Farhang v. Ashcroft , 104 F. App'x 696 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 2 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
FARHAD FARHANG,
Petitioner,
v. No. 04-9544
(No. A-29-674-725)
JOHN ASHCROFT, (Petition for Review)
Respondent.
ORDER AND JUDGMENT *
Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
MURPHY , Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
We have for consideration petitioner Farhad Farhang’s motion for a stay of
removal pending review and the government’s motion to dismiss the petition for
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
review for lack of jurisdiction. Based on our review of the parties’ materials and
the administrative record, the government’s motion to dismiss is granted, and
petitioner’s motion for a stay of removal is denied as moot.
Facts and Procedural History
Petitioner is a native and citizen of Iran. He was born in 1967 and was
brought by his mother to the United States in 1985, when he was seventeen years
old. He became a lawful permanent resident in 1996. In June 2003, petitioner
pleaded guilty in the State of Utah to a third-degree felony, “Enticing a minor
over the Internet.” Utah Code Ann. § 76-4-401. The record shows that petitioner
was given an indeterminate sentence of zero to five years, which was suspended.
Petitioner was ordered to serve thirty days in county jail, but he was allowed to
perform 100 hours of community service in lieu of eleven of those days, so he
actually served only nineteen days. The record does not show the underlying facts
of petitioner’s conviction, although he asserts that “there was in fact no actual
minor victim in the case at bar.” Pet’r’s Reply Br. at 2. He implies that he
e-mailed an undercover law enforcement officer posing as a child.
The immigration judge (IJ) held that petitioner was removable based on his
state conviction. The IJ also summarily denied petitioner’s applications for
asylum and for withholding of removal under the Immigration and Nationality Act
(INA) on the basis that his state conviction was an aggravated felony and he was
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therefore statutorily ineligible for that relief. The IJ denied petitioner’s
application for withholding of removal under the Convention Against Torture on
the merits. The Board of Immigration Appeals (BIA) affirmed without opinion,
and so this court will review the IJ’s reasoning on appeal. Yuk v. Ashcroft,
355 F.3d 1222, 1230 (10th Cir. 2004).
The Parties’ Arguments
Petitioner argues that his conviction is not an aggravated felony within the
meaning of the INA and that the IJ therefore should have decided his claims for
asylum and withholding of removal under the INA on the merits. Based on this
merits argument, petitioner contends that he is entitled to a stay of removal
pending review. The government correctly points out, however, that the IJ’s
holding that petitioner committed an aggravated felony implicates more than just
the merits, that is, the jurisdiction-stripping provision of 8 U.S.C.
§ 1252(a)(2)(C). The government submits that petitioner committed an
aggravated felony–either enticing a minor over the Internet or attempted sexual
abuse of a child–and argues that the petition for review should be dismissed for
lack of jurisdiction and the motion for stay of removal denied as moot. In the
alternative, the government argues that petitioner fails to meet the requirement of
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to
demonstrate by clear and convincing evidence that he is entitled to a stay.
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“Aggravated Felony” under the INA
Although we do not have jurisdiction over an immigration appeal filed by
an aggravated felon, we do have jurisdiction to determine whether petitioner is an
aggravated felon and the jurisdictional bar applies. Khalayleh v. INS, 287 F.3d
978, 979 (10th Cir. 2002) (citing § 1252(a)(2)(C)). To the extent it is relevant to
the motions before us, the INA defines “aggravated felony” to include “murder,
rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). The INA does not
further define “sexual abuse of a minor,” however. See id.Because the INA does not define the term “sexual abuse of a minor” at all,
the INA does not fully define the term “aggravated felony.” To fill this gap, the
BIA has decided to borrow the definition of “sexual abuse” in 18 U.S.C.
§ 3509(a)(8). See In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, at Part III C
(BIA 1999). Section 3509(a)(2) defines “child” as “a person under the age of
18 . . . .” Section 3509(a)(8) defines “sexual abuse” as “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 with
children . . . .” This language clearly encompasses enticing a child over the
Internet, but the Utah statute also includes a prohibition against enticing an adult
the defendant believes to be a minor. See Utah Code Ann. § 76-4-401(1). For
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this reason, petitioner argues that his state conviction does not fit within the
definition in § 3509(a). The IJ held that it was “on all fours.” Admin. R. at 43.
