United States Court of Appeals
For the First Circuit
No. 05-2633
MARCO SILVA,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Selya, Lynch and Lipez,
Circuit Judges.
Jeffrey B. Rubin and Law Offices of Jeffrey B. Rubin, P.C. on
brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Greg D. Mack,
Senior Litigation Counsel, and Margot L. Nadel, Attorney, Office of
Immigration Litigation, Civil Division, on brief for respondent.
July 14, 2006
SELYA, Circuit Judge. The petitioner, Marco Silva, is a
Portuguese national and a lawful permanent resident of the United
States. He seeks judicial review of a final order of the Board of
Immigration Appeals (BIA) finding him removable by reason of his
commission of an aggravated felony under the Immigration and
Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii). Concluding,
as we do, that the petitioner's conviction for statutory rape
constituted a conviction for an aggravated felony, we deny and
dismiss his petition for review.
The facts are straightforward. The petitioner, then
seven years of age, was admitted to the United States as a lawful
permanent resident on April 23, 1985. On February 25, 2000, he
pleaded guilty to a charge of statutory rape in the Bristol County
(Massachusetts) Superior Court.1 The offense involved a fourteen-
year-old girl. The presiding judge sentenced the petitioner to
1
The statute of conviction, entitled "Rape and Abuse of a
Child," provides in pertinent part:
Whoever unlawfully has sexual intercourse or unnatural
sexual intercourse, and abuses a child under sixteen
years of age shall, for the first offense, be punished by
imprisonment in the state prison for life or for any term
of years, or, except as otherwise provided, for any term
in a jail or house of correction . . . provided, however,
that a prosecution commenced under the provisions of this
section shall not be placed on file or continued without
a finding.
Mass. Gen. Laws ch. 265, § 23.
-2-
lifetime probation and ordered him to stay away from children under
the age of sixteen.
In short order, the Immigration and Naturalization
Service (INS), citing the petitioner's conviction for an aggravated
felony, initiated removal proceedings against him.2 See 8 U.S.C.
§ 1227(a)(2)(A)(iii). The petitioner did not dispute the fact of
the underlying conviction but nonetheless denied that he was
removable as an aggravated felon and cross-applied for termination
of the removal proceedings. After conducting an evidentiary
hearing, an Immigration Judge (IJ) found that the petitioner's
state-court conviction was "first of all, for the crime of rape"
and, therefore, constituted a conviction for an aggravated felony
within the purview of the INA. Taking a belt-and-suspenders
approach, the IJ ruled that the conviction was also one "for the
crime of abuse of a child" and qualified under the aggravated
felony rubric on that basis as well. Accordingly, the IJ denied
the request for termination of the removal proceedings and ordered
the petitioner removed to Portugal.
The petitioner appealed. On September 30, 2005, the BIA
summarily affirmed the IJ's decision. This timely petition
followed. Where, as here, the BIA summarily affirms an IJ's
2
The Homeland Security Act of 2002, Pub. L. No. 107-296, §
471, 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291),
abolished the INS and transferred its duties to the Department of
Homeland Security. See Lattab v. Ashcroft, 384 F.3d 8, 13 n.2 (1st
Cir. 2004). For simplicity's sake, we refer throughout to the INS.
-3-
decision, we review the latter decision as if it were the progeny
of the BIA. See Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir.
2005).
Under the INA, as amended by the REAL ID Act of 2005,3
"no court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having
committed a criminal offense [including an aggravated felony]." 8
U.S.C. § 1252(a)(2)(C). As an exception to this express
jurisdictional bar, the statute permits judicial review of a
removal order to the extent that an alien raises legal or
constitutional questions. See id. § 1252(a)(2)(D); see also
Mehilli v. Gonzales, 433 F.3d 86, 92 (1st Cir. 2005).
Here, the petitioner argues that the IJ erred in
characterizing his state-court conviction as one for an aggravated
felony. Because this argument poses an abstract legal question, we
have jurisdiction to entertain it. See Aguiar v. Gonzales, 438
F.3d 86, 88 (1st Cir. 2006). Our review is de novo. See id.;
Urena-Ramirez v. Ashcroft, 341 F.3d 51, 53-54 (1st Cir. 2003).
The INA provides that "[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable." 8
U.S.C. § 1227(a)(2)(A)(iii). The Act enumerates a roster of
3
The relevant section of the REAL ID Act took effect
immediately upon enactment on May 11, 2005. It applies to final
orders of removal issued "before, on, or after" that date. REAL ID
Act of 2005, Pub. L. No. 109-13, Div. B, § 106(b), 119 Stat. 231,
310-11 (codified at 8 U.S.C. § 1252).
-4-
offenses that fit within the compass of the term "aggravated
felony." See id. § 1101(a)(43). Included at the head of this
compendium are "murder, rape, [and] sexual abuse of a minor." Id.
§ 1101(a)(43)(A).
