Rivera-Rondon v. Holder

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-1683

JUAN MANUEL RIVERA-RONDON,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Respondent.

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

Argued: May 12, 2009 Decided: August 3, 2009

Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and Malcolm J.
HOWARD, Senior United States District Judge for the Eastern
District of North Carolina, sitting by designation.

Petition dismissed in part and denied in part by unpublished per
curiam opinion.

ARGUED: Jason Lee Pope, LAW OFFICE OF MARY ANN BERLIN,
Baltimore, Maryland, for Petitioner. Keith Ian McManus, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. ON BRIEF: Mary Ann Berlin,
Baltimore, Maryland, for Petitioner. Gregory G. Katsas,
Assistant Attorney General, Civil Division, Michelle Gorden
Latour, Assistant Director, UNITED STATES DEPARTMENT OF JUSTICE,
Office of Immigration Litigation, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Juan Manuel Rivera-Rondon (“Rivera”) petitions for review

of an order of the Board of Immigration Appeals upholding an

immigration judge’s decision finding Rivera to be removable and

ineligible for withholding of removal, and reversing the

immigration judge’s determination that Rivera is entitled to

deferral of removal under the Convention Against Torture

(“CAT”), see United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, adopted

Dec. 10, 1984, art. 3, 23 I.L.M. 1027, 1465 U.N.T.S. 85. We

dismiss for lack of jurisdiction the portion of Rivera’s

petition requesting relief under the CAT, and we deny the

petition as to Rivera’s removability.

I.

Rivera is a Peruvian citizen who entered the United States

illegally in 1991. His status was adjusted to that of lawful

permanent resident in August 2000. In October 2004, he was

convicted in a Maryland state court after pleading guilty to

willfully contributing to an act, omission, or condition that

renders a child in need of assistance. See Md. Code Ann., Cts.

& Jud. Proc. § 3-828. Consequently, in April 2007, the

Department of Homeland Security (“DHS”) commenced removal

proceedings against him, charging him with being removable on

four grounds: having been convicted of an aggravated felony

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constituting sexual abuse of a minor, see 8 U.S.C.A.

§§ 1101(a)(43)(A), 1227(a)(2)(A)(iii) (West 2005); having

willfully misrepresented one or more material facts on his

application for adjustment of status, see 8 U.S.C.A.

§§ 1227(a)(1)(A), 1182(a)(6)(C)(i) (West 2005); having been

convicted of a crime involving moral turpitude, see 8 U.S.C.A. §

1227(a)(2)(A)(i) (West 2005); and having been convicted of a

crime of child abuse, child neglect, or child abandonment, see 8

U.S.C.A. § 1227(a)(2)(E)(i) (West 2005).

Appearing with counsel before an immigration judge in April

2007, Rivera admitted his alienage but denied each of the four

charges of removability and moved to terminate removal

proceedings. The immigration judge denied his motion, finding

that DHS had proven by clear and convincing evidence that Rivera

was in fact removable on each of the four charges.

Having been determined to be removable, Rivera sought

withholding of removal under the Immigration and Nationality Act

(“INA”), see 8 U.S.C.A. § 1231(b)(3) (West 2005), and relief

from removal under the CAT. Regarding the request for CAT

relief, he claimed he feared he would be detained, tortured, or

assassinated if he returned to Peru because the Peruvian army

would view him as a traitor for having implicated other military

officials with his testimony concerning a 1985 incident that

occurred when he was serving in the military. On December 12,

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2007, the immigration judge issued an opinion ordering Rivera

removed to Peru pursuant to the four charges, denying his

applications for withholding of removal under the INA and the

CAT, and granting his request for deferral of removal under the

CAT.

Both parties appealed, with Rivera challenging only the

four charges of removability. The Board dismissed Rivera’s

appeal and sustained the government’s in part. The Board agreed

with the immigration judge that Rivera had been convicted of an

offense that constituted sexual abuse of a minor 1 but disagreed

with the judge’s finding that Rivera was eligible for deferral

of removal under the CAT. The Board therefore ordered Rivera

removed to Peru.

II.

Rivera first argues that the Board erred in determining

that his Maryland conviction was for an aggravated felony. We

conclude that the Board correctly decided the issue. 2

1
Because it reached this conclusion, the Board did not
address the immigration judge’s determination that Rivera was
also removable under the other three charges.

