Magdiel Mondragon-Gonzalez v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-1710
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MAGDIEL MONDRAGON-GONZALEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of an
Order of the Board of Immigration Appeals
A060-104-346
Immigration Judge: Walter A. Durling
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 16, 2017
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Before: VANASKIE, SHWARTZ, and FUENTES, Circuit Judges
(Filed: January 29, 2018)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge.
Magdiel Mondragon-Gonzalez petitions for review of a final order of the Board
of Immigration Appeals upholding an Immigration Judge’s decision directing that
Mondragon-Gonzalez be removed from the United States. The BIA determined that
Mondragon-Gonzalez’s conviction of unlawful contact with a minor in violation of 18
Pa. Cons. Stat. § 6318(a)(5) is a “crime of child abuse” constituting grounds for removal
pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). We agree with the BIA’s determination and
will thus deny the petition for review.
I.
Mondragon-Gonzalez was admitted to the United States near El Paso, Texas in
August 2008 on an immigrant visa. In April 2015, he pled guilty to unlawful contact
with a minor. 1 Specifically, Mondragon-Gonzalez pled guilty to violating 18 Pa. Cons.
Stat. § 6318(a)(5), which provides:
A person commits an offense if he is intentionally in contact
with a minor, or a law enforcement officer acting in the
performance of his duties who has assumed the identity of a
minor, for the purpose of engaging in an activity prohibited
under any of the following, and either the person initiating the
contact or the person being contacted is within this
Commonwealth:
(5) Sexual abuse of children as defined in section 6312
(relating to sexual abuse of children).
1
In his guilty plea, Mondragon-Gonzales admitted to sending photos of his penis
to a “XXX year old girl.” (A52). The sentencing court indicated that Mondragon-
Gonzalez contacted the female juvenile for the purpose of engaging in activity
prohibited under 18 Pa. Cons. Stat. § 6312, i.e., sexual abuse of children.
2
The state trial court sentenced Mondragon-Gonzales to a prison term of 8 to 23 months.
On December 14, 2015, the Department of Homeland Security (“DHS”)
commenced proceedings to deport Mondragon-Gonzalez on the basis of his state court
conviction. On March 1, 2016, the Immigration Judge found that Mondragon-
Gonzalez’s conviction fell within 8 U.S.C. § 1227(a)(2)(E)(i), one of the three statutory
grounds for removal advanced by DHS. 2 Section 1227(a)(2)(E)(i), in pertinent part,
provides that “[a]ny alien who at any time after admission is convicted of . . . a crime of
child abuse . . . is deportable.” The Immigration Judge concluded that Mondragon-
Gonzalez’s conviction constituted a “crime of child abuse” as that phrase has been
interpreted by the BIA.
Agreeing with the Immigration Judge, the BIA dismissed Mondragon-Gonzalez’s
appeal. In doing so, the BIA compared the elements of the state criminal conviction and
its interpretation of a “crime of child abuse” articulated in Matter of Velazquez-Herrera,
24 I. & N. Dec. 503 (BIA 2008); Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010); and
Matter of Mendoza Osorio, 26 I. & N. Dec. 703 (BIA 2016). The Board found that the
Immigration Judge was correct in sustaining the grounds for removal under §
1227(a)(2)(E)(i) because Mondragon-Gonzalez’s conviction satisfied the elements of the
2
The Immigration Judge rejected the other two grounds for removal asserted by DHS:
(1) that Mondragon-Gonzalez’s conviction constituted an “aggravated felony” under 8
U.S.C. § 1227(a)(2)(A)(iii) as defined in 8 U.S.C. § 1101(a)(43)(A)(sexual abuse of a
minor), and (2) his conviction qualified as an “aggravated felony” as defined in 8
U.S.C. § 1101(a)(43)(I)(child pornography).
3
crime of child abuse as established in the BIA’s precedential decisions. Mondragon-
Gonzalez timely petitioned for review by our Court.