Standards of Review
We defer to the agency’s interpretation of an ambiguous statute if it is
reasonable and if it is a statute the agency administers. Tapia Garcia v. INS,
237 F.3d 1216, 1220 (10th Cir. 2001) (citing Chevron, U.S.A., Inc. v. Natural
Res. Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). We owe the agency no
deference in interpreting non-immigration statutes, however. See Chevron,
467 U.S. at 842-43 & n.9; Francis v. Reno, 269 F.3d 162, 168 (3d Cir. 2001);
Mugalli v. Ashcroft, 258 F.3d 52, 55-56 (2d Cir. 2001). Thus, we review the
agency’s interpretation of § 3509(a) de novo.
Utah Statute
The Utah statute under which petitioner was convicted prohibits
“knowingly us[ing] a computer to solicit, seduce, lure, or entice, or attempt[ing]
to use a computer to solicit, seduce, lure, or entice a minor or a person the
defendant believes to be a minor to engage in any sexual activity which is a
violation of state criminal law.” Utah Code Ann. § 76-4-401(1) (emphasis
added). Petitioner argues that under the “categorical approach” to statutory
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interpretation, the Utah statute does not constitute an aggravated felony under
the INA.
“Categorical Approach” to Statutory Interpretation
The Supreme Court applied a “categorical approach” to statutory
interpretation in Taylor v. United States, 495 U.S. 575 (1990), when the Court
considered whether a criminal defendant’s prior state burglary convictions
constituted “burglary,” as defined by 18 U.S.C. § 924(e) (which would have made
the defendant subject to an enhancement on his federal sentence). The Court held
that courts should take a “categorical approach” to that question instead of
looking at the facts underlying the defendant’s state convictions. See id.
at 600-02. The generic definition of burglary under the federal statute was the
unlawful entry of a building with intent to commit a crime. See id. at 598. Under
the categorical approach, a court considering whether a prior state conviction falls
within the federal definition may look at: (1) the state statutory definition, or
(2) the charging paper and jury instructions to find the answer. Id. at 602. So,
for example, if a state burglary statute “include[s] entry of an automobile as well
as a building,” the government may nevertheless use the state conviction for the
federal sentence enhancement “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
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convict . . . .” Id. This court has employed the categorical approach described
in Taylor. E.g., United States v. Vigil, 334 F.3d 1215, 1218-19 (10th Cir.),
cert. denied, 124 S. Ct. 592 (2003); United States v. Reyes-Castro, 13 F.3d 377,
379 (10th Cir. 1993).
In this case, petitioner argues that the Utah statute under which he was
convicted is broader than the federal criminal definition in 18 U.S.C. § 3509(a),
because the federal statute has no “or person the defendant believes to be a
minor” language. Rather, he argues, § 3509(a) applies by its plain language to
children under the age of eighteen. But petitioner stopped short in his argument
and in his showing.
If petitioner was convicted of enticing a child over the Internet, then his
state conviction substantially corresponds to the language of § 3509(a), and he
committed an aggravated felony. But petitioner asserts that there was no actual
child involved in his offense. Because the language of Utah Code Ann.
§ 76-4-401 arguably is divisible into an offense that falls within § 3509(a) and
another that does not, we must ask what petitioner was actually convicted of.
See Taylor, 495 U.S. at 602. To answer this question, we may look at “the
indictment, plea, verdict, and sentence (or any other documents admissible under
the federal regulations to prove a criminal conviction).” Santapaola v. Ashcroft,
249 F. Supp. 2d 181, 189 (D. Conn. 2003); see also United States v.
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Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004). And here is where
petitioner’s proof fails: there is nothing in the administrative record to show that
there was no minor involved in his offense. Indeed, the government asserted at
the administrative hearing that a thirteen-year-old girl was involved, and
petitioner did not dispute that assertion. Admin. R. at 71-73.
As the party seeking the exercise of jurisdiction, petitioner is responsible
for proving the jurisdictional facts. See McNutt v. Gen. Motors Acceptance Corp.
of Ind., Inc., 298 U.S. 178, 189 (1936). Because he has not done so, the
government’s motion to dismiss is granted, and petitioner’s motion for stay of
removal is moot.
We find it unnecessary to address the government’s argument that
petitioner is guilty of attempted sexual abuse of a child, which, it asserts, is also
an aggravated felony. We also find it unnecessary to consider the government’s
argument that the legal standard for a temporary stay of removal is heightened by
8 U.S.C. § 1252(f)(2).
The government’s motion to dismiss is GRANTED and the petition
for review is DISMISSED. Petitioner’s motion for a stay of removal is denied
as moot.
ENTERED FOR THE COURT
PER CURIAM
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