2
The parties appear to disagree regarding the standard of
review that we should apply to the Board’s decision. Because we
would deny the petition of review even were we to apply a de
novo standard, we need not decide what standard of review
applies.

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 The government has the burden to establish by “clear and

convincing evidence” that the facts alleged as the basis for

removability are true. 8 U.S.C.A. § 1229a(c)(3) (West 2005).

Any alien is removable from the United States if, at any time

after admission, he has been convicted of a crime that the INA

defines as an “aggravated felony,” 8 U.S.C.A.

§ 1227(a)(2)(A)(iii), which includes, as is relevant here, the

“sexual abuse of a minor,” 8 U.S.C.A. § 1101(a)(43)(A).

In determining whether Rivera’s Maryland conviction was for

sexual abuse of a minor within the meaning of § 1101(a)(43)(A),

we utilize the categorical approach set out in Taylor v. United

States, 495 U.S. 575 (1990). See Soliman v. Gonzales, 419 F.3d

276, 284 (4th Cir. 2005). Under that approach, we consider

whether the statutory elements of the Maryland offense

necessarily include the elements of a sexual-abuse-of-a-minor

offense. See id. at 284. “If the statute of conviction may,

but does not necessarily, include” those elements, we must

consider “the indictment (or information) and similar documents

for the state law offense, and assess whether the state court,

in adjudging guilt, was required to find the elements of [sexual

abuse of a minor] required by federal law.” Id.; see Shepard v.

United States, 544 U.S. 13, 26 (2005) (holding that inquiry

under the categorical approach “is limited to the terms of the

charging document, the terms of a plea agreement or transcript

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of colloquy between judge and defendant in which the factual

basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information” (emphasis

added)).

Rivera was convicted of violating § 3-828(a) of the

Maryland Courts and Judicial Proceedings Code, which provides

that “[a]n adult may not willfully contribute to, encourage,

cause or tend to cause any act, omission, or condition that

renders a child in need of assistance.” A “[c]hild in need of

assistance” is

a child who requires court intervention because:

(1) The child has been abused, has been
neglected, has a developmental disability, or has a
mental disorder; and

(2) The child’s parents, guardian, or custodian
are unable or unwilling to give proper care and
attention to the child and the child’s needs.

Md. Code Ann., Cts. & Jud. Proc. § 3-801(f) (emphasis added).

As used in § 3-801, “abuse” means “(1) [s]exual abuse of a

child, whether a physical injury is sustained or not; or (2)

[p]hysical or mental injury of a child under circumstances that

indicate that the child’s health or welfare is harmed or is at

substantial risk of being harmed by [a parent or household

member].” Md. Code Ann., Cts. & Jud. Proc. § 3-801(b) (2009)

(emphasis added). “Sexual abuse,” in this context, “means an

act that involves sexual molestation or sexual exploitation of a

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child by . . . [a] parent or other individual who has permanent

or temporary care or custody or responsibility for supervision

of the child . . . or . . . [a] household family member.” Md.

Code Ann., Cts. & Jud. Proc. § 3-801(x)(1).

Rivera does not dispute that if he was in fact convicted

under the sexual abuse section of the Maryland statute, he is

removable for having been convicted of an aggravated felony.

However, Rivera argues that the government did not prove by

clear and convincing evidence that he was convicted under that

portion of the statute. In support of his position, Rivera

identifies facts that he contends could have been a basis for a

conclusion by the state court that Rivera pled guilty under the

neglect, mental-disorder, or mental-injury portions of the

statute. He argues that some of these facts must have formed

the basis for his plea because the version of the sexual

incident with his daughter to which he admitted foreclosed the

possibility that he engaged in any intentional sexual activity

with her. See Md. Code. Ann, Cts. & Jud. Proc. § 3-828(a)

(providing that “[a]n adult may not willfully contribute to,

encourage, cause or tend to cause any act, omission, or

condition that renders a child in need of assistance” (emphasis

added)). Finally, he points to a statement his counsel made

during the plea hearing that “nothing about this plea is

intended to imply, for immigration purposes, that he’s committed

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a sexual offense against a minor.” J.A. 395; see also J.A. 390

(statement of defense counsel that “some of the terms of this

plea have been worked out . . . because of his potential

immigration consequences”). We are unpersuaded.

