Vargas v. Department of Homeland Security , 451 F.3d 1105 ( 2006 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    June 21, 2006
    UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    M AURICIO VARG AS,
    Petitioner,
    v.                                            No. 05-9581
    D EPA RTM EN T O F H O ME LA ND
    SECURITY; M ARIO ORTIZ, Interim
    District Director, in his official
    capacity only; EXECUTIVE OFFICE
    OF IM M IGRATION REVIEW ;
    ALBERTO R. GONZALES, Attorney
    General,
    Respondents.
    PETITIO N FO R R EV IEW O F A N O RD ER OF
    THE BOA RD O F IM M IGR ATION APPEALS *
    (B.I.A. NO . A 76-263-576)
    Submitted on the briefs:
    Patrick C. Hyde, Denver, Colorado, for Petitioner.
    Jennifer L. Lightbody, Attorney, (Stephen J. Flynn, Senior Litigation Counsel,
    with her on the brief), Office of Immigration Litigation, Civil Division, U.S.
    Department of Justice, W ashington, D.C., for Respondent.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
    HA RTZ, Circuit Judge.
    Under 
    8 U.S.C. § 1227
    (a)(2)(A)(iii), “[a]ny alien who is convicted of an
    aggravated felony at any time after admission is deportable.” The term
    aggravated felony encompasses, among other things, “sexual abuse of a minor.”
    
    8 U.S.C. § 1101
    (a)(43)(A). M auricio Vargas was ordered removed from the
    country following a state conviction in Colorado for contributing to the
    delinquency of a minor. He challenges the validity of his guilty plea in state
    court, but we hold that we have no authority to address that claim in this
    proceeding. He also contends that the Board of Immigration Appeals (BIA) erred
    in concluding that his offense was an aggravated felony. W e have jurisdiction to
    resolve this legal dispute under 
    8 U.S.C. § 1252
    (a)(2)(D ). Because the state
    charge against M r. Vargas was for contributing to the delinquency of a minor by
    inducing the minor to engage in unlawful sexual contact, we hold that he was
    found guilty of an aggravated felony.
    I.    B ACKGR OU N D
    M r. Vargas seeks review of a final order of removal issued by the BIA on
    September 6, 2005. He is a native and citizen of M exico. He became a lawful
    permanent resident of this country on April 26, 1999. In October 2000 he was
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    charged in Colorado state court with three counts of sexual assault on a child.
    The State later added a fourth count that alleged that he “did unlawfully,
    knowingly and feloniously induce, aid and encourage a child to violate a state
    law , to-wit: UNLAW FUL SEXUAL CONTACT; C.R.S. 18-3-404(1)(a); in
    violation of Section 18-6-701, C .R.S.; CONTRIBUTING TO THE
    DELINQUENCY OF A M INOR.” R. at 76. Under a plea agreement he pleaded
    guilty to count four and the first three counts were dismissed.
    In M arch 2005 M r. Vargas received a notice to appear before an
    immigration judge (IJ) to show why he should not be removed from the country
    under the Immigration and Naturalization Act (INA) § 237(a)(2)(A)(iii), 
    8 U.S.C. § 1227
    (a)(2)(A)(iii), because of this conviction. At a removal hearing on April 6,
    2005, he admitted the factual allegations in the notice to appear but contended
    that he was not removable because he had pleaded guilty only to contributing to
    the delinquency of a minor, w hich, he contended, is not an aggravated felony.
    The IJ disagreed, stating that “the crime of contributing to the delinquency of a
    minor is an aggravated felony where the respondent was found guilty of
    know ingly inducing or aiding a child to commit sexual contact.” R. at 45. On
    April 12, 2005, M r. V argas was ordered removed to M exico.
    M r. Vargas appealed the IJ’s ruling to the BIA, which affirmed, stating:
    The Colorado offense of contributing to the delinquency of a minor
    does not qualify categorically as “sexual abuse of a minor” because
    there are many ways of committing that offense, only some of which
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    involve sexual abuse. In such cases, we are authorized to consult a
    limited number of judicially-noticeable documents, such as a
    charging document or plea agreement, to determine whether an
    alien’s conviction under a facially overbroad statute was nevertheless
    a conviction for an aggravated felony. Cf. Shepard v. United States,
    