II.
Mondragon-Gonzalez challenges the BIA decision on two grounds. First, he
argues that the Board’s definition of what constitutes a crime of child abuse is
unreasonable and should not be afforded Chevron deference. Second, he insists that the
Pennsylvania law of which he stands convicted is not a categorical match of the BIA’s
interpretation of what constitutes a “crime of child abuse.”
We accord de novo review to questions of law, including the BIA’s interpretation
of the INA, subject to the deference dictated by Chevron, U.S.A., Inc., v. Natural
Resources Defense Council, Inc. 467 U.S. 837 (1984); Cheruku v. Att’y Gen. of U.S.,
662 F.3d 198, 202 (3d Cir. 2011). Under Chevron, we take a two-step approach, first
deciding whether the statutory provision interpreted by the BIA is ambiguous and then,
if it is, giving deference to the BIA’s reasonable interpretation of the INA. De Leon-
Ochoa v. Att’y Gen. of U.S., 622 F.3d 341, 348 (3d Cir. 2010).
III.
The crime of child abuse is not defined in the INA. Moreover, the meaning of the
phrase, “crime of child abuse,” as used in § 1227(a)(2)(E)(i) is not plain and
unambiguous. See Florez v. Holder, 779 F.3d 207, 211 (2d Cir. 2015). We therefore
must view the term as ambiguous, i.e., requiring interpretation, and proceed to the
second step of the Chevron inquiry: “whether the BIA’s interpretation ‘is based on a
permissible construction of the statute.’” Id.
4
In Velazquez-Herrera, 24 I. & N. Dec. at 508, the BIA considered the legislative
history of § 1227(a)(2)(E)(i), and surveyed both state and federal law defining the term
“child abuse” at the time Congress enacted the current provision. Id. at 508-13. The
Board arrived at the following working definition, interpreting the term broadly to mean:
[A]ny offense involving an intentional, knowing, reckless, or
criminally negligent act or omission that constitutes
maltreatment of a child or that impairs a child’s physical or
mental well-being, including sexual abuse or exploitation. At
a minimum, this definition encompasses convictions for
offenses involving the infliction on a child of physical harm,
even if slight; mental or emotional harm, including acts
injurious to morals; sexual abuse, including direct acts of
sexual contact, but also including acts that induce (or
omissions that permit) a child to engage in . . . sexually explicit
conduct….
Id. 512. Building on this broad definition, the BIA held in a subsequent precedential
opinion that the crime of child abuse is not limited to crime that require actual proof of
injury to a minor—i.e., evidence of a physical act. Matter of Soram, 25 I. & N. Dec.
378, 380-81 (BIA 2010).
Based on the case law and legislative history, we cannot say that the Board’s
interpretation of a crime of child abuse is unreasonable. As the BIA explained in Matter
of Velazquez-Herrera, § 1227(a)(2)(E)(i) “was enacted . . . as part of an aggressive
legislative movement to expand the criminal grounds of deportability in general and to
create a ‘comprehensive statutory scheme to cover crimes against children’ in
particular.” 24 I. & N. Dec. at 508-09 (quoting Matter of Rodriguez-Rodriguez, 22 I. &
N. Dec. 991, 994 (BIA 1999)). Given Congress’ evident intent to make crimes that
harm children deportable offenses, we do not find the BIA’s interpretation in this regard
5
to be “arbitrary, capricious, or manifestly contrary to the statute.” Chen v. Ashcroft, 381
F.3d 221, 224 (3d Cir. 2004). We, therefore, must defer to its definition of “crime of
child abuse.” 3 Accord Florez, 779 F.3d at 212.