When asked during the state-court plea hearing for a

proffer of the facts supporting the guilty plea, the prosecutor

explained that, had the case gone to trial, she would have

offered evidence that Rivera’s daughter reported in September

2003 that Rivera engaged in anal intercourse with her in 1997

when she was eight years old, as well as evidence that Rivera

had later apologized to the child’s mother for abusing the

child, stating that he had been rubbing the child’s back “and

ended up on top of her.” J.A. 399. The prosecutor noted that

Rivera had previously told a court evaluator in the Family

Division of the Montgomery County Circuit Court that what really

happened was that his daughter came into bed one night with him

and his wife, he “grabbed” her, and got an erection. J.A. 399.

The prosecutor reported that Rivera had claimed “that he

realized it was his daughter and pulled away.” J.A. 399.

Defense counsel then stated, “No additions for purposes of the

plea. And just to make it clear for the record, the statement

made to [the court evaluator] is the defendant’s version of the

events.” J.A. 400.

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 The parties’ descriptions in the state court of the factual

basis for the plea unmistakably demonstrate that Rivera pleaded

guilty under the “sexual abuse” section of the statute. In

setting out the plea’s factual basis, the prosecutor discussed

only the sexual incident with Rivera’s daughter and did not

assert that any physical or mental injury resulted or that she

was neglected or suffered from a developmental disability or

mental disorder. Although Rivera points to some facts mentioned

during other parts of the plea hearing that do not relate to

sexual abuse committed by him and which he claims arguably could

have supported an allegation of a § 3-828(a) violation, the

colloquy clearly shows that these were not part of the plea’s

factual basis.

Nor does Rivera’s “version of events” show that the sexual

incident was not the basis for the guilty plea. At the time

Rivera pleaded guilty, Maryland Rule 4-242(c) provided, as is

relevant here:

Plea of guilty. The court may accept a plea of guilty
only after it determines, upon an examination of the
defendant on the record in open court conducted by the
court, the State’s Attorney, the attorney for the
defendant, or any combination thereof, that (1) the
defendant is pleading voluntarily, with understanding
of the nature of the charge and the consequences of
the plea; and (2) there is a factual basis for the
plea. . . . The court may accept the plea of guilty
even though the defendant does not admit guilt.

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Md. Rule 4-242(c) (2008). Thus, even if Rivera’s version of

events is understood as a refusal to agree that he committed the

act that the prosecutor outlined in the factual basis she

presented for Rivera’s guilty plea, that does not change the

fact that the factual basis was, in fact, the sexual incident

with Rivera’s daughter, and therefore, that Rivera was

necessarily convicted under the sexual abuse portion of the

statute. See Rivera v. State, 2009 WL 1606767, at *9 (Md. June

10, 2009) (holding that facts that “Rivera engaged in anal

intercourse with his daughter and ‘ended upon on top’ of [her]

while rubbing her back” “provided a sufficient factual basis to

support the conclusion that Mr. Rivera violated § 3-828”).

Finally, defense counsel’s self-serving statement regarding

the immigration implications of the guilty plea, like Rivera’s

statement of his version of events, does not raise any doubt

concerning which facts formed the basis for the plea. It was

certainly not the job of the state court to determine the

correctness of this assertion. Cf. id. at *10 (noting that “the

record does not reflect that the State or the trial judge made

Mr. Rivera any assurances about the actions that [Immigration

and Customs Enforcement] would or would not pursue in the

future”).

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 III.

In sum, we conclude that the Board correctly determined

that Rivera was removable for having been convicted of an

aggravated felony. 3

DISMISSED IN PART AND DENIED IN PART

3
Rivera contends that the Board erred in denying his
application for protection under the CAT. We lack jurisdiction
to review this claim. Courts generally do not possess
jurisdiction to review final orders of removal against aliens
charged with removability for having committed aggravated
felonies. See 8 U.S.C.A. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii)
(West 2005); Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir.),
cert. denied, 129 S. Ct. 595 (2008). Although there is an
exception for “‘constitutional claims or questions of law’”
raised in a petition for review, Saintha, 516 F.3d at 248
(quoting 8 U.S.C.A. § 1252(a)(2)(D) (West 2005)), Rivera does
not raise any such claim.

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