    125 S. Ct. 1254
    , 1260 (2005). The charging document in this case
    . . . makes it quite clear that the respondent’s contributing-to-the-
    delinquency-of-a-minor offense conforms to the generic concept of
    “sexual abuse of a minor” set forth at section 101(a)(43)(A).
    Id. at 3. M r. Vargas seeks review of the BIA’s ruling. W e conclude that the BIA
    properly determined that M r. Vargas committed an aggravated felony and
    therefore affirm the removal order.
    II.   D ISC USSIO N
    M r. Vargas challenges both his state-court conviction and its
    characterization as an aggravated-felony conviction. He raises two due-process
    claims with respect to his conviction. First, he asserts that his attorney during the
    state criminal proceedings told him that pleading guilty to contributing to the
    delinquency of a minor would not subject him to deportation. Because of this
    misleading statement, he contends, he “has the right to withdraw his guilty plea.”
    Aplt. Br. at 13. Second, he contends that it was unconstitutional for the state
    court to accept his guilty plea because he continually maintained his innocence.
    W hether these contentions have merit or not, we cannot address them. They are
    beyond the scope of these proceedings. A “petitioner cannot collaterally attack
    the legitimacy of his state criminal convictions in the deportation proceedings.
    Thus, it is irrelevant for our purposes that an attorney might successfully have
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    applied for the withdrawal of the guilty plea[ ] . . . .” Trench v. INS, 
    783 F.2d 181
    , 183 (10th Cir. 1986).
    W e can, however, review his contention that the offense of contributing to
    the delinquency of a minor is not an aggravated felony. For several years our
    review of removal orders based on aggravated felonies was extremely limited.
    The Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.
    No. 104-208, 
    110 Stat. 3009
    , enacted in 1996, added 
    8 U.S.C. § 1252
    (a)(2)(C),
    stating:
    Notwithstanding any other provision of law . . . , no court shall
    have jurisdiction to review any final order of removal against an
    alien who is removable by reason of having comm itted a criminal
    offense covered in section 1181(a)(2) or 1227(a)(2)(A)(iii), (B), (C),
    or (D) of this title, or any offense covered by section
    1227(a)(2)(A)(ii) of this title for which both predictate offenses are,
    without regard to their date of commission, otherwise covered by
    section 1227(a)(2)(A)(i) of this title.
    (emphasis added). In 2001 we held that this provision left us with jurisdiction
    only to determine our jurisdiction; that is, once we determined that the petitioner
    was (i) an alien (ii) deportable (iii) by reason of having comm itted an aggravated
    felony, our jurisdiction was at an end and we would dismiss the petition for
    review. See Tapia Garcia v. INS, 
    237 F.3d 1216
    , 1220 (10th Cir. 2001). But the
    REAL ID Act of 2005, Pub. L. No. 109-13, 
    119 Stat. 231
    , partially restored our
    jurisdiction. Now, new subparagraph (D) of § 1252 (a)(2) overrides
    subparagraph (C) so that we can review “constitutional claims or questions of
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    law” raised in a petition for review of a removal order, even in an aggravated-
    felony case. 
    8 U.S.C. § 1252
    (a)(2)(D ); see Papageorgiou v. Gonzales, 
    413 F.3d 356
    , 358 (3rd Cir. 2005) (“This now permits all aliens, including criminal aliens,
    to obtain review of constitutional claims and questions of law upon the filing of a
    petition for review . . . .”). Because M r. Vargas’s challenge to the
    characterization of his conviction raises such a question of law, we have
    jurisdiction to review it. See Ali v. U.S. Att’y Gen., 
    443 F.3d 804
    , 809 (11th Cir.
    2006) (reviewing under subparagraph (D) a claim that guilty plea in state court
    did not constitute a “conviction” for purposes of the IN A).
    The definition of aggravated felony in 
    8 U.S.C. § 1101
    (a)(43)(A) includes
    “sexual abuse of a minor.” A lthough M r. Vargas challenges the BIA’s
    classification of his conviction as sexual abuse of a minor, he does not challenge
    the BIA’s definition of sexual abuse of a minor, which is borrowed from
    
    18 U.S.C. § 3509
    . That statute defines sexual abuse to include “the employment,
    use, persuasion, inducement, enticement, or coercion of a child to engage in, or
    assist another person to engage in, sexually explicit conduct or the rape,
    molestation, prostitution, or other form of sexual exploitation of children, or
    incest w ith children.” 
    18 U.S.C. § 3509
    (a)(8); see M atter of Rodriguez-
    Rodriguez, 
    22 I. & N. Dec. 991
    , 995-96 (BIA 1999) (adopting statutory definition
    “as a guide”). Instead, he challenges whether the BIA could properly determine
    that his offense involved the sexual abuse of a minor by looking to the allegations
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    in the charging document rather than confining itself to the statutory definition of
    contributing to the delinquency of a minor.
    M r. Vargas contends that to determine whether a prior conviction qualifies
    as an aggravated felony, we must follow the “categorical approach” set forth in
    Taylor v. United States, 
    495 U.S. 575
    , 600 (1990). See, e.g., Singh v. Ashcroft,
    
