Rey Jimenez-Juarez v. Eric Holder, Jr.

Filing

FILED OPINION (SUSAN P. GRABER, MILAN D. SMITH, JR. and ROGER T. BENITEZ) DENIED. Judge: SPG , Judge: MDS Judge: RTB Authoring. FILED AND ENTERED JUDGMENT. [7700405]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



REY JIMENEZ-JUAREZ,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.




No. 09-72766
B.I.A. No.
A079-749-288
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 11, 2011—Seattle, Washington
Filed March 31, 2011
Before: Susan P. Graber and Milan D. Smith, Jr.,
Circuit Judges, and Roger T. Benitez,* District Judge.
Opinion by Judge Benitez

*The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.

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COUNSEL
Matt Adams and Betsy Tao, Northwest Immigrant Rights
Project, Tacoma, Washington, for the petitioner.
Russell J.E. Verby and Jennifer Levings, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

OPINION
BENITEZ, District Judge:
In this appeal, we consider whether a felony conviction for
child molestation in the third degree under Revised Code of
Washington section 9A.44.089 constitutes a crime of child
abuse within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). We
conclude that it does.
Petitioner Rey Jimenez-Juarez, a native and citizen of Mexico with lawful permanent resident status in the United States,
petitions for review of a final order of removal by the Board
of Immigration Appeals (“BIA”). Petitioner pleaded guilty to
violating Revised Code of Washington section 9A.44.089,
child molestation in the third degree. Section 9A.44.089 prohibits a person from having sexual contact with a minor who
is 14 or 15 years of age when the perpetrator is at least fortyeight months older than the minor.

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Because of Petitioner’s conviction, the government charged
Petitioner as removable as an alien convicted of an aggravated
felony, an alien convicted of a crime of moral turpitude, and
an alien convicted of a crime of child abuse. The immigration
judge concluded that Petitioner’s conviction constituted an
aggravated felony, a crime of moral turpitude, and a crime of
child abuse. The BIA affirmed. Petitioner timely petitions for
review.
We review de novo whether a state conviction is a removable offense, except to the extent that we owe deference to the
BIA’s interpretation of statutes and regulations that the BIA
administers. Fregozo v. Holder, 576 F.3d 1030, 1034 (9th Cir.
2009). To determine whether a conviction under section
9A.44.089 constitutes a crime of child abuse,1 we apply the
categorical approach set forth in Taylor v. United States, 495
U.S. 575, 600-02 (1990).
“Under the categorical approach, we ‘compare the elements
of the statute of conviction with a federal definition of the
crime to determine whether conduct proscribed by the [state]
statute is broader than the generic federal definition,’ looking
only at the fact of conviction and the statutory definition.”
Fregozo, 576 F.3d at 1035 (alteration in original) (quoting
Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.
2007)). “In doing so, we ‘[do not] examine the [facts underlying] the prior offense, but look only to the fact of conviction
and the statutory definition of the prior offense.’ ” QuinteroSalazar, 506 F.3d at 692 (quoting United States v. CoronaSanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc)).
[1] An alien is deportable if “convicted of . . . a crime of
child abuse.” 8 U.S.C. § 1227(a)(2)(E)(i). Congress has not
defined a “crime of child abuse” so, in Fregozo, 576 F.3d at
1

For the reasons discussed below, we hold that Petitioner’s conviction
constitutes a crime of child abuse. We therefore do not address whether
it is also an aggravated felony or a crime of moral turpitude.

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1035, we deferred to the BIA’s reasonable interpretation of
that term as set forth in In re Velazquez-Herrera, 24 I. & N.
Dec. 503 (B.I.A. 2008). Under that interpretation, a “crime of
child abuse” is any offense that (1) involves an intentional,
knowing, reckless, or criminally negligent act or omission that
(2) constitutes maltreatment of a child or that impairs a child’s
physical or mental well-being, including sexual abuse or
exploitation. Fregozo, 576 F.3d at 1036 (quoting In re
Velazquez-Herrera, 24 I. & N. Dec. at 512). We hold that the
elements of section 9A.44.089 fit within the BIA’s definition.
[2] First, section 9A.44.089 meets the mens rea requirement of the federal definition, which requires at least a criminally negligent act. To be convicted under section 9A.44.089,
a person must make “sexual contact,” which the Washington
Supreme Court has defined as “ ‘any touching of the sexual
or other intimate parts of a person done for the purpose of
gratifying sexual desire of either party or a third party.’ ” See
State v. Stevens, 143 P.3d 817, 821 (Wash. 2006) (emphasis
added) (quoting the definition for sexual contact in Wash.
Rev. Code § 9A.44.010(2)). Acting with the purpose of gratifying a sexual desire is an intentional act, which exceeds the
minimum mens rea required under the federal definition.
[3] Second, section 9A.44.089 meets the actus reus
requirement in the federal definition, which requires an act
that “ ‘constitutes maltreatment of a child or that impairs a
child’s physical or mental well-being.’ ” Fregozo, 576 F.3d at
1036 (quoting In re Velazquez-Herrera, 24 I. & N. Dec. at
512). Section 9A.44.089 makes illegal the act of touching the
sexual or other intimate parts of the victim when the victim
is either 14 or 15 years old and the perpetrator is at least fortyeight months older.2 This conduct, at a minimum, constitutes
2

That element distinguishes section 9A.44.089 from California’s misdemeanor child endangerment statute, Cal. Penal Code § 273a(b), which we
found not to be a categorical crime of child abuse in Fregozo, 576 F.3d
at 1037. In that case, we observed that a person could violate § 273a(b),

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maltreatment of a child and impairs the child’s mental wellbeing.
Accordingly, we conclude that Petitioner’s conviction
under section 9A.44.089 is categorically a crime of child
abuse. The petition for review is DENIED.

for example, by “placing an unattended infant in the middle of a tall bed
without a railing, even though the child was never injured.” Id. That act
“creates only potential harm to a child,” so it fell outside the scope of the
BIA’s definition of a crime of child abuse. Id. Here, by contrast, a person
violates section 9A.44.089 only when the person physically touches the
sexual or intimate parts of a child no older than 15. Such an act categorically constitutes maltreatment of a child and impairs the child’s mental
well-being.