Robert L.

Jaeggli, Esquire
Alta Law Group
6100 219th St. SW
Ste. 480
Mountlake Terrace, WA 98043
U.S. Department of Justice
Executive Offce for Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Office of Chief Counsel - SEA
1000 Second Avenue, Suite 2900
Seattle, WA 98104
Name: E -C , J A -940
Date of this notice: 8/21/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Greer, Anne J.
Wendtland, Linda S.
Pauley, Roger
Sincerely,
Donna Ca
Chief Clerk
lucasd
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: J-E-C-, AXXX XXX 940 (BIA Aug. 21, 2014)
U.S. Department of Justice
Executive Ofice fr Imigration Review
Decision of the Board of Imigration Appeals
Falls Church, Virginia 20530
File: 940 - Seattle, WA
I re: J E -C
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Robert L. Jaeggli, Esquire
ON BEHALF OFDHS: Mark Hardy
Assistant Chief Counsel
CHARGE:
AUG 212014
Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated flony under section 101(a)(43)(A) of the Act
Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -
Convicted of aggravated flony under section 101(a)(43)(U) of the Act
Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C. 1227(a)(2)(E)(i)] -
Convicted of crime of domestic violence, stalking, or child abuse, child
neglect, or child abandonment
APPLICATION: Termination; cancellation of removal
The Depatment of Homelad Security ("DHS") has charged the respondent with
removability fom the United States a an alien convicted of an "aggravated flony'' and a "crime
of child abuse." See sections 237(a)(2)(A)(iii) and 237(a)(2)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), (E)(i), respectively. I decisions dated July 20,
2012, and September 18, 2012, a Immigration Judge sustained the aggravated flony charge,
dismissed the crime of child abuse charge, and ordered the respondent removed to Mexico. The
respondent has appealed fom the Immigration Judge's decision sustaining the aggravated flony
charge, while the DHS has cross-appealed fom the dismissal of the crime of child abuse charge.
The respondent's appeal will be sustained, the DHS's appeal will be dismissed, and the removal
proceedings will be terminated.
The respondent is a native and citizen of Mexico and a lawfl permaent resident of the
United States. I June 2008, the respondent was convicted in Washington of attempted child
molestation in the third degree, see Wash. Rev. Code 9A.28.020(1) and 9A.44.089(1). At the
time of the respondent's ofense and conviction Washington law provided that,
A person is guilty of child molestation in the third degree when the person
has, or knowingly causes another person under the age of eighteen to have,
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Cite as: J-E-C-, AXXX XXX 940 (BIA Aug. 21, 2014)
940
sexual contact with another who is at least furteen years old but less than
sixteen years old and not married to the perpetrator and the perpetrator is at
least frty-eight months older tha the victim.
Wash. Rev. Code 9A.44.089(1). To be guilty of an "attempt," a Washington defndat must,
"with intent to comit a specifc crime, . . . do[] any act which is a substantial step toward the
commission of that crime." Wash. Rev. Code 9A.28.020(1).
The respondent's appeal asks us to decide whether this conviction renders him removable as
an alien convicted of an aggravated flony; while the DHS's appeal asks us to decide whether it
renders him removable as an alien convicted of a crime of child abuse. We review both questions
de novo. See 8 C.F.R. 1003. l(d)(3)(ii).
I. THE "AGGRAVATED FELONY" CHAGE
The Immigration Judge fund that attempted child molestation in the third degee under
Wash. Rev. Code 9A.28.020(1) and 9A.44.089(1) is a categorical aggravated flony under
sections 101(a)(43)(A) and 101(a)(43)(U) of the Act, 8 U.S.C. 1101(a)(43)(A), (U), that is, an
"attempt" to commit "sexual abuse of a minor." Although the ofense in question would likely
qualify as an aggravated flony under this Board's own standard fr deciding whether a crime is
a "sexual abuse of a minor" ofense, see Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991
(BIA 1999), it does not so qualify under the controlling precedents of the United States Court of
Appeals fr the Ninth Circuit. The Ninth Circuit does not defr to Rodriguez-Rodriguez,
moreover, see Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1157-58 (9th Cir. 2008) (en bane),
and therefre we will dismiss the aggravated flony charge in accordance with Ninth Circuit law.