    383 F.3d 144
     (3d Cir. 2004) (applying Taylor to determine whether conviction for
    “[u]nlawful sexual contact in the third degree” under Delaware law constituted
    sexual abuse of a minor). In Taylor the issue w as w hether a state-court
    conviction was for the predicate offense of “burglary” under the Armed Career
    Criminal Act (ACCA), 
    18 U.S.C. § 924
    (e), which imposes increased sentences for
    those with prior convictions of certain felonies. The Supreme Court interpreted
    burglary in the ACCA to refer to “generic burglary,” meaning an “unlawful or
    unprivileged entry into, or remaining in, a building or structure, with intent to
    commit a crime.” 
    495 U.S. at 599
    . Taylor said that to determine whether prior
    convictions were for generic burglary, courts could “look[] only to the statutory
    definitions of the prior offenses, and not to the particular facts underlying those
    convictions.” 
    Id. at 600
    . In other words, only if the state statute required all the
    elements of generic burglary could the defendant’s sentence be enhanced under
    the ACCA. Taylor acknowledged, however, that
    [t]his categorical approach . . . may permit the sentencing court to go
    beyond the mere fact of conviction in a narrow range of cases where
    a jury was actually required to find all the elements of generic
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    burglary. For example, in a State whose burglary statutes include
    entry of an automobile as well as a building, if the indictment or
    information and jury instructions show that the defendant was
    charged only with a burglary of a building, and that the jury
    necessarily had to find an entry of a building to convict, then the
    Government should be allowed to use the conviction for
    enhancement.
    
    Id. at 602
    . In Shepard v. United States, 
    544 U.S. 13
     (2005), the Court applied
    this categorical approach to prior convictions resulting from guilty pleas rather
    than jury verdicts. It again recognized that when the prior conviction was under a
    nongeneric statute, courts could look to “the terms of the charging document, the
    terms of a plea agreement or transcript of colloquy between judge and defendant
    in which the factual basis for the plea was confirmed by the defendant, or to some
    comparable judicial record of this information.” Id. at 26.
    W e now apply the approach of Taylor/Shepard to this case. (Because we
    deny relief to M r. Vargas under this approach, we need not decide whether the
    constraints of Taylor and Shepard necessarily apply in resolving whether an
    offense is an aggravated felony under 
    8 U.S.C. § 1101
    (a)(43)(A).) Colorado
    Revised Statutes § 18-6-701 states, “Any person who induces, aids, or encourages
    a child to violate any federal or state law , municipal or county ordinance, or court
    order commits contributing to the delinquency of a minor.” This statute
    encompasses a multitude of crimes, one for each predicate offense that the child
    might be urged to commit. That offense could be anything from jaywalking to
    murder. But the specific predicate offense must be charged and proved as an
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    element of the offense of contributing to the delinquency of a minor. See People
    v. Corpening, 
    837 P.2d 249
    , 252 (Colo. App. 1992) (jury instruction on
    contributing to the delinquency of a minor was erroneous “because it failed to
    state precisely which law was violated by the minor”). That is, to convict a
    defendant of contributing to the delinquency of a minor, the jury “necessarily
    ha[s] to find,” Taylor, 
    495 U.S. at 602
    , a specified predicate offense that the
    defendant induced, aided, or encouraged the child to violate.
    Hence, § 18-6-701 is like a statute that criminalizes both generic burglary
    and other offenses. To determine whether a particular conviction under the
    contributing-to-the-delinquency-of-a-minor statute was for sexual abuse of a
    minor, Taylor and Shepard permit review of more than the definition of the
    statutory offense. “W hen the underlying statute reaches a broad range of
    conduct,” some of which would constitute an aggravated felony and some of
    which would not, “courts resolve the ambiguity by consulting reliable judicial
    records, such as the charging document, plea agreement, or plea colloquy.”
    United States v. M artinez-Hernandez, 
    422 F.3d 1084
    , 1086 (10th Cir. 2005).
    Accordingly, it was appropriate for the BIA to look at the charging document to
    see what law the defendant induced, aided, or encouraged the minor to break. In
    this case the charging document referenced 
    Colo. Rev. Stat. § 18-3-404
    (1)(a),
    titled “Unlaw ful Sexual Contact,” w hich states that “[a]ny actor who knowingly
    subjects a victim to any sexual contact commits unlawful sexual contact if . . .
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    [t]he actor knows that the victim does not consent[.]” Thus, M r. Vargas was
    charged with and convicted of encouraging a child to engage in nonconsensual
    sexual contact. This is unquestionably sexual abuse of a minor. See 
    18 U.S.C. § 3509
    (a)(8). W e hold that M r. V argas was convicted of an aggravated felony.
    III.   C ON CLU SIO N
    W e AFFIRM the order of the BIA .
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