Magdiel Mondragon-Gonzalez v. Attorney General United States ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1710
_____________
MAGDIEL MONDRAGON-GONZALEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an
Order of the Board of Immigration Appeals
A060-104-346
Immigration Judge: Walter A. Durling
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 16, 2017
______________
Before: VANASKIE, SHWARTZ, and FUENTES, Circuit
Judges
(Filed: January 29, 2018)
Bridget Cambria, Esq.
Cambria & Kline
532 Walnut Street
Reading, PA 19601
Counsel for Plaintiff-Appellant Magdiel Mondragon-
Gonzalez
Attorney General Jeff Sessions, Esq.
Janette L. Allen, Esq.
Jennifer A. Bowen, Esq.
Barbara J. Leen, Esq.
Anthony C. Payne, Esq.
Jessica D. Strokus, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 848
Ben Franklin Station
Washington, DC 20044
Counsel for Defendant-Appellee Attorney General for
the United States of America
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OPINION OF THE COURT
___________
VANASKIE, Circuit Judge.
Magdiel Mondragon-Gonzalez petitions for review of a
final order of the Board of Immigration Appeals upholding an
Immigration Judge’s decision directing that Mondragon-
2
Gonzalez be removed from the United States. The BIA
determined that Mondragon-Gonzalez’s conviction of
unlawful contact with a minor in violation of 18 Pa. Cons. Stat.
§ 6318(a)(5) is a “crime of child abuse” constituting grounds
for removal pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). We agree
with the BIA’s determination and will thus deny the petition
for review.
I.
Mondragon-Gonzalez was admitted to the United States
near El Paso, Texas in August 2008 on an immigrant visa. In
April 2015, he pled guilty to unlawful contact with a minor. 1
Specifically, Mondragon-Gonzalez pled guilty to violating 18
Pa. Cons. Stat. § 6318(a)(5), which provides:
A person commits an offense if he is
intentionally in contact with a minor, or a law
enforcement officer acting in the performance of
his duties who has assumed the identity of a
minor, for the purpose of engaging in an activity
prohibited under any of the following, and either
the person initiating the contact or the person
being contacted is within this Commonwealth:
1
In his guilty plea, Mondragon-Gonzales admitted to
sending photos of his penis to a “XXX year old girl.” (A52).
The sentencing court indicated that Mondragon-Gonzalez
contacted the female juvenile for the purpose of engaging in
activity prohibited under 18 Pa. Cons. Stat. § 6312, i.e.,
sexual abuse of children.
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(5) Sexual abuse of children as defined in section
6312 (relating to sexual abuse of children).
The state trial court sentenced Mondragon-Gonzales to a
prison term of 8 to 23 months.
On December 14, 2015, the Department of Homeland
Security (“DHS”) commenced proceedings to deport
Mondragon-Gonzalez on the basis of his state court conviction.
On March 1, 2016, the Immigration Judge found that
Mondragon-Gonzalez’s conviction fell within 8 U.S.C. §
1227(a)(2)(E)(i), one of the three statutory grounds for removal
advanced by DHS. 2 Section 1227(a)(2)(E)(i), in pertinent part,
provides that “[a]ny alien who at any time after admission is
convicted of . . . a crime of child abuse . . . is deportable.” The
Immigration Judge concluded that Mondragon-Gonzalez’s
conviction constituted a “crime of child abuse” as that phrase
has been interpreted by the BIA.
Agreeing with the Immigration Judge, the BIA
dismissed Mondragon-Gonzalez’s appeal. In doing so, the
BIA compared the elements of the state criminal conviction
and its interpretation of a “crime of child abuse” articulated in
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008);
2
The Immigration Judge rejected the other two
grounds for removal asserted by DHS: (1) that Mondragon-
Gonzalez’s conviction constituted an “aggravated felony”
under 8 U.S.C. § 1227(a)(2)(A)(iii) as defined in 8 U.S.C. §
1101(a)(43)(A)(sexual abuse of a minor), and (2) his
conviction qualified as an “aggravated felony” as defined in
8 U.S.C. § 1101(a)(43)(I)(child pornography).
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Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010); and Matter
of Mendoza Osorio, 26 I. & N. Dec. 703 (BIA 2016). The
Board found that the Immigration Judge was correct in
sustaining the grounds for removal under § 1227(a)(2)(E)(i)
because Mondragon-Gonzalez’s conviction satisfied the
elements of the crime of child abuse as established in the BIA’s
precedential decisions. Mondragon-Gonzalez timely
petitioned for review by our Court.
