Valencia v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR B. VALENCIA, 
Petitioner, No. 03-72028
v.
 Agency No.
A70-972-808
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 9, 2004—San Francisco, California
Filed May 12, 2005
Before: Diarmuid F. O’Scannlain, Robert E. Cowen,** and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea;
Concurrence by Judge Bea
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
5185
VALENCIA v. GONZALES 5187
COUNSEL
James Todd Bennett, El Cerrito, California, for the petitioner.
Peter D. Keisler, Donald E. Keener, Greg D. Mack, Office of
Immigration Litigation, Washington, D.C., for the respondent.
5188 VALENCIA v. GONZALES
OPINION
BEA, Circuit Judge:
Victor Valencia, a native and citizen of Peru, petitions for
review from the Board of Immigration Appeals’ (“BIA”)
order summarily affirming the Immigration Judge’s (“IJ”)
order of removal. Valencia was convicted of felony1 unlawful
sexual intercourse with a person under 18, who was more than
three years younger than he, in violation of California Penal
Code section 261.5(c). The IJ found Valencia removable for
having committed an aggravated felony under 8 U.S.C.
§ 1227(a)(2)(A)(iii), holding the crime constituted a crime of
violence under 8 U.S.C. § 1101(a)(43)(F), which defines a
crime of violence pursuant to 18 U.S.C. § 16. Our jurisdiction
is controlled by 8 U.S.C. § 1252. We deny in part and dismiss
in part the petition for review.
Valencia also argued that he should have been allowed to
apply for an adjustment of status based on his marriage to a
United States citizen. Because we conclude that we lack juris-
diction to review the BIA’s removal order, we will not con-
sider the merits of this argument.
I
On May 29, 1997, Valencia pleaded guilty to a felony vio-
lation of California Penal Code section 261.5(c). He was sen-
tenced to five years in state prison, but the imposition of his
sentence was suspended, and he was placed on five years pro-
bation, on the condition that he serve one year in the county
jail. At the change of plea hearing, the judge specifically
advised, and Valencia acknowledged, that this conviction
could be used to deport him.
1
A violation of section 261.5(c) can be charged as either a misdemeanor
or a felony. Here, it was charged as a felony.
VALENCIA v. GONZALES 5189
Valencia was charged in the notice to appear with being
removable as an aggravated felon for committing sexual
abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), and for
committing a crime of violence under 8 U.S.C. § 1101(a)
(43)(F).
II
The IJ found Valencia removable as an aggravated felon
under 8 U.S.C. § 1227(a)(2)(A)(iii), holding that the crime
constituted a crime of violence under 8 U.S.C. § 1101(a)
(43)(F), as defined in 18 U.S.C. § 16.
The cases deciding whether a violation of California Penal
Code § 261.5(c) is an aggravated felony usually decide the
case by evaluating whether it constitutes sexual abuse of a
minor in violation of 8 U.S.C. § 1101(a)(43)(A).2 But here,
the IJ dismissed the 8 U.S.C. § 1101(a)(43)(A) charge. The
government does not cross-appeal such dismissal.
At the hearing on the merits, Valencia sought to apply for
an adjustment of status from that of an illegal alien to that of
a legal permanent resident based on his marriage to a United
States citizen. Having ruled that Valencia’s conviction consti-
tuted a prior conviction of a crime of violence, the IJ did not
determine whether Valencia’s conviction also constituted a
crime of moral turpitude, thus barring his application for an
adjustment of status.
2
Under this court’s case law, sexual intercourse with a minor constitutes
“sexual abuse of a minor.” See United States v. Granbois, 376 F.3d 993,
996 (9th Cir. 2004); United States v. Pereira-Salmeron, 337 F.3d 1148,
1149 (9th Cir. 2003) (conviction under Virginia law for “carnal knowl-
edge” without use of force of a child between the ages of 13 and 15 is
“sexual abuse of a minor”); see also United States v. Baron-Medina, 187
F.3d 1144, 1147 (9th Cir. 1999) (use of young children for the gratifica-
tion of sexual desires is conduct that falls within the common, everyday
meaning of “sexual abuse of a minor”).
