Mario Escobar-Gonzalez v. Eric Holder, Jr.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 11 2014

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MARIO ESCOBAR-GONZALEZ, No. 13-71314

Petitioner, Agency No. A205-117-415

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted August 7, 2014**
Pasadena, California

Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.

Mario Escobar-Gonzalez (“Escobar”), a native and citizen of El Salvador,

petitions for review of an Immigration Judge’s order denying Escobar’s motion to

place Escobar in non-expedited removal proceedings and affirming an asylum

officer’s negative reasonable fear determination. Because Escobar is removable

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for having been convicted of an aggravated felony, we lack jurisdiction over his

petition for review. See 8 U.S.C. § 1252(a)(2)(C).

Escobar’s conviction under California Penal Code § 289(i) is an aggravated

felony because it matches the federal definition of “sexual abuse of a minor.” See

8 U.S.C. § 1101(a)(43)(A). A conviction under § 289(i) necessarily involves

knowingly engaging in a sexual act, a victim within the federally-defined age

range,1 and an age difference of at least four years. See 18 U.S.C. § 2243(a). It is

irrelevant whether Escobar had knowledge of the victim’s age. See Pelayo-Garcia

v. Holder, 589 F.3d 1010, 1013 (9th Cir. 2009) (citing 18 U.S.C. § 2243(d)).

Although we have jurisdiction to review constitutional claims and questions

of law, none of Escobar’s remaining claims are colorable. See 8 U.S.C.

§ 1252(a)(2)(D). The Government may place aliens who entered without

inspection in expedited removal proceedings on the ground that they have been

convicted of an aggravated felony. See United States v. Hernandez-Vermudez, 356

F.3d 1011, 1012 (9th Cir. 2004). Even if we assume that Escobar exhausted his

challenge to the agency’s clerical error, he has not demonstrated prejudice. See

1
If the victim of Escobar’s offense was between 12 and 15, his conviction
would correspond to 18 U.S.C. § 2243(a)(1). If the victim was under 12, his
conviction would be an aggravated felony under 18 U.S.C. § 2241(c), which makes
it a felony to “engage in a sexual act with a person who has not attained the age of
12 years. . . .”

2
Chowdhury v. INS, 249 F.3d 970, 973 n.2 (9th Cir. 2001). Escobar has no

cognizable liberty interest in applying for a visa. Finally, a petition for review is

not the proper avenue to challenge the denial of a bond hearing. See Aguilar-

Ramos v. Holder, 594 F.3d 701, 704 n.3 (9th Cir. 2010).

DISMISSED.