Case: 13-60407 Document: 00512654837 Page: 1 Date Filed: 06/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 6, 2014
No. 13-60407
Lyle W. Cayce
Clerk
JOHEL AMILCAR CONTRERAS, also known as Pablo Contreras Villalta,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of
the Board of Immigration Appeals
Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.
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
1 See 8 U.S.C. § 1182(a)(6)(A)(i).
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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 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.
2 Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100,
§ 203(a)(1), 111 Stat. 2160, 2196 (1997).
3 Va. Code Ann. § 18.2-63 (West 1992); id. (West 2014).
4 8 U.S.C. § 1101(a)(43) (“The term ‘aggravated felony’ means . . . murder, rape, or
sexual abuse of a minor . . . .”).
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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. v. NRDC, 8 we review de novo whether an
offense constitutes an aggravated felony. 9
5 Va. Code Ann. § 18.2-63(C)(ii) (West 2014).
6 8 U.S.C. § 1252(b)(1).
7 Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
8 467 U.S. 837 (1984).
9 Larin-Ulloa v. Gonzales, 462 F.3d 456, 461 & n.7 (5th Cir. 2006).
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III.
A.
NACARA allows nationals from El Salvador, and other Central
American nations, to apply for discretionary relief from deportation under the
more relaxed terms that existed before the April 1, 1997 effective date of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 10 A
Salvadoran national may apply for special rule cancellation of removal under
NACARA if, among other things, he has not been convicted of an “aggravated
felony,” as defined by the INA in § 1101(a)(43)(A). 11 The term “aggravated
felony” includes “sexual abuse of a minor.” 12 But the INA does not define
“sexual abuse of a minor.” The question is whether a conviction in Virginia for
carnal knowledge of a child between thirteen and fifteen years of age qualifies
as the generic offense of sexual abuse of a minor, thus making it an aggravated
felony within the INA.
B.
In 1992, § 18.2-63, entitled “Carnal knowledge of child between thirteen
and fifteen years of age,” provided:
If any person carnally knows, without the use of force,
a child thirteen years of age or older but under fifteen
years of age, such person shall be guilty of a Class 4
felony.
Provided, however, if such child be thirteen years of
age or older but under fifteen years of age and consents
to the carnal knowledge and the accused be a minor
and such consenting child is three years or more the
accused’s junior, the accused shall be guilty of a Class
6 felony, but if such consenting child is less than three
10 Rodriguez-Silva v. INS, 242 F.3d 243, 245–46 & n.5 (5th Cir. 2001).
11 8 C.F.R. § 1240.66(a) (aggravated felony bar to special rule cancellation of removal).
12 8 U.S.C. § 1101(a)(43)(A).
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years the accused’s junior, the accused shall be guilty
of fornication.
In calculating whether such child is three years or
more a junior of the accused minor, the actual dates of
birth of the child and the accused, respectively, shall
be used.
For the purposes of this section a child under the age
of thirteen years shall not be considered a consenting
child. 13
At the time, for a Class 4 felony, the statutory minimum penalty for
imprisonment was two years and the maximum was ten years, with the
possibility of a fine of no more than $100,000. 14 For a Class 6 felony, the
statutory minimum penalty for imprisonment was one year and the maximum
was five years, unless the factfinder used its discretion to impose a lesser
sentence of up to one year of confinement in jail or a fine of no more than $2,500
or both. 15 Fornication was classified as a Class 4 misdemeanor, 16 which was
punishable at the time by a fine of not more than $250. 17
The term “carnal knowledge” was not defined in the statute. But,
interpreting the undefined term, the Court of Appeals of Virginia once held
that “the plain meaning of ‘carnal knowledge’ is any sexual bodily connection,
not simply sexual intercourse.” 18 The statute has since been revised to specify
13 Va. Code Ann. § 18.2-63 (West 1992).
14 Id. § 18.2-10(d) (West 1992). This penalty remains the same. Id. (West 2014).
15 Id. § 18.2-10(f) (West 1992). This penalty remains the same. Id. (West 2014).
16 Id. § 18.2-344 (West 1992), held unconstitutional by Martin v. Ziherl, 607 S.E.2d
367 (Va. 2005).
