Parrilla v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRENEO P. PARRILLA, 
Petitioner, No. 03-74010
v.
 Agency No.
A73-159-170
ALBERTO R. GONZALES*, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 11, 2005—Seattle, Washington
Filed July 11, 2005
Before: Ferdinand F. Fernandez, A. Wallace Tashima, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould;
Partial Concurrence and Partial Dissent by Judge Fernandez
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
8019
8022 PARRILLA v. GONZALES
COUNSEL
Antonio Salazar, Salazar Law Office, Seattle, Washington, for
the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
U.S. Department of Justice, M. Jocelyn Lopez Wright, Assis-
tant Director, Office of Immigration Litigation, Bryan S.
Beier, Trial Attorney, Washington, D.C., for the respondent.
PARRILLA v. GONZALES 8023
OPINION
GOULD, Circuit Judge:
Ireneo Parrilla petitions for review of the decision of the
Board of Immigration Appeals (BIA) denying his application
for cancellation of removal. The BIA determined that Parrilla
was ineligible for cancellation pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) because his conviction for communicat-
ing with a minor for immoral purposes under Washington
Revised Code section 9.68A.090 was an aggravated felony
that met the definition of “sexual abuse of a minor.” 8 U.S.C.
§ 1101(a)(43)(A). Although we hold that section 9.68A.090
did not categorically proscribe “sexual abuse of a minor,” the
government provided an information, a guilty plea and a Cer-
tification for Determination of Probable Cause that allow us
to conclude, under the modified categorical approach, that
Parrilla committed an offense rendering him ineligible for
cancellation of removal. We have jurisdiction pursuant to 8
U.S.C. § 1252(a), Fernandez-Ruiz v. Gonzales, 410 F.3d 585
(9th Cir. 2005), and we deny the petition for review.
I
Ireneo Parrilla, a citizen of the Philippines, entered the
United States on an H-1A non-immigrant healthcare worker
visa in 1994. He adjusted his status to that of a lawful perma-
nent resident in 1995.
On January 17, 2001, Parrilla was arrested and charged
with Child Molestation in the First Degree in violation of
Washington Revised Code section 9A.44.083. The informa-
tion filed with respect to this charge incorporated a Certifica-
tion for Determination of Probable Cause (hereinafter CDPC).
The CDPC described the December 25, 2000 molestation of
a seven-year-old girl and stated that Parrilla “repeatedly
reached inside [the victim’s] dress and touched her between
her legs where she goes to the bathroom on top of her under-
8024 PARRILLA v. GONZALES
wear.” It also specified that the victim’s mother had witnessed
part of the molestation, that Parrilla had been intoxicated at
the time of the assault, and that Parrilla had apologized for his
conduct.
The record indicates that Parrilla and the prosecution
reached a plea agreement. The prosecution withdrew the orig-
inal information and instead filed a First Amended Informa-
tion that stated:
I, Norm Maleng, Prosecuting Attorney for King
County in the name and by the authority of the state
of Washington, by this Amended Information do
accuse the defendant(s) of the crime of communica-
tion with a minor for immoral purposes.
That the defendant, Ireneo Parilla [sic], in King
County, Washington, (on or about) the 25th day of
December, 2000, did communicate with [the victim],
a child under the age of 18 years, for immoral pur-
pose of a sexual nature, [c]ontrary to RCW
9.68A.090, and against the peace and dignity of the
state of Washington.
Parrilla then pled guilty. His written guilty plea stated in
part, “I understand the Court will review the certification for
determination of probable cause in determining if there is a
factual basis for this plea and for sentencing.” Based on his
guilty plea, Parrilla was convicted of communicating with a
minor for immoral purposes in violation of Washington
Revised Code section 9.68A.090 on April 12, 2002.
The Department of Homeland Security then initiated depor-
tation proceedings. The Immigration Judge found that section
9.68A.090 did not categorically prohibit “sexual abuse of a
minor,” but that the First Amended Information, the CDPC,
and the guilty plea together established that Parrilla was guilty
of an aggravated felony involving “sexual abuse of a minor”
PARRILLA v. GONZALES 8025
under the modified categorical approach. The BIA affirmed in
a reasoned decision, holding that:
An offense may qualify as “sexual abuse of a minor”
under section [1101(a)(43)(A)] of the Act if it
involves “the employment, use, persuasion, induce-
ment, enticement, or coercion of a child to engage in,
or assist another person to engage in, sexually
explicit conduct or the rape, molestation, prostitu-
tion, or other form of sexual exploitation of children,
or incest with children.”
The BIA reasoned that the conviction under section
9.68A.090 rendered Parrilla ineligible for cancellation of
removal under both the categorical and the modified categori-
cal approaches. Parrilla petitions for review of this decision.