5190 VALENCIA v. GONZALES
The BIA summarily affirmed the IJ’s ruling.
III
We do not have jurisdiction to review the propriety of any
final order of removal against an alien who is ordered
removed for having committed an aggravated felony covered
in 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1252(a)(2)(C);
Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000);
Aragon-Ayon v. INS, 206 F.3d 847, 849-50 (9th Cir. 2000).
We do, however, have jurisdiction to consider the limited
question whether a crime is an aggravated felony. Cedano-
Viera v. Ashcroft, 324 F.3d 1062, 1065 (9th Cir. 2003). For
the reasons discussed below, we hold that Valencia’s crime
was an aggravated felony.
IV
Under the “categorical approach” laid out in Taylor v.
United States, 495 U.S. 575 (1990), a violation of section
261.5(c) qualifies as a crime of violence and hence an aggra-
vated felony, “if and only if the full range of conduct covered
by it falls within the meaning of that term.” United States v.
Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (citation
omitted).
[1] Under 8 U.S.C. § 1227(a)(2)(A)(iii) “an alien who is
convicted of an aggravated felony at any time is deportable.”
8 U.S.C. § 1101(a)(43)(F) defines an aggravated felony as “a
crime of violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of
imprisonment [is] at least one year.”
[2] Section 16 of Title 18 in turn defines a crime of vio-
lence as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
VALENCIA v. GONZALES 5191
against the person or property of another, or (b) any
other offense that is a felony and that, by its nature,
involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.
18 U.S.C. § 16 (emphasis added). The “physical force” neces-
sary to constitute a crime of violence under 18 U.S.C. § 16(b)
must be violent in nature. Ye v. INS, 214 F.3d 1128, 1133 (9th
Cir. 2000).
The statute to which Valencia pleaded guilty provided:
Any person who engages in an act of unlawful sex-
ual intercourse with a minor who is more than three
years younger than the perpetrator is guilty of either
a misdemeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison.
Cal. Penal Code § 261.5(c) (1997).
[3] Section 261.5(c) does not have “as an element the use,
attempted use, or threatened use of [violent] physical force
against the person or property of another.” 18 U.S.C. § 16(a).
Therefore, under the Taylor categorical approach, we consider
whether the “full range of conduct” covered by section
261.5(c), see Baron-Medina, 187 F.3d at 1146, “involves a
substantial risk that physical force against the person or prop-
erty of another may be used in the course of committing the
offense.” 18 U.S.C. § 16(b). We are bound by our precedent
to conclude that it is.
[4] In United States v. Granbois, 376 F.3d 993 (9th Cir.
2004), this court held that a violation under 18 § U.S.C.
2244(a)(3) was categorically a crime of violence under
U.S.S.G. § 4B1.2(a) because it involved the sexual abuse of
5192 VALENCIA v. GONZALES
a minor. Id. at 996. We later followed the holding in United
States v. Asberry, 394 F.3d 712, 715-16 (9th Cir. 2004).
In Granbois, the statute at issue defined a crime of violence
as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (emphasis added).
[5] Granbois was convicted under 18 U.S.C. § 2244(a)(3),
which provides that it is a crime for a person to have sexual
contact with another person who is between the ages of 12
and 15 and is at least four years younger than the perpetrator.
There are two differences between Granbois and our case,
but neither appears to be a distinctive difference.
First, Granbois was interpreting the portion of U.S.S.G.
§ 4B1.2(a), which defines a crime of violence as one that
presents “a serious potential risk of physical injury to anoth-
er.” We are interpreting 18 U.S.C. § 16(b), which defines a
crime of violence as one that “by its nature, involves a sub-
stantial risk that [violent] physical force against the person or
property of another may be used in the course of committing
the offense.”