17 Va. Code Ann. § 18.2-11(d) (West 1992). This penalty remains the same. Id. (West
2014). Additionally, § 18.2-63 has now been changed to state that where an accused is a
minor, the child has consented, and the child is less than three years the accused’s junior,
the offense is a Class 4 misdemeanor, not fornication. See id. (West 2014).
18 Shull v. Commonwealth, 431 S.E.2d 924, 925 (Va. Ct. App. 1993) (deciding that oral
sodomy fell within the plain, obvious, and rational meaning of carnal knowledge and referring
to Black’s Law Dictionary in support of its conclusion).
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that “‘carnal knowledge’ includes the acts of sexual intercourse, cunnilingus,
fellatio, anilingus, anal intercourse, and animate and inanimate object sexual
penetration.” 19
C.
To determine whether Contreras’s prior offense constitutes sexual abuse
of a minor, we first apply a categorical approach, looking only to the statutory
elements of the offense and not to facts underlying the particular offense. 20 But
where the statute of conviction identifies several separate offenses, we use the
modified categorical approach, meaning that we may look to certain
adjudicative records, such as charging documents and plea agreements, to
narrow the definition of the offense and determine its elements. 21 Recently, the
Supreme Court held that the modified categorical approach may only be
applied where the statute of conviction contains multiple crimes set forth as
alternative elements. 22 The “modified categorical approach merely assists the
sentencing court in identifying the defendant’s crime of conviction.” 23 It is not
applicable “when the crime of which the defendant was convicted has a single,
indivisible set of elements.” 24 Where a prior conviction is based on an
indivisible statute, meaning “one not containing alternative elements,” and
where the statute “criminalizes a broader swath of conduct than the relevant
generic offense,” a court cannot look beyond the elements set forth in the
statute. 25 We use the modified categorical approach in those instances where
the statute of conviction defines multiple offenses, and one of those offenses
19 Cf. Va. Code Ann. 18.2-63(C)(ii) (West 2014).
20 See Taylor v. United States, 495 U.S. 575, 602 (1990).
21 Shepard v. United States, 544 U.S. 13, 17–26 (2005).
22 Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
23 Id. at 2288.
24 Id. at 2282.
25 Id. at 2281–82.
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would not fit within the generic offense, here the offense of “sexual abuse of a
minor,” which the INA considers an “aggravated felony.” 26
Looking at § 18.2-63, we must employ the modified categorical approach
because this statute is divisible. The statute covers a broad swath of conduct,
only some of which may fall within the generic offense of sexual abuse of a
minor. Under § 18.2-63, one cannot know which version of the offense
Contreras was convicted of by looking at the statute. For each different level of
culpability, the criminal statute contains different elements. For example, for
a conviction of the Class 4 misdemeanor under § 18.2-63, the elements include
not only (1) carnal knowledge, (2) without the use of force, (3) of a child between
thirteen and fifteen years of age, but also include that (4) the accused is a
minor, (5) the child has consented, and (6) the child is less than three years the
accused’s junior. On the other hand, for a conviction of the Class 6 felony under
§ 18.2-63, the elements include the first five elements of the Class 4
misdemeanor, but the sixth element is changed so that the age difference
between the accused and child has to be three years or more. As a result, we
need to look beyond the statute to determine the elements of Contreras’s crime
of conviction.
Contreras’s 1992 indictment, entitled “Indictment for Statutory Rape,”
charged that he had sexual intercourse with a child thirteen years of age or
older but under the age of fifteen, in violation of § 18.2-63. According to the
written guilty plea, Contreras pleaded guilty to statutory rape and
acknowledged that he faced a minimum of two years and a maximum of ten
years in prison, and that he was 19 years old. Therefore, Contreras’s crime of
conviction was for the Class 4 felony under § 18.2-63.
26 See Ramos-Garcia v. Holder, 483 F. App’x 926, 929 (5th Cir. 2012) (per curiam).
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The Class 4 felony only applies in two situations: either the accused is an
adult or the accused is a minor but the child did not consent. In Contreras’s
case, it is clear that the conviction for the Class 4 felony was based on the fact
that he was an adult. To our eyes, then, the elements of his crime of conviction
are (1) carnal knowledge, (2) without the use of force, (3) of a child between
thirteen and fifteen years of age, (4) by an adult. Keeping in mind that even
under the modified categorical approach our focus is always on the elements of
the underlying crime of conviction, 27 we must determine whether the crime
thus defined meets the generic offense of sexual abuse of a minor.