II
In general, an alien is barred from cancellation of removal
if he or she has been convicted of an aggravated felony under
8 U.S.C. § 1227(a)(2)(A)(iii). One type of aggravated felony
is “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).
We review de novo whether an alien has been convicted of
an aggravated felony, Ruiz-Morales v. Ashcroft, 361 F.3d
1219, 1221 (9th Cir. 2004), but our review is subject to estab-
lished principles of deference to administrative agencies, INS
v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Murillo-
Espinoza v. INS, 261 F.3d 771, 773 (9th Cir. 2001). When
interpreting a provision of the Immigration and Nationality
Act (INA), we must defer to the BIA if the statute is silent or
ambiguous with respect to the specific issue before the agency
and the BIA’s interpretation is “ ‘based on a permissible con-
struction of the statute.’ ” Aguirre-Aguirre, 526 U.S. at 424
(quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 843 (1984)). We do not, however, defer
to BIA interpretations of either state law, Garcia-Lopez v.
8026 PARRILLA v. GONZALES
Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003), or provisions of
the federal criminal code that are referenced within, but not
part of, the INA, Singh v. Ashcroft, 386 F.3d 1228, 1230-31
(9th Cir. 2004).
[1] In this case, 8 U.S.C. § 1101(a)(43)(A) does not define
the term “sexual abuse of a minor” by reference to state law
or to another portion of the U.S. Code; in fact,
§ 1101(a)(43)(A) does not define “sexual abuse of a minor”
at all. Because the INA is silent on the meaning of “sexual
abuse of a minor,” we ask whether the definition provided by
the BIA “ ‘is based on a permissible construction of the stat-
ute.’ ” Aguirre-Aguirre, 526 U.S. at 424 (quoting Chevron,
467 U.S. at 843). The BIA opinion interpreted “sexual abuse
of a minor” to mean any offense that “involves ‘the employ-
ment, 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, prostitu-
tion, or other form of sexual exploitation of children, or incest
with children.’ ” Because this language is not clearly contrary
to the plain meaning of the statute, we defer to the BIA’s
interpretation. See id.
[2] The definition the BIA employed in this case accords
with our case law. In United States v. Pallares-Galan we held
that a conviction for annoying or molesting a child under the
age of eighteen was not “sexual abuse of a minor,” even
though the state courts had interpreted the statute to require
that the perpetrator be motivated by an abnormal sexual inter-
est in children. 359 F.3d 1088, 1100-02 (9th Cir. 2004). In
reaching our conclusion that the fact of conviction did not
show “sexual abuse of a minor,” we stated, “ ‘[a]buse’
requires more than improper motivation; it requires conduct
that is abusive.” Id. at 1101-02. Consistent with this principle,
we have held that “sexual abuse of a minor” encompasses
both lewdness with a child under the age of fourteen, Cedano-
Viera, 324 F.3d at 1065-66, and a lewd or lascivious act
including any part of the body of a child under the age of
PARRILLA v. GONZALES 8027
fourteen, United States v. Baron-Medina, 187 F.3d 1144,
1146-47 (9th Cir. 1999).
In inquiring into whether an offense is an aggravated fel-
ony, of which “sexual abuse of a minor” is one statutorily des-
ignated type, we first consider the categorical approach. See
Taylor v. United States, 495 U.S. 575, 600-02 (1990). Under
the categorical approach, an offense meets the definition of
“sexual abuse of a minor” only if any and all conduct pro-
scribed by the criminal statute of conviction falls within that
category. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002).
If the statute that led to the prior conviction does not categori-
cally prohibit “sexual abuse of a minor,” we next consider the
modified categorical approach. Shepard v. United States, 125
S. Ct. 1254, 1259-60 (2005). Under the modified categorical
approach, we may consider a limited number of judicially
noticeable documents to determine whether, although the stat-
ute of conviction is overinclusive, the defendant was in fact
convicted of a crime that met the definition of “sexual abuse
of a minor.” Id.; Lara-Chacon v. Ashcroft, 345 F.3d 1148,
1153 (9th Cir. 2003).
A
[3] We first consider whether Washington Revised Code
section 9.68A.090 categorically covered conduct that is “sex-
ual abuse of a minor” as the BIA has defined that term.1
Under the categorical approach, we may “look only to the fact
of conviction and the statutory definition of the prior offense.”
Taylor, 495 U.S. at 602; Ruiz-Morales, 361 F.3d at 1221-22.
[4] In 2002, Parrilla was convicted of violating Washington
Revised Code section 9.68A.090, which, at that time, stated:
1
Since the date of Parrilla’s conviction, the State of Washington has
amended section 9.68A.090.