• Section 4B1.2(a) requires a “serious potential
risk”; section 16(b) requires a “substantial risk.”
On this comparison, the former section would
seem to require proof of a lesser risk than the lat-
VALENCIA v. GONZALES 5193
ter; it deals with a “potential risk”, rather than a
“risk.”
• Section 4B1.2(a) requires the risk be of “physical
injury to another”; section 16(b) requires that
“[violent] physical force against the person or
property of another” be used. On this compari-
son, the former section would seem to require
proof of greater damage than the latter; it deals
with “physical injury”, rather than “[violent]
physical force.”
Although the proof of culpability under both statutes may
differ in another case because of the clear difference in the
language of the two statutes, we cannot discern a difference
between the two statutes as applied to statutory rape. We cau-
tion, however, that the differences between U.S.S.G.
§ 4B1.2(a) and 18 U.S.C. § 16(b) might prove to be disposi-
tive in another case.3
The second difference is that in Granbois, the victim was
at most 15, and here the victim was at most 17. Although
there is clearly a difference between a 15 year-old and a 17
year-old, once again we cannot say it is a meaningful differ-
ence in this case where the statutes condemn an actor who
creates a risk of physical injury or violent physical force. At
either age, a young person is similarly in need of protection
against such risks.
3
Contra United States v. Houston, 364 F.3d 243 (5th Cir. 2004) (hold-
ing that a violation of the Texas statutory rape statute was not categori-
cally a crime of violence under U.S.S.G. § 4B1.2(a)). In Houston, the Fifth
Circuit distinguished its prior holding in United States v. Velasquez-
Overa, 100 F.3d 418, 422 (5th Cir. 1996) (holding that a violation of the
Texas statutory rape statute was categorically a crime of violence under
18 U.S.C. § 16(b)), based on the difference in language between section
4B1.2(a) and section 16(b). Houston, 364 F.3d at 247 n.5. Yet the court
in Houston did not provide any reasoning as to why the difference in lan-
guage between the two statutes was dispositive.
5194 VALENCIA v. GONZALES
[6] Therefore, we are bound by Granbois and must follow
it. See Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir.
1984) (holding that only this court sitting en banc may over-
rule a prior decision by a panel of this court); see also United
States v. Velasquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996)
(holding that the statutory rape of a 16 year-old victim is cate-
gorically a crime of violence under 18 U.S.C. § 16(b)). We
therefore deny Valencia’s petition on this issue.
[7] Given that petitioner was removable for having commit-
ted an aggravated felony, we lack jurisdiction to consider the
second issue Valencia raises of whether his conviction also
constituted a crime of moral turpitude so as to preclude a
waiver of inadmissability under 8 U.S.C. § 1182(h)(1)(B)(2),
and thus bar his application for an adjustment of status under
8 U.S.C. § 1255(a). 8 U.S.C. § 1252(a)(2)(C); Cedano-Viera,
324 F.3d at 1064 (“We conclude that the court of appeals,
having no jurisdiction to review Cedano-Viera’s removal
order because he was convicted of an aggravated felony, lacks
jurisdiction to consider his constitutional challenges as
well.”).
We therefore dismiss for lack of jurisdiction this portion of
Valencia’s petition.
PETITION FOR REVIEW DENIED IN PART AND
DISMISSED IN PART.
BEA, Circuit Judge, specially concurring:
I wanted to add a few of my own thoughts concerning
United States v. Granbois, 376 F.3d 993, 996 (9th Cir. 2004).
As I pointed out in my concurrence in United States v.
Asberry, 394 F.3d 712, 720-21 (9th Cir. 2004), I continue to
think Granbois was incorrectly decided. I find the reasoning
of our sister circuits in United States v. Thomas, 159 F.3d
VALENCIA v. GONZALES 5195
296, 299 (7th Cir. 1998) and United States v. Houston, 364
F.3d 243 (5th Cir. 2004) to be more persuasive.