IV.
Since the INA does not define sexual abuse of a minor in § 1101(a)(43)(A),
we must give that term meaning and then decide whether the crime of
conviction falls within that definition. We find that there are two ways to define
sexual abuse of a minor, depending on the deference granted to the BIA, but
that either definitional method leads to the conclusion that the 1992 Virginia
conviction constitutes sexual abuse of a minor.
A.
The first method of defining sexual abuse of a minor in § 1101(a)(43)(A)
is to defer to the BIA’s definition of that phrase. We usually “accord substantial
deference to the BIA’s interpretation of the INA itself and definitions of
phrases within it.” 28 Here, the BIA defined sexual abuse of a minor in
accordance with its earlier published decision in In re Rodriguez-Rodriguez. 29
In Rodriguez-Rodriguez, the BIA consulted numerous federal statutes to
27 Descamps, 133 S. Ct. at 2281 (explaining that the modified categorical approach
allows courts to identify the elements of the crime of conviction and compare them with the
elements of the generic crime).
28 Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005) (quoting Smalley v. Ashcroft,
354 F.3d 332, 335–36 (5th Cir. 2003)) (internal quotation marks omitted).
29 22 I. & N. Dec. 991 (BIA 1999).
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determine the meaning of sexual abuse of a minor and determined that the
definition of sexual abuse set forth at 18 U.S.C. § 3509(a)(8) was a useful
guide. 30 It noted that § 3509(a)(8) defines sexual abuse as encompassing “the
employment, use, persuasion, inducement, enticement, or coercion of a child to
engage in, or assist another person to engage in, sexually explicit conduct or
the rape, molestation, prostitution, or other form of sexual exploitation of
children, or incest with children.” 31 Furthermore, the BIA declined to adopt
§ 3509(a)(8) as the only standard or definition for sexual abuse of a minor,
noting that the common usage of that term includes a broad range of
maltreatment of a sexual nature and that various states categorize and define
sex crimes against children in many different ways. 32 Under this broad
definition, Contreras’s crime of conviction would definitely qualify as sexual
abuse of a minor.
Contreras argues that there should be no deference given to this
definition for various reasons. His most persuasive attack comes under Step 2
of Chevron. Under Chevron, we first ask whether Congress has “directly
spoken to the precise question at issue.” 33 If Congress has not directly spoken,
then we look to “whether the agency’s answer is based on a permissible
construction of the statute.” 34 Here, there is no question that Congress has not
directly spoken on the definition of sexual abuse of a minor. Next, while the
BIA’s construction appears to be permissible, the definitional method used by
the BIA is directly contrary to the definitional method mandated in our circuit.
The BIA defined sexual abuse of a minor by reference to various federal
statutes. However, our en banc court recently eschewed this method of defining
30 Id. at 995–96.
31 Id. at 995 (quoting 18 U.S.C. § 3509(a)(8)).
32 Id. at 996.
33 Chevron, 467 U.S. at 842.
34 Id. at 843.
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generic offenses in favor of a plain-meaning approach. 35 Therefore, Contreras
might well be correct to say that this definition is not a reasonable one. Without
deciding as such, we look past the BIA definition of sexual abuse of a minor
and find that even under this circuit’s definitional method, Contreras’s prior
offense of conviction would still be sexual abuse of a minor.
B.
If we look past the BIA definition of sexual abuse of a minor and attempt
to define the term on our own, we must use that phrase’s “generic,
contemporary meaning and . . . rely on a uniform definition, regardless of the
labels employed by the various States’ criminal codes.” 36 “Sexual abuse of a
minor” under § 1101(a)(43)(A) has three elements: “(1) the conduct must
involve a ‘child’; (2) the conduct must be ‘sexual’ in nature; and (3) the sexual
conduct must be ‘abusive.’” 37
In United States v. Rodriguez, 38 our en banc court dealt with the
challenges of defining sexual abuse of a minor, although in a different
context. 39 Under § 2L1.2 of the U.S. Sentencing Guidelines Manual (U.S.S.G.),
a guideline applicable to offenses of unlawfully entering or remaining in the
United States, a criminal defendant can get an enhancement if the defendant
was previously deported or unlawfully remained in the United States after a
conviction for a felony that was a “crime of violence.” 40 The application notes
define a crime of violence as, among other things, sexual abuse of a minor. 41
35 See United States v. Rodriguez, 711 F.3d 541, 550 (5th Cir. 2013) (en banc).
36 See United States v. Dominguez-Ochoa, 386 F.3d 639, 642–43 (5th Cir. 2004)
(internal quotation marks and citation omitted) (citing Taylor, 495 U.S. at 592, 598).
