Saul Aguilar-Sanchez v. Merrick Garland ( 2023 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 22-3598
    ___________________________
    Saul Aguilar-Sanchez
    Petitioner
    v.
    Merrick B. Garland, Attorney General of the United States
    Respondent
    ____________
    Petition for Review of an Order of the
    Board of Immigration Appeals
    ____________
    Submitted: October 17, 2023
    Filed: December 4, 2023
    ____________
    Before GRUENDER, STRAS, and KOBES, Circuit Judges.
    ____________
    GRUENDER, Circuit Judge.
    Saul Aguilar-Sanchez is a Mexican citizen who was admitted to the United
    States in 2015 as a lawful permanent resident. In 2022, he was convicted in
    Minnesota of “intentionally . . . hir[ing] or offer[ing] or agree[ing] to hire an
    individual who [he] reasonably believe[d] to be under the age of 16 years but at least
    13 years to engage in sexual penetration or sexual contact.” 
    Minn. Stat. § 609.324
    ,
    subd. 1(b)(3). The Department of Homeland Security subsequently initiated
    removal proceedings against Aguilar-Sanchez. The Immigration Judge sustained
    the charge of removability and the Board of Immigration Appeals (“BIA”) dismissed
    Aguilar-Sanchez’s appeal. He petitions for review of the BIA’s decision and
    advances two arguments. He first argues that the BIA applied an incorrect generic
    federal definition of “sexual abuse of a minor,” either because a BIA decision
    defining the term was overruled or because that BIA decision was wrongly decided
    and does not warrant Chevron deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def.
    Council, Inc., 
    467 U.S. 837
     (1984). Alternatively, he argues that even under the
    BIA’s current generic federal definition, the least of the acts criminalized by
    § 609.324, subd. 1(b)(3) is not categorically “sexual abuse of a minor.” We deny
    the petition for review.
    “Any alien who is convicted of an aggravated felony at any time after
    admission is deportable.” 
    8 U.S.C. § 1227
    (a)(2)(A)(iii). Although we generally
    “lack jurisdiction to review any final order of removability against an alien convicted
    of, inter alia, an aggravated felony,” we retain jurisdiction to review de novo
    “constitutional claims or questions of law, such as whether a crime is an aggravated
    felony.” Roberts v. Holder, 
    745 F.3d 928
    , 930 (8th Cir. 2014); see also 
    8 U.S.C. § 1252
    (a)(2)(D). “Sexual abuse of a minor” is an aggravated felony. 
    8 U.S.C. § 1101
    (a)(43)(A). Hence, if Aguilar-Sanchez’s Minnesota conviction constitutes
    “sexual abuse of a minor,” then it is an aggravated felony, and he is deportable.
    To review whether Aguilar-Sanchez’s Minnesota conviction constitutes
    “sexual abuse of a minor,” “we look only to the elements of the criminal statute and
    apply the so-called categorical approach,” considering “whether the least of the acts
    criminalized by the state statute falls within the generic federal definition of sexual
    abuse of a minor.” See Garcia-Urbano v. Sessions, 
    890 F.3d 726
    , 728 (8th Cir.
    2018) (internal quotation marks omitted); see also Gonzalez v. Wilkinson, 
    990 F.3d 654
    , 659 (8th Cir. 2021) (noting that there must be a “realistic probability, not a
    theoretical possibility” that the least of the acts criminalized falls outside the generic
    federal definition). The parties agree that the “least of the acts criminalized” under
    the statute is “intentionally . . . offer[ing] . . . to hire an individual who the actor
    -2-
    reasonably believes to be under the age of 16 years but at least 13 years to engage in
    sexual penetration or sexual contact.”1 
    Minn. Stat. § 609.324
    , subd. 1(b)(3).