II.
Mondragon-Gonzalez challenges the BIA decision on
two grounds. First, he argues that the Board’s definition of
what constitutes a crime of child abuse is unreasonable and
should not be afforded Chevron deference. Second, he insists
that the Pennsylvania law of which he stands convicted is not
a categorical match of the BIA’s interpretation of what
constitutes a “crime of child abuse.”
We accord de novo review to questions of law,
including the BIA’s interpretation of the INA, subject to the
deference dictated by Chevron, U.S.A., Inc., v. Natural
Resources Defense Council, Inc. 467 U.S. 837 (1984);
Cheruku v. Att’y Gen. of U.S., 662 F.3d 198, 202 (3d Cir.
2011). Under Chevron, we take a two-step approach, first
deciding whether the statutory provision interpreted by the
BIA is ambiguous and then, if it is, giving deference to the
BIA’s reasonable interpretation of the INA. De Leon-Ochoa
v. Att’y Gen. of U.S., 622 F.3d 341, 348 (3d Cir. 2010).
III.
The crime of child abuse is not defined in the INA.
Moreover, the meaning of the phrase, “crime of child abuse,”
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as used in § 1227(a)(2)(E)(i) is not plain and unambiguous. See
Florez v. Holder, 779 F.3d 207, 211 (2d Cir. 2015). We
therefore must view the term as ambiguous, i.e., requiring
interpretation, and proceed to the second step of the Chevron
inquiry: “whether the BIA’s interpretation ‘is based on a
permissible construction of the statute.’” Id.
In Velazquez-Herrera, 24 I. & N. Dec. at 508, the BIA
considered the legislative history of § 1227(a)(2)(E)(i), and
surveyed both state and federal law defining the term “child
abuse” at the time Congress enacted the current provision. Id.
at 508-13. The Board arrived at the following working
definition, interpreting the term broadly to mean:
[A]ny 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. At a
minimum, this definition encompasses
convictions for offenses involving the infliction
on a child of physical harm, even if slight; mental
or emotional harm, including acts injurious to
morals; sexual abuse, including direct acts of
sexual contact, but also including acts that
induce (or omissions that permit) a child to
engage in . . . sexually explicit conduct….
Id. 512. Building on this broad definition, the BIA held in a
subsequent precedential opinion that the crime of child abuse
is not limited to crime that require actual proof of injury to a
minor—i.e., evidence of a physical act. Matter of Soram, 25 I.
& N. Dec. 378, 380-81 (BIA 2010).
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Based on the case law and legislative history, we cannot
say that the Board’s interpretation of a crime of child abuse is
unreasonable. As the BIA explained in Matter of Velazquez-
Herrera, § 1227(a)(2)(E)(i) “was enacted . . . as part of an
aggressive legislative movement to expand the criminal
grounds of deportability in general and to create a
‘comprehensive statutory scheme to cover crimes against
children’ in particular.” 24 I. & N. Dec. at 508-09 (quoting
Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 994 (BIA
1999)). Given Congress’ evident intent to make crimes that
harm children deportable offenses, we do not find the BIA’s
interpretation in this regard to be “arbitrary, capricious, or
manifestly contrary to the statute.” Chen v. Ashcroft, 381 F.3d
221, 224 (3d Cir. 2004). We, therefore, must defer to its
definition of “crime of child abuse.” 3 Accord Florez, 779 F.3d
at 212.
Mondragon-Gonzalez’s second argument—that his
conviction under § 6318(a)(5) is not a categorical match to a
crime of child abuse as defined by the BIA––is also unavailing.
