Rebilas v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYSZARD KAZIMIENZ REBILAS, a.k.a.  No. 05-76988
Richard Rebilas, Agency No.
Petitioner, A13-935-483
v.
 ORDER
MICHAEL B. MUKASEY,* Attorney AMENDING
General, OPINION AND
Respondent. AMENDED
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 15, 2007—San Francisco, California
Filed November 2, 2007
Amended May 16, 2008
Before: Michael Daly Hawkins, Sidney R. Thomas, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
5691
REBILAS v. MUKASEY 5693
COUNSEL
Sarnata Reynolds, Esq., Berkeley, California, David Assar,
Esq., Asser Law Group, Phoenix, Arizona, and Ali Saidi,
Esq., Berkeley, California, for the petitioner.
Peter D. Keisler, Esq., John C. Cunningham, Esq., Norah
Ascoli Schwarz, Esq., Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for the respondent.
ORDER
The motion to amend the opinion is granted in part. The
opinion issued on November 2, 2007, Rebilas v. Keisler, 506
F.3d 1161 (9th Cir. 2007), is amended as follows:
We delete the paragraph on page 1164 that currently reads:
5694 REBILAS v. MUKASEY
Not only is ARS § 13-1403(B) broader than the fed-
eral definition of sexual abuse of a minor, but Arizo-
na’s definition of attempt under ARS § 13-1001 is
broader than the federal definition of attempt. While
the federal definition of attempt requires the defen-
dant to commit an overt act constituting a substantial
step towards the crime, United States v. Morales-
Perez, 467 F.3d 1219, 1222 (9th Cir. 2006), Arizo-
na’s definition of attempt is satisfied if the defendant
“[i]ntentionally does or omits to do anything which
. . . is any step” in the crime. ARS § 13-1001(A)(2)
(emphasis added); see State v. Fristoe, 135 Ariz. 25,
658 P. 2d 825, 829-30 (App. 1982). Thus, attempted
public sexual indecency to a minor under Arizona
law is broader than attempted sexual abuse of a
minor under § 1101(a)(43)(A) and (U).
Rebilas, 506 F.3d at 1164. In its place, we substitute the fol-
lowing paragraph:
To hold that Rebilas’s conviction was categorically
a conviction for attempted sexual abuse of a minor
under 8 U.S.C. § 1101(a)(43)(A) and (U), we would
have to hold not only that Arizona’s definition of
public sexual indecency to a minor under ARS § 13-
1403(B) was categorically sexual abuse of a minor,
but also that Arizona’s definition of attempt under
ARS §§ 13-1001 was a categorical match with the
federal definition of attempt. This would require a
second Taylor analysis, comparing the elements of
attempt under Arizona law and the elements of
attempt under 8 U.S.C. § 1101(a)(43)(U). Because
we hold that public sexual indecency to a minor
under ARS § 13-1001 is not categorically sexual
abuse of a minor under 8 U.S.C. § 1101(a)(43)(A),
we need not engage in that analysis here.
No further filings will be accepted in this closed case.
REBILAS v. MUKASEY 5695
OPINION
BEA, Circuit Judge:
Petitioner Ryszard Kazimienz Rebilas (“Rebilas”), a native
and citizen of Poland, petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision denying petitioner’s
motion for reconsideration of the BIA’s earlier holding that
petitioner’s conviction for two counts of “attempted public
sexual indecency to a minor” under Arizona Revised Statutes
(“ARS”) §§ 13-1001 and 13-1403(B) constituted sexual abuse
of a minor and attempted sexual abuse of a minor under 8
U.S.C. § 1101(a)(43)(A) and (U). As such, petitioner was
found by the BIA to be removable as an aggravated felon
under 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii). Petitioner
was ordered removed and is in custody awaiting removal.
We grant the petition for review, and hold that Arizona’s
statutory definition of attempted public sexual indecency to a
minor under ARS §§ 13-1001 and 13-1403(B) includes con-
duct that falls outside the federal definition of attempted sex-
ual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and
(U). See Taylor v. United States, 495 U.S. 575, 600-02
(1990).
Because Rebilas has raised a colorable legal question as to
whether his conviction constitutes an aggravated felony, we
have jurisdiction under the REAL ID Act, 8 U.S.C.
