Jose Lazalde-Zuniga v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE CORNELIO LAZALDE-ZUNIGA, No. 16-70328
AKA Jose Cornelio Lasalde-Zuniga, AKA
Jose Zuniga-Lazalde, Agency No. A074-316-693
Petitioner,
MEMORANDUM*
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2018
San Francisco, California
Before: SCHROEDER, GOULD, and DIAZ,** Circuit Judges.
Jose Cornelio Lazalde-Zuniga (“Lazalde-Zuniga”) petitions for review of the
denial by the Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Albert Diaz, United States Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
(collectively, the “Agency”) of his application under 8 U.S.C. § 1229b(a) for
cancellation of removal. The Agency denied his application upon a determination
that he was removable, because his conviction under A.R.S. § 13-1405(A) was a
categorical match to “a crime of child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i).
The BIA has interpreted “a crime of child abuse” to mean “any offense
involving an intentional, knowing, reckless, or criminally negligent act or omission
that constitutes maltreatment of a child or that impairs a child’s physical or mental
well-being, including sexual abuse or exploitation.” In re Velazquez-Herrera,
24 I. & N. Dec. 503, 512 (BIA 2008).
The mens rea required under A.R.S. § 13-1405(A) meets the mens rea
requirement of the federal definition, because the Arizona statute prohibits
“intentionally or knowingly engaging in sexual intercourse or oral sexual contact
with” a minor.
A.R.S. § 13-1405(A) also meets the actus reus requirement of the federal
definition. The Arizona statute prohibits “sexual intercourse or oral sexual contact
with any person who is under eighteen years of age,” A.R.S. § 13-1405(A), which
“constitutes maltreatment of a child” and “impairs a child’s . . . mental
well-being.” In re Velazquez-Herrera, 24 I. & N. Dec. at 512; see also Jimenez-
Juarez v. Holder, 635 F.3d 1169, 1171 & n.2 (9th Cir. 2011).
2
The Arizona statute is therefore a categorical match to the federal crime of
child abuse. Neither the BIA’s definition, nor our case law requires knowledge of
the age of the victim. See Jimenez-Juarez, 635 F.3d at 1171; In re Velazquez-
Herrera, 24 I. & N. Dec. at 512.
Lazalde-Zuniga’s arguments concerning “sexual abuse of a minor” under 8
U.S.C. § 1101(a)(43)(A) and “a crime involving moral turpitude” under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) are irrelevant to whether Lazalde-Zuniga’s conviction is a
match to the less stringent definition of “a crime of child abuse” under 8 U.S.C.
§ 1227(a)(2)(E)(i). See, e.g., United States v. Martinez, 786 F.3d 1227, 1232–33
(9th Cir. 2015).
Petition DENIED.
3