    In order to apply the categorical approach, we must identify the correct
    generic federal definition of “sexual abuse of a minor.” “Congress did not define
    ‘sexual abuse of a minor,’ and the [BIA] has interpreted the phrase through
    case-by-case adjudication.” Garcia-Urbano, 
    890 F.3d at 728
    . The BIA relies on a
    criminal procedure statute, 
    18 U.S.C. § 3509
    (a)(8), as a “useful identification of the
    forms of sexual abuse” of a minor. In re Rodriguez-Rodriguez, 
    22 I. & N. Dec. 991
    ,
    995 (BIA 1999). Section 3509(a)(8) defines “sexual abuse” of a minor to include:
    the employment, use, persuasion, inducement, enticement, or coercion
    of a child to engage in, or assist another person to engage in, sexually
    explicit conduct or the rape, molestation, prostitution, or other form of
    sexual exploitation of children, or incest with children.
    Aguilar-Sanchez argues that the BIA should not use § 3509(a)(8) for the
    generic federal definition of “sexual abuse of a minor,” either because the Supreme
    Court overruled In re Rodriguez-Rodriguez in Esquivel-Quintana v. Sessions, 
    581 U.S. 385
     (2017), or because In re Rodriguez-Rodriguez was wrongly decided and
    does not warrant Chevron deference. Instead of § 3509(a)(8), he argues that we
    should adopt as the generic federal definition one of his two proposed alternatives:
    1
    At oral argument, in response to questions from the court, Aguilar-Sanchez
    suggested that the statute criminalizes more than “sexual abuse of a minor,” 
    8 U.S.C. § 1101
    (a)(43)(A), because it reaches offers “to hire an individual who the actor
    reasonably believes to be” a minor, without requiring an actual minor victim, 
    Minn. Stat. § 609.324
    , subd. 1(b)(3). But cf. 
    8 U.S.C. § 1101
    (a)(43)(U) (providing that an
    attempt to commit an aggravated felony is itself an aggravated felony); Shroff v.
    Sessions, 
    890 F.3d 542
    , 544 & n.4 (5th Cir. 2018) (holding that a petitioner
    “apprehended in a sting operation by police posing as a fifteen-year-old” had
    “attempt[ed] to commit sexual abuse of a minor”). He did not raise this issue at any
    point before, including in his briefing to this court, so it is both unexhausted and
    waived, and we decline to address it. See Marambo v. Barr, 
    932 F.3d 650
    , 654–55
    (8th Cir. 2019); Chay-Velasquez v. Ashcroft, 
    367 F.3d 751
    , 756 (8th Cir. 2004).
    -3-
    the definition in 
    18 U.S.C. § 2243
    (a), the federal crime of “sexual abuse of a minor,”
    or the BIA’s current § 3509(a)(8) definition with an added mens rea element. His
    first proposed definition has already been rejected by the Supreme Court. Under his
    second proposed definition, his conviction would still be categorically “sexual abuse
    of a minor.”
    Aguilar-Sanchez first argues that Esquivel-Quintana overruled In re
    Rodriguez-Rodriguez. However, Aguilar-Sanchez’s interpretation is unsupported.
    Esquivel-Quintana never mentioned In re Rodriguez-Rodriguez, and the Supreme
    Court repeatedly emphasized the narrowness of Esquivel-Quintana’s holding. See
    581 U.S. at 397-98. Many of our sister circuits have likewise concluded that
    Esquivel-Quintana overruled neither In re Rodriguez-Rodriguez nor pre-existing
    circuit precedent defining the generic offense of “sexual abuse of a minor.” See
    Cabeda v. Att’y Gen. of United States, 
    971 F.3d 165
    , 171 (3d Cir. 2020) (“[T]he
    Court very deliberately ruled narrowly. It did not purport to establish a full definition
    of ‘sexual abuse of a minor[.]’”); Acevedo v. Barr, 
    943 F.3d 619
    , 623 (2d Cir. 2019);
    Thompson v. Barr, 
    922 F.3d 528
    , 534 (4th Cir. 2019); Correa-Diaz v. Sessions, 
    881 F.3d 523
    , 527 (7th Cir. 2018); Shroff v. Sessions, 
    890 F.3d 542
    , 545 (5th Cir. 2018).