8028 PARRILLA v. GONZALES
A person who communicates with a minor for
immoral purposes is guilty of a gross misdemeanor,
unless that person has previously been convicted
under this section or of a felony sexual offense under
chapter 9.68A, 9A.44, or 9A.64 RCW or of any
other felony sexual offense in this or any other state,
in which case the person is guilty of a class C felony
punishable under chapter 9A.20 RCW.
Wash. Rev. Code § 9.68A.090 (2000) (current version at
Wash. Rev. Code § 9.68A.090 (2003 & Supp. 2005)). The
Washington State Supreme Court interpreted this language to
prohibit, “any spoken word or course of conduct with a minor
for purposes of sexual misconduct.” State v. Schimmelpfennig,
594 P.2d 442, 447 (Wash. 1979). The statute proscribed com-
munications related to “the rather broad area of ‘sexual mis-
conduct,’ ” including offenses throughout the Washington
Revised Code, State v. McNallie, 846 P.2d 1358, 1363 (Wash.
1993), but did not prohibit communicating with a minor
regarding sexual conduct that would have been legal if per-
formed, State v. Luther, 830 P.2d 674, 676 (Wash. Ct. App.
1992).
[5] The 2002 version of section 9.68A.090 was not a cate-
gorical match with “sexual abuse of a minor.” Some of the
conduct prohibited by section 9.68A.090 “involve[d] ‘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.’ ” See, e.g., McNallie, 846 P.2d at
1364; State v. Pietrzak, 997 P.2d 947, 949-50 (Wash. Ct. App.
2000); State v. Falco, 796 P.2d 796, 797 (Wash. Ct. App.
1990). However, Washington law makes clear that the reach
of section 9.68A.090 was not limited to only abusive offenses.
Among the “immoral purposes” contained in Chapter 9.68
and elsewhere in the Washington Revised Code were offenses
that did not fall within the definition of “sexual abuse of a
PARRILLA v. GONZALES 8029
minor” as the BIA interpreted that term in its opinion. See,
e.g., Wash. Rev. Code § 9.68.030 (providing information on
how to get an unlawful abortion); id. § 9.68.130 (displaying
pornography visible from a public thoroughfare); id.
§ 9.68A.150 (allowing a minor onto the premises of a live
erotic performance). Although conduct such as talking to a
minor for the purpose of allowing him or her into a live erotic
performance is not commendable, neither is it “abusive” as
our precedent has explained that term. See Pallares-Galan,
359 F.3d at 1101-02. We hold that the 2002 version of section
9.68A.090 did not define “sexual abuse of a minor” under the
categorical approach.
B
[6] The government also contends that the conduct pro-
scribed by section 9.68A.090 fell within the definition of an
“attempt . . . to commit” an offense constituting “sexual abuse
of a minor.” 8 U.S.C. § 1101(43)(A), (U). We reject this argu-
ment because, even granting the premise that “communica-
tion” necessarily equates to “attempt,” some of the “immoral
purposes” proscribed in the Washington Revised Code do not
fall within the definition of “sexual abuse of a minor.” See,
e.g., Wash. Rev. Code §§ 9.68.030, 9.68.130, 9.68A.150. The
2002 language of section 9.68A.090 reached beyond conduct
that could be “sexual abuse of a minor,” whether we consider
a completed offense or an attempt. We thus hold that section
9.68A.090 did not describe “sexual abuse of a minor” under
the categorical approach, and that the BIA erred in concluding
otherwise. We next turn to an assessment of Parrilla’s state-
court conviction as it is described in the First Amended Infor-
mation, the guilty plea, and the CDPC.
III
Under the modified categorical approach, we consider
whether the government has produced judicially noticeable
documents that allow us to conclude that, although some
8030 PARRILLA v. GONZALES
offenses under section 9.68A.090 did not meet the definition
of “sexual abuse of a minor,” the specific offense of which
Parrilla was convicted fell within this category.
[7] The purpose of the modified categorical approach is “to
make the requisite determination respecting the nature of a
prior conviction without resorting to the type of mini-trials we
deem to be wholly inappropriate in this context.” Tokatly v.
Ashcroft, 371 F.3d 613, 621 (9th Cir. 2004). In keeping with
this purpose, under the modified categorical approach, our
inquiry is “generally limited to examining the statutory defini-
tion, charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Shepard, 125 S. Ct.
at 1257; Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th
Cir. 2003) (summarizing documents that may be used under
the modified categorical approach); United States v. Franklin,
235 F.3d 1165, 1168-73 (9th Cir. 2000) (same). An informa-
tion and a guilty plea, considered together, are generally suffi-
cient. United States v. Bonat, 106 F.3d 1472, 1477 (9th Cir.
