FILED
NOT FOR PUBLICATION FEB 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLORENCIO MADERA-CASTANEDA, No. 11-71842
Petitioner, Agency No. A041-638-989
v.
MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 14, 2014**
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,*** Senior District
Judge.
Petitioner Florencio Madera-Castaneda appeals the order of the Board of
Immigration Appeals ("BIA") finding him removable under section
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Raymond J. Dearie, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
237(a)(2)(A)(iii) of the Immigration and Nationality Act for having committed an
aggravated felony and denying his request for a waiver of inadmissibility under
former section 212(c). We deny the portion of the petition concerning Petitioner’s
conviction for an aggravated felony and dismiss for lack of jurisdiction the portion
concerning the BIA’s section 212(c) determination.
1. The BIA did not err by finding Petitioner removable because his
conviction was for an aggravated felony. The question whether the BIA properly
determined that a conviction under California Penal Code section 288(a)
constitutes "sexual abuse of a minor" within the meaning of 8 U.S.C.
§ 1101(a)(43)(A) is a legal question over which we have jurisdiction. Chuen Piu
Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011), cert. denied, 133 S. Ct. 2885
(2013). We review de novo. Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152
(9th Cir. 2008) (en banc), overruled on other grounds by United States v. Aguila-
Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam).
A conviction under California Penal Code section 288(a) constitutes "sexual
abuse of a minor" under the generic federal definition. United States v. Baron-
Medina, 187 F.3d 1144, 1147 (9th Cir. 1999); see also United States v. Medina-
Villa, 567 F.3d 507, 513, 515–16 (9th Cir. 2009) (holding that Baron-Medina
remains good law in light of the en banc court’s use of an alternate definition of
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"sexual abuse of a minor" in Estrada-Espinoza, 546 F.3d at 1152–55, because
Estrada-Espinoza defined statutory rape offenses, whereas Baron-Medina and its
progeny defined other "sexual abuse of a minor" offenses). The statute at issue
meets one of the two complementary definitions of "sexual abuse of a minor" that
we have used: "(1) [T]he conduct prohibited by the criminal statute is sexual, (2)
the statute protects a minor, and (3) the statute requires abuse. . . . Sexual conduct
involving younger children is per se abusive." Pelayo-Garcia v. Holder, 589 F.3d
1010, 1014 (9th Cir. 2009) (citation omitted). Petitioner argues that this line of
cases was wrongly decided, but in the absence of an intervening Supreme Court or
en banc decision, "[a] three-judge panel cannot reconsider or overrule circuit
precedent." Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011). Consistent
with this court’s precedent, the BIA correctly determined that Petitioner’s
conviction under California Penal Code section 288(a) constituted "sexual abuse of
a minor."
2. Because Petitioner is removable due to his conviction of an aggravated
felony and fails to raise colorable legal or constitutional claims, we lack
jurisdiction to review the remainder of his petition, which challenges the BIA’s
denial of a waiver of inadmissibility under former section 212(c). Vargas-
Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007) (citing 8 U.S.C.
3
§ 1252(a)(2)(C)). In considering Petitioner’s request, the BIA properly considered
all relevant factors and equities. In re Marin, 16 I. & N. Dec. 581, 584 (B.I.A.
1978). The BIA considered the immigration judge’s findings of fact with respect
to Petitioner’s positive equities but concluded that they did not outweigh
Petitioner’s repeated sexual abuse of his minor stepdaughter. Petitioner identifies
no colorable legal error or violation of his constitutional rights, and he cannot
create federal appellate jurisdiction simply by recasting an abuse-of-discretion
challenge as a legal or constitutional claim. Vargas-Hernandez, 497 F.3d at 923.
We therefore dismiss for lack of jurisdiction the portion of Petitioner’s claim
concerning the BIA’s denial of discretionary relief under former section 212(c).
DENIED in part and DISMISSED in part.
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