Juan Mendoza v. Holder , 469 F. App'x 599 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 28 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUAN CARLOS MENDOZA, AKA Juan No. 08-72046
Mendez,
Agency No. A076-452-961
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent,
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 16, 2012
San Francisco, California
Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.
An immigration judge (IJ) found that Juan Carlos Mendoza was removable
based on his conviction for rape in the third degree under New York Penal Law
§ 130.25(1), an aggravated felony under § 101(a)(43)(A) of the Immigration and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Nationality Act. The Board of Immigration Appeals (BIA) affirmed the IJ’s
decision. Mendoza petitions for review of the BIA’s order dismissing his appeal.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny the petition for
review.
Mendoza contends that the IJ violated his due process rights by asking him if
the conviction documents submitted by the government “relat[ed]” to him, without
explaining that he could object to admission of the documents. Mendoza appeared
pro se in the removal proceedings. We review de novo claims of due process
violations in removal proceedings. Jacinto v. INS, 208 F.3d 725, 727 (9th Cir.
2000).
Due process is violated in an immigration proceeding when “(1) the
proceeding was so fundamentally unfair that the alien was prevented from
reasonably presenting his case, and (2) the alien demonstrates prejudice, which
means that the outcome of the proceeding may have been affected by the alleged
violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006)
(internal citations and quotation marks omitted). Here, there is no indication that
the IJ prevented Mendoza from reasonably presenting his case. The record
demonstrates that Mendoza understood the IJ’s question, and that he had decided
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no longer to dispute the fact of his conviction, instead arguing that his conviction
did not qualify as an aggravated felony.
Furthermore, Mendoza cannot show that he was prejudiced by his failure to
object to the conviction documents. Mendoza does not explain precisely what
objection he would have made, but he argues generally that the documents were
not sufficient to establish the fact of his conviction for third degree rape. We
disagree. Among other things, the government submitted an information
specifying that Mendoza was charged with third degree rape under New York
Penal Law § 130.25(1); a waiver of appeal that references the information number
and indicates that it was signed as part of a plea agreement; and a sentence and
commitment form referencing the information number and noting that Mendoza
was convicted under § 130.25. These documents were properly admitted into the
record and are sufficient to prove the fact that Mendoza was convicted of third
degree rape under § 130.25(1). See 8 U.S.C. § 1229a(c)(3)(B)(vi).
Because third degree rape under § 130.25(1) is categorically an aggravated
felony, we need not consider whether these documents would be sufficient under
the modified categorical approach. We review de novo whether a conviction
qualifies as an aggravated felony. Carlos-Blaza v. Holder, 611 F.3d 583, 587 (9th
Cir. 2010). Section 130.25(1) provides that “[a] person is guilty of rape in the third
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degree when . . . [h]e or she engages in sexual intercourse with another person who
is incapable of consent by reason of some factor other than being less than
seventeen years old.” We have previously held that nonconsensual sexual
intercourse falls within the common definition of rape and is thus categorically an
aggravated felony. See, e.g., United States v. Yanez Saucedo, 295 F.3d 991,
995–96 (9th Cir. 2002); Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir. 2000).
The BIA correctly applied this precedent to determine that Mendoza’s conviction
was an aggravated felony. We are not persuaded by Mendoza’s argument that the
BIA erred by failing to expressly state that it was using the “categorical approach.”
The petition for review is DENIED.
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