    Moreover, the Supreme Court in Esquivel-Quintana considered and rejected
    Aguilar-Sanchez’s first proposal: that the BIA should look solely to § 2243(a) to
    define “sexual abuse of a minor.” The Court declined to “import[] wholesale” the
    definition in § 2243(a) into the Immigration and Naturalization Act (“INA”), noting
    that “the INA does not cross-reference § 2243(a), whereas many other aggravated
    felonies in the INA are defined by cross-reference to other provisions of the United
    States Code.” Esquivel-Quintana, 581 U.S. at 395. The Supreme Court saw that
    cross-referencing § 2243(a) “would categorically exclude the statutory rape laws of
    most states,” thereby “close to nullifying” the term “sexual abuse of a minor.” Id.
    “For that reason, the Court declined to adopt the very definition from 
    18 U.S.C. § 2243
    (a) that [Aguilar-Sanchez] advances.” See Garcia-Urbano, 
    890 F.3d at 730
    (applying Esquivel-Quintana to conclude that 
    Minn. Stat. § 609.487
    , subd. 3 is
    categorically “sexual abuse of a minor”). Esquivel-Quintana did not overrule In re
    -4-
    Rodriguez-Rodriguez, and the Supreme Court’s                  decision   forecloses
    Aguilar-Sanchez’s first proposed alternative definition.
    Aguilar-Sanchez’s second proposal—that the generic federal definition
    requires a mens rea requirement of “intent to engage in sexual conduct or to gain
    sexual arousal or gratification”—hinges on his assertion that such intent is not an
    element of 
    Minn. Stat. § 609.324
    , subd. 1(b)(3). In a similar vein, he argues that
    even under the generic federal definition actually employed by the BIA, § 609.324,
    subd. 1(b)(3) does not qualify as “sexual abuse of a minor” because it criminalizes
    behavior such as “street harassment” and “catcalling.” Both arguments fail.
    Section 609.324, subd. 1(b)(3) includes a mens rea element. As the Minnesota
    Supreme Court explained when analyzing “offers to engage for hire” in prostitution:
    “[t]he evidence must demonstrate, beyond a reasonable doubt, the defendant’s intent
    to engage for hire in sexual activity.” State v. Bennett, 
    258 N.W.2d 895
    , 897 (Minn.
    1977); see also State v. Akramov, No. A20-0085, 
    2021 WL 561556
    , at *3-4 (Minn.
    Ct. App. Feb. 16, 2021) (upholding conviction under § 609.324, subd. 1(b)(3)
    because the defendant “intended to engage in sexual penetration or sexual conduct”);
    State v. Abdulazeez, No. A20-0233, 
    2021 WL 1168935
    , at *4 (Minn. Ct. App. Mar.
    29, 2021) (upholding conviction under § 609.324, subd. 1(b)(3) because the
    defendant “intended to engage in sexual activity with the fictitious girl”). Section
    609.324, subd. 1(b)(3) criminalizes hiring someone the defendant believes to be a
    minor only if the defendant does so “to engage in sexual penetration or sexual
    contact.” Minnesota defines “sexual penetration” and “sexual contact” as acts taken
    for the purpose of satisfying the defendant’s sexual impulses. See 
    Minn. Stat. § 609.321
    , subd. 10-11. Thus, to be convicted under § 609.324, subd. 1(b)(3),
    Aguilar-Sanchez must have been acting for the purpose of satisfying his sexual
    impulses.
