Magdiel Mondragon-Gonzalez v. Attorney General United States
Opinion
Magdiel Mondragon-Gonzalez petitions for review of a final order of the Board of Immigration Appeals upholding an Immigration Judge's decision directing that Mondragon-Gonzalez be removed from the United States. The BIA determined that Mondragon-Gonzalez's conviction of unlawful contact with a minor in violation of
I.
Mondragon-Gonzalez was admitted to the United States near El Paso, Texas in August 2008 on an immigrant visa. In April 2015, he pled guilty to unlawful contact with a minor.
1
Specifically, Mondragon-Gonzalez pled guilty to violating
A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth: (5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).
The state trial court sentenced Mondragon-Gonzalez to a prison term of 8 to 23 months.
On December 14, 2015, the Department of Homeland Security ("DHS") commenced proceedings to deport Mondragon-Gonzalez on the basis of his state court conviction. On March 1, 2016, the Immigration Judge found that Mondragon-Gonzalez's conviction fell within
Agreeing with the Immigration Judge, the BIA dismissed Mondragon-Gonzalez's appeal. In doing so, the BIA compared the elements of the state criminal conviction and its interpretation of a "crime of child abuse" articulated in
Matter of Velazquez-Herrera
,
II.
Mondragon-Gonzalez challenges the BIA decision on two grounds. First, he argues that the Board's definition of what constitutes a crime of child abuse is unreasonable and should not be afforded Chevron deference. Second, he insists that the Pennsylvania law of which he stands convicted is not a categorical match of the BIA's interpretation of what constitutes a "crime of child abuse."
We accord
de novo
review to questions of law, including the BIA's interpretation of the INA, subject to the deference dictated by
Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc
.
III.
The crime of child abuse is not defined in the INA. Moreover, the meaning of the phrase, "crime of child abuse," as used in § 1227(a)(2)(E)(i) is not plain and unambiguous.
See
Florez v. Holder
,
In
Velazquez-Herrera
,
[A]ny offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a *159 child's physical or mental well-being, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in ... sexually explicit conduct....
Based on the case law and legislative history, we cannot say that the Board's interpretation of a crime of child abuse is unreasonable. As the BIA explained in
Matter of Velazquez-Herrera
, § 1227(a)(2)(E)(i)"was enacted ... as part of an aggressive legislative movement to expand the criminal grounds of deportability in general and to create a 'comprehensive statutory scheme to cover crimes against children' in particular."
Mondragon-Gonzalez's second argument-that his conviction under § 6318(a)(5) is not a categorical match to a crime of child abuse as defined by the BIA-is also unavailing. The BIA correctly determined that the Pennsylvania statute at issue satisfies the necessary intent to be considered child abuse under § 1227(a)(2)(E)(i).
Velasquez-Herrera
,
Second, the Pennsylvania statute meets the generic definitional requirement in § 1227(a)(2)(E)(i), that the act committed by the offender constitute maltreatment of a child such that there was a sufficiently high risk of harm to a child's physical or mental well-being.
See
Matter of Mendoza Osorio
,
In his Reply Brief, Mondragon-Gonzalez seizes upon the recent decision in
Esquivel-Quintana v. Sessions
, --- U.S. ----,
Mondragon-Gonzalez's reliance upon
Esquivel-Quintana
is misplaced. The Court there was confronted with the question of "whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA."
Esquivel-Quintana
,
Significantly, the Court did not decide that the generic crime of "sexual abuse of a minor" could never occur when the victim was at least 16 years old. On the contrary, the Court indicated that consensual sex that occurred as a result of the perpetrator abusing a position of trust could qualify as "sexual abuse of a minor" even if the victim is 17 years-old.
IV.
Based on the foregoing, we will deny the petition for review.
In his guilty plea, Mondragon-Gonzalez admitted to sending photos of his penis to a "XXX year old girl." (A52). The sentencing court indicated that Mondragon-Gonzalez contacted the female juvenile for the purpose of engaging in activity prohibited under
The Immigration Judge rejected the other two grounds for removal asserted by DHS: (1) that Mondragon-Gonzalez's conviction constituted an "aggravated felony" under
We recognize that the Court of Appeals for the Tenth Circuit declined to accord deference to the BIA's construction of a crime of child abuse as articulated in
Velazquez-Herrera
and
Soram
.
See
Ibarra v. Holder
,
Reference
- Full Case Name
- Magdiel MONDRAGON-GONZALEZ, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent
- Cited By
- 25 cases
- Status
- Unpublished