felony under section 101(a)(43)(A) in removal proceedings arising within the jurisdiction of the Ninth Circuit because its elements do not correspond to either of the Ninth Circuit's controlling definitions of the phrase "sexual abuse of a minOr.,,1

Thus, an attempt to commit that offense is also not an aggravated felony under section 101(a)(43)(U) of the Act. Under the circumstances, we will vacate the Immigration Judge's decision in part and dismiss the aggravated felony charge. II. THE CRIME OF CRUD ABUSE CHARGE Having determined that the respondent's conviction does not render him removable as an alien convicted of an aggravated felony in the Ninth Circuit, we tum to the DRS's cross-appeal, which argues that the offense defined by Wash. Rev. Code §§ 9A.28.020(1) and 9A.44.089(1) is a "crime of child abuse" under section 237(a)(2)(E)(i) of the Act. Like the Immigration Judge, we conclude that it is not.

At the outset, we acknowledge Jimenez-Juarez v. Holder, 635 F.3d 1169 (9th Cir. 2011), which held that Wash. Rev. Code § 9A.44.089(1) defines a categorical "crime of child abuse," a phrase which encompasses any intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such a person's physical or mental well-being, including sexual abuse or exploitation, whether or not the act or omission results in the actual infliction of harm or inj ury to the child victim. See I In its appellate brief. the DRS maintains that the offense defined by Wash. Rev. Code § 9A.44.089(1) "mirrors" the federal offense of "abusive sexual contact," 18 US.C § 2244(a)(3), which the Ninth Circuit held was a "sexual abuse of a minor" offense in United States v. Granbois, 376 F.3d 993, 996 (9th Cir. 2004). Although we acknowledge Granbois (which has not been expressly overruled by the Ninth Circuit) and the similarity between the offense at issue in that case and the one defined by Wash. Rev. Code § 9A.44.089(1), we are unable to apply the Granbois court's 2004 holding-which was announced without significant discussion and which has oever been repeated sincl>-becanse it is flatly inconsistent with those adopted in 2008 by the en banc Estrada-Espinoza court and by the numerous Ninth Circuit panels which have applied - Medina-Villa since 2009.

4

Matter of Soram, 25I&N Dec. 378, 380-81 (BIA 2010); Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008). Here, however, we are not presented with an alien who was

convicted of a completed child molestation offense; instead, the respondent was convicted of attempting to commit such an offense - that is, of failing to consummate an act of child molestation despite specifically intending to commit such an act and despite having engaged in conduct which constituted a "substantial step" toward its commission. Wash. Rev. Code § 9A.28.020(1).

We agree with the Immigration Judge that the respondent's attempt conviction does not qualify as a categorical "crime of child ahuse," despite the fact that the completed offense would have so qualified, because the full range of conduct punishable as an attempted child molestation offense under Washington law would Dot constitute maltreatment of a child or otherwise expose a child to an unreasonable risk of harm. As the respondent points out on appeal, a person may be successfully prosecuted in Washington for an attempted sex offense against a minor even if the "minor" in question was in fact an adult or a fictitious creation of an undercover police officer. E.g., State v. Johnson, 270 P.3d 591 (Wash. 2012) (defendant convicted of attempted promotion of commercial sexual abuse of a minor where defendant mistakenly believed that the intended victim was a minor); State v. Townsend, 57 PJd 255 (Wash. 2002) (defendant convicted of attempted rape of a child where the "child" was an undercover police officer posing as a fictitious child); State v. Wi/son, 242 P.3d 19 (Wash. Ct. App. 2010) (same). Such offenses do not qualify as crimes of child abuse. 2

Although some attempted child molestation offenses under Washington law would not qualify as crimes of child abuse under section 237(a)(2)(E)(i), it is possible that some such

offenses would so qualify, such as where a defendant makes a threatening sexual overture to a child but is prevented by a third person from making sexual contact. For the reasons already discussed in the "aggravated felony" portion of this decision, however, the fact that some conduct covered by Washington's attempt statute may constitute a crime of child abuse is not sufficient to render the statute "divisible" under Descamps, so as to invite an inquiry into the record of conviction. Such an inquiry would only be permissible under Descamps if the attempt statute were divided into disjunctive sets of "elements," some of which defined categorical crimes of child abuse and some of which did not. Washington's attempt and child molestation

statutes are not structured that way, and therefore we conclude that the "modified categorical approach" does not apply here. In sum, the DHS has not proven by clear and convincing evidence that the offense underlying the respondent's conviction under Wash. Rev. Code §§ 9A.28.020(1) and 9A.44.089(1) qualifies as a crime of child abuse within the meaning of section 237(a)(2)(E)(i) of the Act.

Congress has included language in several criminal grounds of deportahility to make clear its intention to include attempt and conspiracy offenses. E.g., sections 237(a)(2)(B)(i), 237(a)(2)(O), 237(a)(3)(B)(ii), and 237(a)(3)(B)(iii) of the Act. Significantly, section 237(a)(2)(E)(i) contains 2

no such language.

5

·

,

III. CONCLUSION In conclusion, Ninth Circuit law precludes the respondeat from being removable as an alien

convicted of an aggravated. felony within that circuit. Furthermore, the respondent's attempt offense of conviction does not qualify as a crime of child abuse. Accordingly, the charges of removability under sections 237(a)(2)(A)(iii) and 237(a)(2)(E)(i) of the Act will be dismissed. No other charges are pending against the respondent, moreover. and therefore the removal proceedings will be terminated. '

ORDER: The respondeat's appeal is sustained. FURTHER ORDER: The Departmeat of Homeland Security's appeal is dismissed. FURTHER ORDER: The removal proceedings are terminated.

6