    Aguilar-Sanchez likewise fails to show that § 609.324, subd. 1(b)(3) is
    broader than the 
    18 U.S.C. § 3509
    (a)(8) generic federal definition actually employed
    by the BIA. As an initial matter, the § 3509(a)(8) terms “employment” and “use” of
    -5-
    a minor are categorical matches for the commercial activity criminalized under
    
    Minn. Stat. § 609.324
    , subd. 1(b)(3), namely offering to hire for sex someone the
    defendant believes to be a 13-, 14-, or 15-year-old minor. Furthermore, the case
    Aguilar-Sanchez cites as a supposed example of how “street harassment” or
    “catcalling” could be sufficient for conviction is an adult prostitution case that never
    mentions § 609.324, subd. 1(b)(3). See State v. Abdelrahim, No. A18-1094, 
    2019 WL 2167767
     (Minn. Ct. App. May 20, 2019). Even if the case were on point, it
    shows that Minnesota courts do not treat “offers” to hire for sex as encompassing
    “street harassment”: The defendant in that case approached a woman and asked,
    “how much?” She responded, “for what?” and he replied, “for sex,” “to pay you for
    sex.” 
    Id. at *1-2
    . He then tried to convince the woman to have sex with him. 
    Id.
    The Minnesota Court of Appeals concluded that “the only reasonable inference to
    be drawn from the circumstances proved is that Abdelrahim offered to hire [the
    woman] for sex.” 
    Id. at *3
    . There is no “realistic probability,” Gonzalez, 990 F.3d
    at 659, that § 609.324, subd. 1(b)(3) criminalizes “street harassment” or “catcalling.”
    Aguilar-Sanchez’s § 609.324, subd. 1(b)(3) conviction would be categorically
    “sexual abuse of a minor” even under his own proposed definition. Thus, any error
    committed by the BIA in relying on In re Rodriguez-Rodriguez and the 
    18 U.S.C. § 3509
    (a)(8) definition is at most harmless, “because we have not the slightest
    uncertainty as to the outcome of the proceeding were we to remand the case[.]”
    Aguilar v. Garland, 
    60 F.4th 401
    , 407 (8th Cir. 2023); see also 
    id.
     (“[T]he Chenery
    doctrine doesn’t prohibit courts from considering whether an agency error is
    harmless.”); 
    5 U.S.C. § 706
     (in reviewing agency action, “due account shall be taken
    of the rule of prejudicial error”); Shinseki v. Sanders, 
    556 U.S. 396
    , 409 (2009)
    (“[T]he burden of showing that an error is harmful normally falls upon the party
    attacking the agency’s determination.”).2
    2
    For these reasons, we need not decide whether In re Rodriguez-Rodriguez is
    entitled to Chevron deference. Also informing our decision is the fact that the
    Supreme Court is set to decide whether to overrule Chevron or limit the
    circumstances in which deference is required, including in situations of statutory
    silence. See Loper Bright Enters., Inc. v. Raimondo, 
    45 F.4th 359
     (D.C. Cir.
    -6-
    Aguilar-Sanchez’s first proposed alternative definition fails under
    Esquival-Quintana. Under his second proposed alternative definition, his crime of
    conviction would still be categorically “sexual abuse of a minor.” Thus, we deny
    the petition for review.
    ______________________________
    2022), cert. granted, 598 U.S. ---, 
    143 S. Ct. 2429
     (May 1, 2023) (No. 22-451);
    Relentless, Inc. v. U.S. Dep’t of Com., 
    62 F.4th 621
     (1st Cir. 2023), cert. granted,
    601 U.S. ---, 
    2023 WL 6780370
     (Oct. 13, 2023) (No. 22-1219); see also Japarkulova
    v. Holder, 
    615 F.3d 696
    , 701 (6th Cir. 2010) (reviewing for harmless error when the
    court could not apply Chevron deference in upholding the BIA’s determination that
    a death threat did not constitute “past persecution”).
    -7-
    

Document Info

Docket Number: 22-3598

Filed Date: 12/4/2023

Precedential Status: Precedential

Modified Date: 12/4/2023