Before us, the petitioner vigorously attacks the IJ's
"aggravated felony" holding. He asseverates that statutory rape
does not constitute "sexual abuse of a minor" within the meaning of
8 U.S.C. § 1101(a)(43)(A). Building on that foundation, he then
asseverates that his conviction is not for an aggravated felony.4
These asseverations overlook that the IJ's decision rests on an
independently adequate and unchallenged ground: a determination
that the petitioner had been convicted of "rape" — a specifically
enumerated offense under 8 U.S.C. § 1101(a)(43)(A). The petitioner
has not in any way, shape, or form challenged that determination,
nor has he challenged the IJ's corollary determination that he was
removable, as an aggravated felon, on that basis.
We have held, with a regularity bordering on the
monotonous, that litigants have "an obligation to spell out [their]
4
The petitioner also asserts that his conduct did not
otherwise amount to the commission of a "crime of violence" within
the purview of 8 U.S.C. § 1101(a)(43)(F). This is a peculiar
argument. While 8 U.S.C. § 1101(a)(43)(F) treats crimes of
violence as aggravated felonies, the INS never charged the
petitioner with removeability under that provision, nor did the IJ
find the petitioner removable pursuant to it. Thus, the
petitioner, in mounting a "crime of violence" argument, is setting
up and then attempting to topple a straw man. Consequently, we pay
no heed to that aspect of his asseverational array.
-5-
arguments squarely and distinctly, or else forever hold [their]
peace." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(citations and internal quotation marks omitted); see Redondo-
Borges v. U.S. Dep't of Hous. and Urban Dev., 421 F.3d 1, 6 (1st
Cir. 2005) (explaining that a "reviewing court cannot be expected
to do counsel's work, create the ossature for the argument, and put
flesh on its bones") (citation and internal quotation marks
omitted); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 87 (1st Cir.
1990) (concluding that arguments not made in a party's opening
brief are deemed waived on appeal). By not setting out any
developed argumentation to contradict the IJ's classification of
his conviction as a conviction for rape, the petitioner has waived
any challenge to that determination.
To cinch matters, the petitioner never challenged the
classification of his state crime as a rape (and, thus, as an
aggravated felony) before the BIA. That omission constitutes a
breach of the INA's exhaustion requirement. See 8 U.S.C. §
1252(d)(1) (limiting review of a final order of removal to
circumstances in which "the alien has exhausted all administrative
remedies available to [him] as of right"). When an argument could
have been, but was not, advanced before the BIA, we consistently
have rejected belated efforts to resurrect the foregone argument on
judicial review, deeming such efforts barred by non-exhaustion
principles. See, e.g., Roberts v. Gonzales, 422 F.3d 33, 37 n.2
-6-
(1st Cir. 2005); Opere v. INS, 267 F.3d 10, 14 (1st Cir. 2001);
Prado v. Reno, 198 F.3d 286, 292 (1st Cir. 1999). Those holdings
apply here: because the petitioner, before the BIA, never contested
the IJ's determination that his conviction constituted a conviction
for rape, non-exhaustion principles bar further review.
We add a coda. Even if this argument had been preserved
— which it was not — it would have been unavailing. By its plain
terms, the INA provides that "rape" is an aggravated felony. See
8 U.S.C. § 1101(a)(43)(A). "[C]ourts must presume that a
legislature says in a statute what it means and means in a statute
what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249,
253-54 (1992). When, as in this instance, the statutory language
is unambiguous and the result required by the text is not
chimerical, the proper province of the court is to enforce the
statute according to its tenor. Hartford Underwriters Ins. Co. v.
Union Planters Bank, N.A., 530 U.S. 1, 6 (2000); Lopez-Soto v.
Hawayek, 175 F.3d 170, 172 (1st Cir. 1999).
That ends the matter. Here, the statute of conviction,
Mass. Gen. Laws ch. 265, § 23, specifically terms the crime of
conviction "[r]ape." Under the explicit language of the INA, all
rape — including statutory rape — comes within the aggravated
felony taxonomy. See 8 U.S.C. § 1101(a)(43)(A); see also Mattis v.
Reno, 212 F.3d 31, 34-35 (1st Cir. 2000) (superseded on other
grounds) (holding that "statutory rape . . . is an aggravated
-7-
felony under INA § 101(a)(43)(A)"). It follows inexorably that the
petitioner's state-court conviction was properly classified as a
conviction for an aggravated felony.
To be sure, the petitioner contends that his offense
cannot be regarded as an aggravated felony because of the
circumstances of the particular crime. In this regard, he
emphasizes that his relationship with the victim was consensual.
This sortie is easily repulsed: consent is not a defense to a
charge of statutory rape. See Commonwealth v. Elder, 452 N.E.2d
1104, 1111 n.14 (Mass. 1983). Rather, the law conclusively
presumes that a minor cannot give meaningful consent. See Aguiar,
438 F.3d at 90. The fact of consent is, thus, irrelevant in this
case.
We can go no further. The petitioner's challenge to the
factual circumstances underlying the IJ's order of removal is
beyond our jurisdiction. See 8 U.S.C. § 1252(a)(2)(C); see also
Aguiar, 438 F.3d at 88. Since we have reached the conclusion that
the petitioner was convicted of rape — an aggravated felony — we
have no jurisdiction to consider on direct review any fact-based
claim embedded in his petition.
The petition for review is denied and dismissed.
-8-