37 United States v. Esparza-Andrade, 418 F. App’x 356, 358 (5th Cir. 2011) (per
curiam).
38 711 F.3d 541 (5th Cir. 2013) (en banc).
39 Id. at 544.
40 U.S.S.G. § 2L1.2(b)(1)(A)(ii).
41 Id. § 2L1.2 cmt. n.1(B)(iii).
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Just like the INA, however, the U.S.S.G. does not define what sexual abuse of
a minor means. Thus, we adopted a plain-meaning approach to define such
undefined offense categories. 42 First, “we identify the undefined offense
category that triggers the federal sentencing enhancement.” 43 Second, if the
meaning of the offense category is not clear, we “determine whether that
undefined offense category is an offense category defined at common law, or an
offense category that is not defined at common law.” 44 Third, “if the offense
category is a non-common-law offense category, then we derive its ‘generic,
contemporary meaning’ from its common usage as stated in legal and other
well-accepted dictionaries.” 45 Fourth, “we look to the elements of the state
statute of conviction and evaluate whether those elements comport with the
generic meaning of the enumerated offense category.” 46 After concluding that
“sexual abuse of a minor” is not a clearly defined phrase and that it is a non-
common-law offense category, 47 we decided to derive its generic, contemporary
meaning by reference to legal and other well-accepted dictionaries. By
adopting this definitional method, we rejected the method of defining the
generic offense by looking to definitions in various state codes, federal laws,
the Model Penal Code, and law treatises. 48
In Rodriguez, we applied this approach to find the meaning of “minor.”
We held that “a statute that prohibits acts of sexual abuse against minors will
comport with the generic meaning of ‘minor’ as long as the statute sets the age
of consent below the age of majority—which we conclude to be the age of
42 Rodriguez, 711 F.3d at 544.
43 Id.
44 Id.
45 Id.
46 Id.
47 Id. at 549–58.
48 Id. at 551–52.
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eighteen under our method.” 49 Rodriguez did not define the meaning of “sexual
abuse.” 50
Therefore, our present task is to apply this plain-meaning approach to
define “sexual abuse.” There is almost no controversy over deciding what
“sexual” means. Indeed, our previous cases have defined this terms using a
dictionary. For example, in United States v. Zavala-Sustaita, 51 we referred to
The American Heritage Dictionary, and found that “sexual” is defined as “[o]f,
pertaining to, affecting, or characteristic of sex, the sexes, or the sex organs
and their functions.” 52
The definition of “abuse” and “sexual abuse,” however, are a little more
difficult. In The American Heritage Dictionary, abuse is defined as “[t]o use
wrongly or improperly” or “[t]o hurt or injure by maltreatment.” 53 Moreover,
Black’s Law Dictionary defines “sexual abuse” as “[a]n illegal or wrongful sex
act, esp. one performed against a minor by an adult.” 54 But our definitions of
abuse have not stopped at the limits of these dictionary definitions. Rather we
have also held that a sexual act does not require physical contact with a minor
to be abusive, since psychological harm may occur even without such contact
and can be equally abusive. 55 We have gone even further because we have
“established a per se rule that gratifying or arousing one’s sexual desires in the
presence of a child is abusive because it involves taking undue or unfair
advantage of the minor.” 56 These definitions are quite broad, encompassing
49 Id. at 560.
50 Id. at 568–69 (Haynes, J., concurring in the judgment only).
51 214 F.3d 601 (5th Cir. 2000).
52 Id. at 604 (quoting The American Heritage Dictionary 1124 (2d College ed. 1982)).
53 Id. (quoting The American Heritage Dictionary 70 (2d College ed. 1982)).
54 Black’s Law Dictionary 11 (9th ed. 2009).
55 Zavala-Sustaita, 214 F.3d at 604–05.
56 United States v. Acosta, 401 F. App’x 972, 973 (5th Cir. 2010) (per curiam) (internal
quotation marks and alterations omitted); see also United States v. Izaguirre-Flores, 405 F.3d
270, 275–76 (5th Cir. 2005).