§ 1252(a)(2)(D), to resolve the issue. Parrilla v. Gonzales,
414 F.3d 1038, 1040-41 (9th Cir. 2005).
We review the BIA’s denial of a motion to reconsider for
abuse of discretion, see Cano-Merida v. INS, 311 F.3d 960,
964 (9th Cir. 2002), and we review the BIA’s determination
of issues of law de novo, deferring to the BIA’s interpretation
of an immigration statute where that interpretation is “based
on a permissible construction of the statute.” Parrilla, 414
F.3d at 1041. This includes the definition of “sexual abuse of
5696 REBILAS v. MUKASEY
a minor” for purposes of 8 U.S.C. § 1101(a)(43)(A) and (U).
Id.Under the Taylor categorical approach, this court must look
to “the ordinary case” that is prosecuted by the state, not some
extreme hypothetical. James v. United States, 127 S. Ct. 1586,
1597 (2007). Here, there was no evidence submitted, nor
cases cited, about what types of conduct are ordinarily prose-
cuted under ARS § 13-1403(B). See Gonzales v. Duenas-
Alvarez, 127 S. Ct. 815, 822 (2007) (explaining that an
offender “must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the spe-
cial (nongeneric) manner for which he argues.”).
Rather than speculate about what conduct Arizona prose-
cutes under this statute, we examine Arizona cases where an
offender’s conviction under ARS § 13-1403(B) for sexual
contact was upheld to see if any of these convictions were
based on conduct that would not violate the federal generic
crime. Arizona v. Malott, 821 P.2d 179 (Ariz. App. 1991) falls
in that category.
[1] First, under ARS § 13-1403(B), the minor involved
does not need to be touched, nor does the minor even need to
be aware of the offender’s conduct. The minor simply needs
to be present. When the minor is unaware of the offender’s
conduct, the minor has not been “abused” as that term is com-
monly or generically defined, because the minor has not been
physically or psychologically harmed. See United States v.
Baza-Martinez, 464 F.3d 1010, 1012-16 (9th Cir. 2006)
(defining abuse as “physical or psychological harm”). Thus,
where the minor is not touched by the defendant and is
unaware of a defendant’s indecent conduct, that conduct may
not fall within the federal generic definition of sexual abuse
of a minor because the minor’s ignorance may obviate any
psychological harm. See id. at 1015-17; see also Stubbs v.
Attorney General, 452 F.3d 251, 255-56 (3d Cir. 2006).
Malott, where the children slept through the entire encounter
REBILAS v. MUKASEY 5697
between the offender and their mother, is the textbook exam-
ple of a conviction for attempted public sexual indecency to
a minor that demonstrates this principle. Malott, 821 P.2d at
180-81.
In Malott, the defendant’s conviction for public sexual
indecency to a minor under ARS § 13-1403(B) by sexual con-
tact was upheld where a woman woke to find the defendant
in her bedroom naked and masturbating.1 The woman’s two
children were also in the room, but they did not wake during
the incident. Although a minor must be in the presence of the
offender, the minor need not be aware of the offender’s
actions for the statute to apply. See Arizona v. Jannamon, 819
P.2d 1021, 1023-25 (Ariz. App. 1991) (affirming defendant’s
conviction under ARS § 13-1403(B), where the defendant
masturbated in a movie theater while sitting next to a girl,
who did not realize what she had witnessed until after defen-
dant left).
The court in Malott held that a violation of ARS § 13-
1403(B) for public sexual indecency to a minor “is committed
if the defendant is reckless about whether a minor under 15
is ‘in view or at hand’ regardless of whether the minor actu-
ally witnesses the act.” 821 P.2d at 181.
[2] Second, ARS § 13-1403(B) requires only that the
offender have been “reckless” about whether a minor under
the age of fifteen years is present. The offender does not need
to know for certain that another person is present. Therefore,
the offender’s actions do not need to involve “the employ-
ment, use, persuasion, inducement, enticement, or coercion of
a child.” See Parrilla, 414 F.3d at 1041 (deferring to the
BIA’s permissible definition of sexual abuse of a minor where
the BIA adopted the definition contained in 18 U.S.C.
