Husband v. Mukasey , 286 F. App'x 130 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 30, 2008
No. 07-60552
Summary Calendar Charles R. Fulbruge III
Clerk
EDUARDO FRANCISCO HUSBAND, also known as Eddie Husband
Petitioner
v.
MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A72 184 338
Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges.
PER CURIAM:*
Eduardo Francisco Husband is a native and citizen of Panama who became
a lawful permanent resident of the United States in 1992. On April 12, 2002, he
was convicted of attempted second degree rape under New York Penal Law
§§ 110.00 and 130.30, and was subsequently charged with removability as an
aggravated felon. At a hearing before an Immigration Judge, Husband conceded
removability, but asserted claims for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and protection under the Convention
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-60552
Against Torture. The Immigration Judge found Husband removable,
pretermitted his application for asylum, denied his application for withholding
of removal, and denied his request for protection under the Convention Against
Torture.
The Board of Immigration Appeals dismissed Husband’s appeal,
concluding that, (1) his conviction for an aggravated felony makes him
statutorily ineligible for asylum; (2) he was not entitled to withholding of
removal under the INA, because he failed to show a clear probability that his life
or freedom would be threatened on account of a protected ground; and (3) he was
not eligible for protection under the Convention Against Torture since he failed
to show that he more likely than not would be tortured by, or with the consent
or acquiescence of, the Panamanian government.
Proceeding pro se, Husband petitions for review of the BIA’s decision,
arguing that his conviction under New York Penal Law § 130.30 for attempted
rape in the second degree was not an aggravated felony under the INA, and that
he is entitled to relief under the Convention Against Torture because those who
seek him harm in Panama would do so at the instigation of, or with the consent
or acquiescence of, a public official or other person acting in an official capacity.1
We lack jurisdiction to review a final order of removal against an alien
convicted of an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). However, we retain
jurisdiction over constitutional questions and questions of law. 8 U.S.C.
§ 1252(a)(2)(D). Whether an offense is an aggravated felony is a question of law
that we review de novo. Andrade v. Gonzales, 459 F.3d 538, 542-44 (5th Cir.
2006).
A person is guilty of rape in the second degree under § 130.30 when,
1
Because he does not brief his withholding of removal and asylum claims,
Husband has waived or abandoned them. See Calderon-Ontiveros v. I.N.S., 809
F.2d 1050, 1052 (5th Cir. 1986); Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir.
2003)
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No. 07-60552
(1) being eighteen years old or more, he or she engages in sexual
intercourse with another person less than fifteen years old; or
(2) he or she engages in sexual intercourse with another person who
is incapable of consent by reason of being mentally disabled or
mentally incapacitated.
N.Y. PENAL LAW § 130.30 (2001). Where a statute “defines multiple offenses, at
least one of which does not describe an aggravated felony, we apply a modified
categorical approach, under which we may also examine certain additional
documents (if contained in the record framing the guilty plea conviction) to
determine whether the conviction was ‘necessarily’ for a particular crime defined
by the statute that meets the aggravated felony criterion.” Larin-Ulloa v.
Gonzales, 462 F.3d 456, 464 (5th Cir. 2006). Among the documents we may
consult under the modified categorical approach are the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.
Shepard v. United States, 544 U.S. 13, 16 (2005) (interpreting Taylor v. United
States, 495 U.S. 575 (1990)).
The judgment shows that Husband was convicted of one count of
attempted rape in the second degree. Although it does not specify which of the
41 counts of the indictment form the basis of conviction, each of the eight counts
charging rape in the second degree allege that Husband violated § 130.30 by
“being eighteen years old or more [and] engag[ing] in sexual intercourse with
. . . a female less than fourteen years old.” This statutory language makes clear
that Husband pled guilty to § 130.30(1) of the New York Penal Law, which
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prohibits statutory rape.2 Thus, we need not address whether a violation of
§130.30(2) would constitute an aggravated felony.
An aggravated felony under the Immigration and Nationality Act includes
“murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). An
attempt is the equivalent of the underlying offense for purposes of the
aggravated felony determination. 8 U.S.C. § 1101(a)(43)(U). Although Congress
did not define “sexual abuse of a minor” in the statute, this Court has
interpreted it to encompass Texas Penal Code § 21.11(a)(2), which makes
unlawful an individual knowingly exposing himself to a minor with the intent
to arouse or gratify sexual desire. United States v. Zavala-Sustaita, 214 F.3d
601, 604-07 (5th Cir. 2000). In Zavala-Sustaita, we observed that, (1) “the
structure of § 1101(a)(43) counsels against applying a narrow reading of the
phrase”; (2) Congress apparently intended a broad reading when it chose not to
expressly limit the meaning of “sexual abuse of a minor”; and (3) Congress
conspicuously failed to narrow the definition by requiring a minimum sentence
length. Id. at 605-06.
The Second Circuit has affirmed the BIA’s conclusion that the New York
crime of rape in the third degree under Penal Law § 130.25(2) constitutes an
aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Mugalli v. Ashcroft, 258 F.3d
52, 56-57 (2nd Cir. 2001). That section makes it unlawful for an individual older
than 21 to engage in sexual intercourse with another person younger than 17.
N.Y. PENAL LAW § 130.25(2) (2001). The court explained that the BIA’s
determination was consistent with both Congressional intent to provide “a
comprehensive scheme to cover crimes against children,” and the generally
understood meaning of the term “sexual abuse.” Id. at 58-59 (citations omitted).
2
Penal Law § 110.00 states, “A person is guilty of an attempt to commit
a crime when, with intent to commit a crime, he engages in conduct which tends
to effect the commission of such crime.” N.Y. PENAL LAW § 110.00 (1965).
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Because the conduct prohibited by § 130.30(1) fits squarely within the
“ordinary, contemporary, common reading of the phrase sexual abuse of a
minor,” and consistent with our holding in Zavala-Sustaita and the Second
Circuit’s holding in Mugalli, we affirm the BIA’s conclusion that Husband’s
conviction for the New York crime of attempted rape in the second degree
constitutes an aggravated felony. See Zavala-Sustaita, 214 F.3d at 604.
Since Husband’s conviction qualifies as an aggravated felony, we lack
jurisdiction to review the BIA’s determination of his claims under the
Convention Against Torture unless he raises a question of law or a constitutional
claim. See 8 U.S.C. § 1252(a)(2)(C)&(D). Husband’s arguments on appeal do not
raise a question of law or a constitutional question over which this court has
jurisdiction. See Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir.
2006). Accordingly, Husband’s petition for review must be dismissed.
The petition for review is DENIED IN PART and DISMISSED IN PART.
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