1997). Documents and testimony that would require us to
make factual determinations that were not necessarily made in
the prior criminal proceeding lie outside the scope of our
inquiry under the modified categorical approach. Tokatly, 371
F.3d at 623-24 (testimony of a crime victim); Lara-Chacon,
345 F.3d at 1153-54 (a pre-sentencing report); United States
v. Melton, 344 F.3d 1021, 1029 n.4 (9th Cir. 2003) (police
affidavit establishing probable cause).
Although police reports and complaint applications, stand-
ing alone, may not be used to enhance a sentence following
a criminal conviction, Shepard, 125 S. Ct. at 1257, 1259-60,
the contents of these documents may be considered if specifi-
cally incorporated into the guilty plea or admitted by a defen-
dant. United States v. Smith, 390 F.3d 661, 664-65 (9th Cir.
2004) (approving use of “the factual basis for the charge, as
set forth by the prosecutor at the change of plea hearing” to
which “defense counsel did not object”); United States v.
PARRILLA v. GONZALES 8031
Lopez-Patino, 391 F.3d 1034, 1037-38 (9th Cir. 2004)
(admissions the defendant made at his plea colloquy); Fer-
reira v. Ashcroft, 390 F.3d 1091, 1098-1100 (9th Cir. 2004)
(restitution order referenced in a plea agreement). These pre-
cedents on the significance of statements and submissions
made or admitted by a defendant in pleading guilty, taken
from both criminal and immigration contexts, are persuasive
to our resolution of this case.
[8] Here, the record of conviction in Washington state court
includes both a form information, which recites the bare ele-
ments of section 9.68A.090, and a guilty plea, in which Par-
rilla expressly states, “I understand the Court will review the
certification for determination of probable cause in determin-
ing if there is a factual basis for this plea and for sentencing.”
The referenced CDPC in turn had reported that Parrilla “re-
peatedly reached inside [the victim’s] dress and touched her
between her legs where she goes to the bathroom on top of
her underwear.” We conclude that, by explicitly incorporating
the CDPC into his guilty plea, Parrilla in context admitted the
facts in the CDPC and rendered it judicially noticeable for the
purpose of applying the modified categorical approach. See
Ferreira, 390 F.3d at 1098-1101. The CDPC here is not
merely a bare police report, cf. Shepard, 125 S. Ct. at 1258-
59, but is rather an explicit statement “in which the factual
basis for the plea was confirmed by the defendant.” Id. at
1263. In light of Parrilla’s incorporation of the CDPC in his
guilty plea, relying upon the CDPC to establish the elements
of the crime to which Parrilla pled guilty does not undermine
the purposes of our limited modified categorical inquiry. See
Smith, 390 F.3d at 664-65; Tokatly, 371 F.3d at 621.
[9] Considering the First Amended Information and the
guilty plea, including the incorporated CDPC, we conclude
that “repeatedly reach[ing] inside [a seven year old’s] dress
and touch[ing] her between her legs where she goes to the
bathroom on top of her underwear” meets the definition of an
aggravated felony involving “sexual abuse of a minor” under
8032 PARRILLA v. GONZALES
8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). Such conduct
“involves ‘the employment . . . of a child to engage in . . .
molestation.’ ” We accordingly conclude that Parrilla is ineli-
gible for cancellation of removal and deny the petition for
review. Id.
DENIED.
FERNANDEZ, Circuit Judge, concurring and dissenting:
In my view, Washington Revised Code § 9.68A.090 cate-
gorically prohibited sexual abuse of a minor within the mean-
ing of 8 U.S.C. § 1101(a)(43)(A). That is, in my opinion, the
Washington courts have placed a sufficiently narrowing con-
struction on what might otherwise have been an overbroad
statute for our purposes. See State v. McNallie, 846 P.2d
1358, 1364 (Wash. 1993); State v. Wissing, 833 P.2d 424, 429
(Wash Ct. App. 1992); State v. Luther, 830 P.2d 674, 675—
76 (Wash. Ct. App. 1992).
In addition, because, as the above cases indicate, Washing-
ton law requires that communication be for the purpose of
actually involving a child in sexual misconduct, I do not
believe that giving information about an abortion, unlawful or
not, or making pornographic photography visible to the pub-
lic, or allowing entry to an erotic performance business comes
within the meaning of communication with a minor for
immoral purposes.
Thus, I do not agree with parts II A and B of the majority
opinion, and dissent in that respect. However, I do concur in
the remainder of the opinion and in the result.
Therefore, with the exception noted, I concur in the excel-
lent majority opinion.