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Contreras v. Holder

United States Court of Appeals, Fifth Circuit

June 6, 2014

JOHEL AMILCAR CONTRERAS, also known as Pablo Contreras Villalta, Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Page 287

Petition for Review of an Order of the Board of Immigration Appeals.

For Johel Amilcar Contreras, also known as: Pablo Contreras Villalta, Petitioner: Azzam Hussami, Esq., Ceja Law Office, P.L.L.C., Grand Prairie, TX.

For Eric H. Holder, Jr., U.S. Attorney General, Respondent: Edward Earl Wiggers, Esq., U.S. Department of Justice, Office of Immigration Litigation, Washington, DC; Tangerlia Cox, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC; Jeffrey Ronald Meyer, Esq., U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

OPINION

Page 288

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Johel Amilcar Contreras was denied special rule cancellation of removal under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) because the Board of Immigration Appeals (BIA) considered his 1992 Virginia conviction for " carnal knowledge of a child between thirteen and fifteen years of age" an " aggravated felony" as defined by the Immigration and Nationality Act (INA). We agree with the BIA, and DENY Contreras's petition.

I.

Johel Amilcar Contreras, a native and citizen of El Salvador, entered the United States in October 1998 without being admitted or paroled. He concedes that he is subject to removal for that reason.[1] Contreras applied for suspension of deportation or special rule cancellation of removal under § 203 of NACARA.[2] The U.S. Citizenship and Immigration Services (USCIS) determined that Contreras was not eligible for such relief because he had not established that he had been a person of good moral character and because it appeared that he was inadmissible due to criminal activity. The USCIS referred Contreras's application to an Immigration Judge (IJ).

The Government argued to the IJ that Contreras was ineligible for NACARA relief because he was convicted in 1992 for the Virginia offense of carnal knowledge of a child between thirteen and fifteen years of age, as defined by Virginia Code § 18.2-63.[3] According to the Government, this offense was an " aggravated felony" as defined by the INA in 8 U.S.C. § 1101(a)(43)(A) because it constituted " sexual abuse of a minor." [4] Contreras argued that he was eligible for relief because his Virginia offense of conviction did not meet the definition of an aggravated felony. The IJ found that the Virginia offense was an aggravated felony because it constituted sexual abuse of a minor. The IJ concluded that Contreras was " per

Page 289

se ineligible for NACARA relief" and ordered him removed to El Salvador.

Contreras appealed to the BIA, asserting that the IJ's conclusion that he was ineligible for NACARA relief was " contrary to precedent holding that the offense of which he was convicted is not an 'aggravated felony.'" He argued that his offense did not qualify as sexual abuse of a minor because it did not require knowledge or abuse and because it required only a three-year age difference between the victim and the accused. He also argued that it was not an aggravated felony because it was not a crime of violence.

The BIA agreed that Contreras was ineligible for NACARA relief because he failed to meet his burden of demonstrating that he had not committed an aggravated felony and dismissed the appeal. The BIA noted that use of force was not an element of Contreras's offense of conviction but concluded that all of the conduct that constitutes carnal knowledge of a minor under the current Virginia statute--including sexual intercourse, oral and anal sex, and sexual penetration with objects--qualifies as sexual exploitation of a child of 13- or 14-years-old and, thus, as sexual abuse of a minor.[5] The BIA noted that, while knowledge of the minor's age is a factor in determining whether an offense constitutes sexual abuse of a minor, it is not a dispositive factor. It explained, " Our conclusion that this offense falls within the meaning of sexual abuse of a minor is consistent with the intent of Congress to remove aliens who are sexually abusive toward children and to bar them from any relief." The BIA did not address Contreras's argument that his conviction was not an aggravated felony because it was not a crime of violence.

Contreras filed a timely petition for review.[6]

II.

We have jurisdiction over this petition for review under 8 U.S.C. § 1252(a)(1). We have authority to review only the order of the BIA, and not the order of the IJ, unless the IJ's decision had some impact on the BIA's decision.[7] While we owe deference to the BIA's interpretation of the INA, pursuant to Chevron USA, Inc. ...


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