The BIA correctly determined that the Pennsylvania statute at
issue satisfies the necessary intent to be considered child abuse
3
We recognize that the Court of Appeals for the Tenth
Circuit declined to accord deference to the BIA's construction
of a crime of child abuse as articulated in Velazquez-Herrera
and Soram. See Ibarra v. Holder, 736 F.3d 903, 915-18 (10th
Cir. 2013). However, even if Ibarra's criticisms of the BIA's
interpretation are persuasive, Mondragon-Gonzalez's
conviction here would still constitute a crime of child abuse
because his conviction does not fall within the “criminally
negligent” aspect of a crime of child abuse, which is what the
Ibarra court deemed unreasonable.
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under § 1227(a)(2)(E)(i). Velasquez-Herrera, 24 I. &. N. Dec.
at 512 (a crime of child abuse includes crimes “involving an
intentional, knowing, reckless, or criminally negligent act or
omission”). By its plain language, 18 Pa. Cons. Stat. §
6318(a)(5) requires intentional contact with a minor for the
purpose of engaging in sexual abuse of children.
Second, the Pennsylvania statute meets the generic
definitional requirement in § 1227(a)(2)(E)(i), that the act
committed by the offender constitute maltreatment of a child
such that there was a sufficiently high risk of harm to a child’s
physical or mental well-being. See Matter of Mendoza Osorio,
26 I. & N. Dec. at 704-05. Mondragon-Gonzalez argues that
the Pennsylvania statute does not involve a sufficiently high
risk of harm to a child because the statute only criminalizes
communication with a child. Mondragon-Gonzalez, however,
ignores the fact that a conviction under the Pennsylvania
statute requires that the perpetrator “contacts or communicates
with the minor for the purpose of engaging in the prohibited
activity.” Com. v. Morgan, 913 A.2d 906, 910 (2006)
(emphasis in original). Thus, a conviction would not occur
under the statute unless it had already been proven that the
communication was intended for an illicit sexual purpose, and
this is sufficient to create a high risk of harm to a child.
In his Reply Brief, Mondragon-Gonzalez seizes upon
the recent decision in Esquivel-Quintana v. Sessions, 137 S. Ct.
1562 (2017), to argue that a child for purposes of the INA’s use
of the term “crime of child abuse” means someone under the
age of 16. Because Pennsylvania defines “minor” for purposes
of the crime of unlawful contact with a minor as a person
“under 18 years of age,” see 18 Pa. Cons. Stat. § 6318(c),
Mondragon-Gonzalez contends that the BIA erred in
Velazquez-Herrera in holding that Congress intended that the
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crime of child abuse cover individuals under the age of 18. He
argues that the Pennsylvania crime of unlawful contact with a
minor is broader than the INA “crime of child abuse,” and thus
his conviction cannot serve as predicate for his deportation.
Mondragon-Gonzalez’s reliance upon Esquivel-
Quintana is misplaced. The Court there was confronted with
the question of “whether a conviction under a state statute
criminalizing consensual sexual intercourse between a 21–
year–old and a 17–year–old qualifies as sexual abuse of a
minor under the INA.” Esquivel-Quintana, 137 S. Ct. at 1567.
Noting that the “age of consent” is the determinative factor in
the generic offense of statutory rape, and the consensus view is
that the age of consent is 16, the Court concluded that the state
statute at issue did not categorically fall within the generic
offense of statutory rape. Id. at 1568. Accordingly, the state
conviction in that case could not serve as the predicate for
removal.
Significantly, the Court did not decide that the generic
crime of “sexual abuse of a minor” could never occur when the
victim was at least 16 years old. On the contrary, the Court
indicated that consensual sex that occurred as a result of the
perpetrator abusing a position of trust could qualify as “sexual
abuse of a minor” even if the victim is 17 years-old. Id. at
1572. Thus, Esquivel-Quintana does not support Mondragon-
Gonzalez’s claim that the “crime of child abuse” is limited to
children under the age of 16. Indeed, Esquivel-Quintana has
no application here at all.
IV.
Based on the foregoing, we will deny the petition for
review.
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