§ 3509(a)(8)).
1
Under ARS § 13-1403(B), masturbation constitutes sexual contact. The
offender need not touch the minor to violate ARS § 13-1403(B). See Ari-
zona v. Williams, 99 P.3d 43, 45 (Ariz. App. 2004).
5698 REBILAS v. MUKASEY
In Parrilla, this court held that a petitioner’s conviction
under Washington Revised Code § 9.68A.090 for communi-
cating with a minor for immoral purposes was not categori-
cally sexual abuse of a minor under 8 U.S.C.
§ 1101(a)(43)(A) because the Washington law “was not lim-
ited to only abusive offenses.” Parrilla, 414 F.3d at 1043.
This court found that under the Washington law, a defendant
could be guilty simply by inviting a minor to watch an erotic
performance. Such conduct would not categorically constitute
sexual abuse of a minor.
To hold that Rebilas’s conviction was categorically a con-
viction for attempted sexual abuse of a minor under 8 U.S.C.
§ 1101(a)(43)(A) and (U), we would have to hold not only
that Arizona’s definition of public sexual indecency to a
minor under ARS § 13-1403(B) was categorically sexual
abuse of a minor, but also that Arizona’s definition of attempt
under ARS §§ 13-1001 was a categorical match with the fed-
eral definition of attempt. This would require a second Taylor
analysis, comparing the elements of attempt under Arizona
law and the elements of attempt under 8 U.S.C.
§ 1101(a)(43)(U). Because we hold that public sexual inde-
cency to a minor under ARS § 13-1001 is not categorically
sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), we
need not engage in that analysis here.
In cases where, as here, the full range of conduct covered
by the statute of conviction includes conduct that does not fall
within the generic meaning of sexual abuse of a minor, we
then employ the modified categorical approach. Shepard v.
United States, 544 U.S. 13, 25 (2005) (plurality opinion);
Estrada-Espinoza v. Gonzales, 498 F.3d 933, 935 (9th Cir.
2007) (per curiam). Under this approach, a court may gener-
ally consider only “the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea
was confirmed by the defendant, or to some comparable judi-
cial record of this information.” Shepard, 544 U.S. at 26
REBILAS v. MUKASEY 5699
(majority opinion). Here, the only relevant documents of con-
viction in the record are the indictment, the plea agreement
and the judgment of conviction.
[3] The indictment charges Rebilas with committing two
counts of public indecency to a minor. Both counts state that
“Rebilas, on or about the 21st day of June, 2003, in the pres-
ence of [a minor], intentionally or knowingly engaged in an
act of sexual contact and was reckless about whether a minor
under the age of fifteen years was present.” As stated above,
a defendant who violates ARS § 13-1403(B) by “sexual con-
tact” may do so with conduct that does not meet the generic
definition of sexual abuse of a minor. Therefore, the informa-
tion contained in the indictment does not change the analysis.
[4] Neither the judgment of conviction nor the plea agree-
ment contains the factual basis for the crime. The plea collo-
quy was not admitted into this record. The pre-sentence
report, which does appear in the record, contains factual alle-
gations of the crime, but the pre-sentence report is not one of
the documents we can consider when conducting a modified
categorical approach. United States v. Corona-Sanchez, 291
F.3d 1201, 1212 (9th Cir. 2002) (en banc) (holding that the
pre-sentence report alone may not be used to determine the
facts supporting a petitioner’s guilty plea under the modified
categorical approach if the sources of the facts therein are not
“identified, acceptable” sources). Therefore, there are no rele-
vant documents of conviction which provide facts establish-
ing Rebilas was convicted of an offense constituting
attempted sexual abuse of a minor under 8 U.S.C.
§ 1101(a)(43)(A) and (U).
[5] We hold Rebilas’ conviction for attempted public sex-
ual indecency to a minor under ARS §§ 13-1001, 13-1403(B)
does not constitute an attempt to commit the sexual abuse of
a minor under 8 U.S.C. § 1101(a)(43)(A) and (U), under
either the categorical or modified categorical approach.
5700 REBILAS v. MUKASEY
Accordingly, we grant the petition for review, and order the
government to release Rebilas.
PETITION GRANTED.