Sergio Reyes-Alvarez v. Eric Holder, Jr. ( 2015 )

FILED
NOT FOR PUBLICATION MAR 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO REYES-ALVAREZ, AKA No. 13-73487
Sergio Alvarez, AKA Sergio Reyes
Alvarez, Agency No. A079-375-811
Petitioner,
MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2014
San Francisco, California
Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.
Petitioner Sergio Reyes-Alvarez (Reyes-Alvarez) petitions for review of a
decision of the Board of Immigration Appeals (BIA) dismissing his appeal.
Reyes-Alvarez contends that the BIA erred in concluding that his California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction for lewd and lascivious acts upon a child aged 14 or 15 is categorically
a conviction for a “crime of child abuse.”
Giving Chevron deference to the BIA’s definition of the federal generic
offense of a crime of child abuse, Reyes-Alvarez’s California conviction is a
categorical match. See Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en
banc) (explaining that we defer to the BIA’s definition of a federal generic offense
under “the Chevron framework if the decision is published or directly controlled
by a published decision”).
The mens rea requirement of California Penal Code § 288(c)(1) fits within
the federal generic definition because section 288(c)(1) punishes only “willful[]”
acts, while the federal generic crime encompasses anything from “criminally
negligent” to “intentional” acts. Matter of Velazquez-Herrera, 24 I. & N. Dec.
503, 512 (BIA 2008) (defining “crime of child abuse broadly” as “any offense
involving an intentional, knowing, reckless, or criminally negligent act or omission
that constitutes maltreatment of a [person under 18 years old] or that impairs [such
a person’s] physical or mental well-being, including sexual abuse or exploitation”).
Section 288(c)(1) also meets the actus reus requirement in the federal definition
because a “lewd and lascivious act” upon a child necessarily involves
“maltreatment” of the child. Id.; see also People v. Shockley, 314 P.3d 798, 800
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(Cal. 2013) (noting that § 288 “assumes that young victims suffer profound harm
whenever they are perceived and used as objects of sexual desire”).
As Reyes-Alvarez has not sought a stay of removal from the BIA and has
not shown that a stay of removal is warranted pending a collateral challenge to his
state court conviction, the request for a stay is denied. See Leiva-Perez v. Holder,
640 F.3d 962, 971 (9th Cir. 2011).
PETITION DENIED.
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