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within them more than the dictionary definitions of “abuse” or “sexual abuse.”
But even sticking strictly to the dictionary definitions of “abuse” and “sexual
abuse,” we find that Contreras’s prior conviction falls within sexual abuse of a
minor.
A violation of § 18.2-63 necessarily entails minors because one can only
be convicted if the child is “thirteen years of age or older but under fifteen years
of age.” Similarly, a § 18.2-63 violation is “sexual” because it involves carnal
knowledge which at the time was defined as “any sexual bodily connection, not
simply sexual intercourse.” 57 Finally, a § 18.2-63 violation involves “abuse” or
“sexual abuse.” This is clear because we are using the modified categorical
approach, so that we are not examining a § 18.2-63 violation wholesale, but
rather a § 18.2-63 violation in the way Contreras committed that violation.
Recall that to our eyes, the elements of Contreras’s crime of conviction were (1)
carnal knowledge, (2) without the use of force, (3) of a child between thirteen
and fifteen years of age, (4) by an adult. When comparing these four elements
against the elements of sexual abuse of a minor, we find it evident that
fulfilling these four elements necessarily fulfills the offense of sexual abuse of
a minor. Since “sexual abuse” means “[a]n illegal or wrongful sex act, esp. one
performed against a minor by an adult,” 58 we have no trouble finding that a
violation of the Class 4 felony in § 18.2-63 by an adult necessarily entails sexual
abuse of a minor.
Contreras raises several arguments for why a conviction under the
Virginia carnal knowledge statute does not necessarily equate to the offense of
sexual abuse of a minor. First, he argues that the Virginia statute lacks a mens
rea requirement, that it does not require the accused to know that a child is
57 Shull, 431 S.E.2d at 925.
58 Black’s Law Dictionary 11 (9th ed. 2009).
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involved, and therefore sweeps too broadly. However, in the past we have held
a similar statute to be within the meaning of sexual abuse of a minor even
though it did not require knowledge of the victim’s age. 59 Second, he argues
that the Virginia statute does not take into account the difference between the
ages of the accused and the child. The point of this argument is that the statute
criminalizes certain conduct—for example, carnal knowledge between two
consenting minors, i.e., the Class 4 misdemeanor—that could not qualify as
sexual abuse of a minor. We need not linger on this argument because we here
apply the modified categorical approach. We do not hold that any conviction
under § 18.2-63 constitutes sexual abuse of a minor. Rather our holding is
limited to the crime that occurs when the elements of Contreras’s offense are
met, in other words a conviction under § 18.2-63 for an adult. Third, Contreras
argues that the Virginia statute requires that the accused not have used force.
The crux of this argument is that a conviction under the statute requires that
the accused not have used force, which in turn shows that there was no abuse.
But this argument misapprehends precedent. For example, we have held that
physical contact is not necessary to constitute sexual abuse of a minor and that
the conduct can be abusive due to the psychological harm that can occur even
without physical contact. 60 Finally, Contreras argues that sexual abuse of a
minor ought to be defined by reference to a variety of federal statutes. 61
However, this argument fails because Rodriguez held that under the plain-
meaning approach we should consult legal and other well-accepted
dictionaries, not state codes, federal laws, the Model Penal Code, and law
treatises. All of Contreras’s objections, therefore, fail to persuade.
59See Ramos-Garcia, 483 F. App’x at 929.
60Zavala-Sustaita, 214 F.3d at 605.
61 See 18 U.S.C. § 2241 (Aggravated sexual abuse); id. § 2242 (Sexual abuse); id. § 2243
(Sexual abuse of a minor or ward).
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We conclude that Contreras’s conviction under the Virginia statute
necessarily means that he has also been convicted of sexual abuse of a minor,
an aggravated felony within the INA. As a result, we do not reach Contreras’s
arguments about whether a conviction under the Virginia statute also qualifies
as a crime of violence within the INA. Because Contreras’s prior conviction was
an aggravated felony, he was precluded from applying for special rule
cancellation under § 203 of NACARA and the BIA properly dismissed his
appeal. The petition for review is DENIED.
15