Mondragon-Gonzalez’s second argument—that his conviction under § 6318(a)(5)
is not a categorical match to a crime of child abuse as defined by the BIA––is also
unavailing. The BIA correctly determined that the Pennsylvania statute at issue satisfies
the necessary intent to be considered child abuse under § 1227(a)(2)(E)(i). Velasquez-
Herrera, 24 I. &. N. Dec. at 512 (a crime of child abuse includes crimes “involving an
intentional, knowing, reckless, or criminally negligent act or omission”). By its plain
language, 18 Pa. Cons. Stat. § 6318(a)(5) requires intentional contact with a minor for
the purpose of engaging in sexual abuse of children.
Second, the Pennsylvania statute meets the generic definitional requirement in §
1227(a)(2)(E)(i), that the act committed by the offender constitute maltreatment of a
child such that there was a sufficiently high risk of harm to a child’s physical or mental
well-being. See Matter of Mendoza Osorio, 26 I. & N. Dec. at 704-05. Mondragon-
Gonzalez argues that the Pennsylvania statute does not involve a sufficiently high risk of
harm to a child because the statute only criminalizes communication with a child.
3
We recognize that the Court of Appeals for the Tenth Circuit declined to accord
deference to the BIA's construction of a crime of child abuse as articulated in Velazquez-
Herrera and Soram. See Ibarra v. Holder, 736 F.3d 903, 915-18 (10th Cir. 2013).
However, even if Ibarra's criticisms of the BIA's interpretation are persuasive,
Mondragon-Gonzalez's conviction here would still constitute a crime of child abuse
because his conviction does not fall within the “criminally negligent” aspect of a crime
of child abuse, which is what the Ibarra court deemed unreasonable.
6
Mondragon-Gonzalez, however, ignores the fact that a conviction under the
Pennsylvania statute requires that the perpetrator “contacts or communicates with the
minor for the purpose of engaging in the prohibited activity.” Com. v. Morgan, 913
A.2d 906, 910 (2006) (emphasis in original). Thus, a conviction would not occur under
the statute unless it had already been proven that the communication was intended for an
illicit sexual purpose, and this is sufficient to create a high risk of harm to a child.
In his Reply Brief, Mondragon-Gonzalez seizes upon the recent decision in
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), to argue that a child for purposes
of the INA’s use of the term “crime of child abuse” means someone under the age of 16.
Because Pennsylvania defines “minor” for purposes of the crime of unlawful contact
with a minor as a person “under 18 years of age,” see 18 Pa. Cons. Stat. § 6318(c),
Mondragon-Gonzalez contends that the BIA erred in Velazquez-Herrera in holding that
Congress intended that the crime of child abuse cover individuals under the age of 18.
He argues that the Pennsylvania crime of unlawful contact with a minor is broader than
the INA “crime of child abuse,” and thus his conviction cannot serve as predicate for his
deportation.
Mondragon-Gonzalez’s reliance upon Esquivel-Quintana is misplaced. The
Court there was confronted with the question of “whether a conviction under a state
statute criminalizing consensual sexual intercourse between a 21–year–old and a 17–
year–old qualifies as sexual abuse of a minor under the INA.” Esquivel-Quintana, 137
S. Ct. at 1567. Noting that the “age of consent” is the determinative factor in the generic
offense of statutory rape, and the consensus view is that the age of consent is 16, the
7
Court concluded that the state statute at issue did not categorically fall within the generic
offense of statutory rape. Id. at 1568. Accordingly, the state conviction in that case
could not serve as the predicate for removal.
Significantly, the Court did not decide that the generic crime of “sexual abuse of
a minor” could never occur when the victim was at least 16 years old. On the contrary,
the Court indicated that consensual sex that occurred as a result of the perpetrator
abusing a position of trust could qualify as “sexual abuse of a minor” even if the victim
is 17 years-old. Id. at 1572. Thus, Esquivel-Quintana does not support Mondragon-
Gonzalez’s claim that the “crime of child abuse” is limited to children under the age of
16. Indeed, Esquivel-Quintana has no application here at all.
IV.
Based on the foregoing, we will deny the petition for review.
8