Phonesavanh Nakhokkong v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHONESAVANH NAKHOKKONG, No. 18-70936
Petitioner, Agency No. A023-897-181
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 13, 2021
Pasadena, California
Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,** District
Judge.
Phonesavanh Nakhokkong petitions for review of the Board of Immigration
Appeals’ (BIA) decision affirming the immigration judge’s order removing him to
Laos, based on Nakhokkong’s conviction of sexual conduct with a minor under 15
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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years of age in violation of Arizona Revised Statutes §§ 13-705, 13-1405. Because
Nakhokkong’s conviction categorically qualifies as a “crime of child abuse,” see 8
U.S.C. § 1227(a)(2)(E)(i), we deny the petition.
The BIA’s generic definition of a crime of child abuse includes “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.” Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008).
We deferred to this definition in Jimenez-Juarez v. Holder, 635 F.3d 1169, 1171
(9th Cir. 2011).
Nakhokkong’s offense of conviction qualifies as a crime of child abuse
under this definition. He pleaded guilty to an offense that required proof of the
following elements: (1) the defendant “intentionally or knowingly engag[ed] in
sexual intercourse or oral sexual contact” with a minor under 15 years of age and
(2) the defendant was at least 18 years of age or was tried as an adult. Ariz. Rev.
Stat. §§ 13-705(F), (Q)(1); 13-1405(A)–(B). The offense satisfies the mens rea
requirement of Velazquez-Herrera’s definition because it requires an intentional or
knowing act. And the offense satisfies the actus reus requirement because sexual
intercourse or oral sexual contact between an adult who is at least 18 years of age
and a minor who is under 15 years of age “categorically constitutes maltreatment
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of a child and impairs the child’s mental well-being.” Jimenez-Juarez, 635 F.3d at1171 n.2.
Nakhokkong contends that his offense of conviction is overbroad because
the defendant need not be 18 years of age or older; in theory at least, the defendant
could have been younger than 18 but “tried as an adult.” Ariz. Rev. Stat. § 13-
705(F). That the defendant is under 18, however, does not necessarily mean that
his conviction under §§ 13-705 and 13-1405 falls outside the generic offense.
Instead, even for a defendant under 18, the conduct supporting the conviction
could constitute “maltreatment of a child” in some circumstances and therefore fit
the generic definition of a “crime of child abuse.” For an offense to be overbroad,
there must be a “realistic probability,” not merely “a theoretical possibility,” that a
defendant will be convicted on facts that extend beyond the elements of the generic
offense. Banuelos-Ayon v. Holder, 611 F.3d 1080, 1085 (9th Cir. 2010) (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). “To show that realistic
probability, an offender . . . must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the special (nongeneric)
manner for which he argues.” Duenas-Alvarez, 549 U.S. at 193. Nakhokkong has
not identified a single case in which an offender under 18 years of age was
convicted under these statutes for sexual contact with a minor under 15 years of
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age, let alone a case in which the offender’s conduct did not otherwise constitute
“maltreatment of a child.” As a result, his overbreadth challenge fails.
The BIA correctly determined that Nakhokkong’s offense of conviction
qualifies as a “crime of child abuse” under Velazquez-Herrera’s definition of that
term. Accordingly, we need not resolve the parties’ dispute over whether the
BIA’s decision in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), is also
entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842–43 (1984).
The motion of Immigration Law Professors, Experts, and Clinicians for
leave to file an amicus curiae brief (Dkt. 36) is granted.
PETITION FOR REVIEW DENIED.