In Thomas, the court considered Illinois’ statutory rape law
under a categorical approach and held that the government did
not present sufficient evidence to prove the crime presents “a
serious potential risk of physical injury to another”:
The government has not furnished us, nor did the
district court cite, any studies or reasons that would
support a conclusion that sex between a 16 year old
girl (perhaps, as we said, a day short of 17) and a 22
year old man poses a potential risk of physical injury
to the girl (or to her fetus, which we can assume is
also “another” within the meaning of the statute,
should the girl become pregnant). More than 40 per-
cent of the 16 year old girls in our society have had
sexual intercourse, Alan Guttmacher Institute, Sex
and America’s Teenagers 18-20 (1994); 45 of the 50
states permit marriage at 16—including Illinois (if
the parents consent, as almost all the states require),
750 ILCS 5/203; and in a majority of states 16 is the
age of consent, rather than 17 as in Illinois. In light
of these legal and sociological facts, it is difficult to
maintain on a priori grounds that sex is physically
dangerous to 16 year old girls.
Id. at 299.
Similarly, in United States v. Houston, 364 F.3d 243 (5th
Cir. 2004), the Fifth Circuit concluded that “sexual inter-
course between a 20 year old male and a female a day under
17, free of aggravating circumstances such as the victim’s
lack of consent or the offender’s use of violence, does not
present a serious potential risk of physical injury.” Id. at 248.1
1
The courts in Thomas and Houston were looking at whether statutory
rape presents “a serious potential risk of physical injury to another,”
5196 VALENCIA v. GONZALES
As noted in the majority opinion, under the “categorical
approach” laid out in Taylor v. United States, 495 U.S. 575
(1990), a violation of section 261.5(c) qualifies as a crime of
violence and hence an aggravated felony, “if and only if the
full range of conduct covered by it falls within the meaning
of that term.” United States v. Baron-Medina, 187 F.3d 1144,
1146 (9th Cir. 1999) (citation omitted). There is no evidence
in our case that consensual sex between a man who just
turned 21 years old and a girl who is one day short of being
18 years old5 would cause either “a serious potential risk of
physical injury to another,” or “a substantial risk that [violent]
physical force against the person or property of another may
be used in the course of committing the offense.”
The court in Granbois arrived at its holding by incorporat-
ing the “crime of violence” definition of U.S.S.G. § 2L1.2
into U.S.S.G. § 4B1.2(a); since section 2L1.2 classifies “sex-
ual abuse of a minor” as a “crime of violence,” the court held
engaging in sexual contact with a minor was also a “crime of
violence” for purposes of section 4B1.2(a). Id. Granbois
noted the difference between the “crime of violence” defini-
tions in U.S.S.G. §§ 2L1.2 and 4B1.2(a), but held it was
immaterial. Id. (quoting United States v. Pereira-Salmeron,
337 F.3d 1148, 1153 (9th Cir. 2003)). In holding there is no
difference between the “crime of violence” definitions in
U.S.S.G. §§ 4B1.2(a) and 2L1.2, Granbois ignores the inclu-
whereas we are concerned with whether it presents “a substantial risk that
[violent] physical force against the person or property of another may be
used in the course of committing the offense.” On the facts of this case,
however, I do not think the difference in the statutes changes the analysis.
5
Because under the categorical approach an offense is an aggravated fel-
ony only if the “full range of conduct covered by it falls within that term”
we must evaluate whether a violation of section 261.5(c) is a crime of vio-
lence by using a hypothetical that involves the least culpable conduct pos-
sible that would still constitute a violation of section 261.5(c). Baron-
Medina, 187 F.3d at 1146. Thus, we must assume that the sex was consen-
sual. We must also assume the victim was one day short of 18 and the per-
petrator had just turned 21.
VALENCIA v. GONZALES 5197
sion of the “statutory rape” and “sexual abuse of a minor”
terms in section 2L1.2, and the exclusion of those terms in
section 4B1.2(a). Nevertheless, Granbois is controlling here
and we are bound by it.