A. Estrada-Espinoza v. Mukasey
The Ninth Circuit has adopted two overlapping defnitions of the phrase "sexual abuse of a
minor," as it is used in section 101(a)(43)(A) of the Act. The frst defnition, which applies to
statutes encompassing conduct which the Ninth Circuit deems akin to "statutory rape,"
incorporates the defnition of "sexual abuse of a minor" set frth at 18 U.S.C. 2243(a), which
requires fur elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor
between the ages of 12 and 16; and (4) an age diference of at least fur years between the
defndant and the minor. See Estrada-Espinoza v. Mukasey, supra, at 1152, 1156.
The ofense defned by Wash. Rev. Code 9A.44.089(1) satisfes the frst, third, ad furth
elements of the Estrada-Espinoza test, but it does not satisfy the second-i.e., the requirement of
a "sexual act." As the Ninth Circuit has clarifed, the phrase "sexual act" takes its meaning fom
18 U.S.C. 2246(2), which "requires, at a minimum, an intentional touching, not through the
clothing, of a minor's genitalia." United States v. Castro, 607 F.3d 566, 569-70 (9th Cir. 2010).
The phrase "sexual contact," as defned by Wash. Code 9A.44.010(2), encompasses touchings
through clothing of "intimate pats" other than the genitalia. See, e.g., State v. Harstad, 218 P .3d
624, 628-29 (Wash. Ct. App. 2009); State v. Powell, 816 P.2d 86, 88 & n. 3 (Wash. Ct. App.
1991), rev. denied, 824 P.2d 491 (Wash. 1992). Accordingly, the respondent's ofense of
conviction is not a categorical "sexual abuse 9f a minor" ofense under the Estrada-Espinoza test.
2
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Cite as: J-E-C-, AXXX XXX 940 (BIA Aug. 21, 2014)
940
The ofense defned by Wash. Rev. Code 9A.44.089(1) is also not "divisible" vis-a-vis the
defnition of "sexual abuse of a minor" adopted in Estrada-Espinoza, so as to warrant a
"modifed categorical" inquiry of the sort described in Shepard v. United States, 544 U.S. 13
(2005). During the pendency of this appeal, the Supreme Court held that a modifed categorical
inquiry is permissible only if the statute of conviction lists multiple discrete ofenses as
enumerated alteratives or defnes a single ofense by refrence to disjunctive sets of "elements,"
more than one combination of which could support a conviction, ad some (but not all) of those
listed ofenses or combinations of disjunctive elements are a categorical match to the relevant
generic standard. Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013). Thus, a
modifed categorical inquiry is not permitted merely because the elements of a crime ca
. sometimes be proved by refrence to conduct that fts a generic fderal standard; under
Descamps such crimes are "overbroad," but not "divisible." Id. at 2285-86, 2290-92.
Although some violations of Wash. Rev. Code 9A.44.089(1) likely involve conduct in
which an adult touches a juvenile's genitalia directly (rather than through clothing), thereby
satisfying Estrada-Espinoza's defnition of a "sexual act," that fct alone merely makes the
statute "overbroad" under Descamps. The statute is "divisible" under Descamps only if
Washington law defnes "touchings through clothing" ad "direct touchings" (or "touchings of
genitalia" and "touchings of 'intimate parts' other than genitalia") as alterative ofense
"elements," i.e., fcts about a crime which "[t]he Sixth Amendment contemplates that a jury
not a sentencing court-will fnd . . . , unamously ad beyond a reasonable doubt." Descamps
v. United States, supra, at 2288 (citing Richardson v. United States, 526 U.S. 813, 817 (1999)).
Nothing in Washington law suggests that a jury would be required to reach agreement on the
question whether a sexual touching was direct or through clothing in order to render a guilty
verdict in a prosecution under 9A.44.089(1), and therefre it fllows that touchings through
clothing and direct touchings are not alterative "elements" fr divisibility purposes, but rather
mere alterative "means" by which a defndant can commit third-degree child molestation. See
generally Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality opinion) ("[L]egislatures
fequently enumerate alterative means of committing a crime without intending to defne
separate elements or separate crimes."). As the distinction between touchings through clothing
and direct touchings does not render 9A.44.089(1) divisible within the meaning of Descamps,
the Imigration Judge may not conduct a modifed categorical inquiry fr the purpose of
determining whether the respondent touched his victim directly or through clothing.
B. United States v. Medina-Villa
Although Wash. Rev. Code 9A.44.089(1) is not a sexual abuse of a minor aggravated
flony under the Estrada-Espinoza test, the Ninth Circuit held in United States v. Medina-Villa,
567 F.3d 507, 516 (9th Cir. 2009), that Estrada-Espinoza applies only to predicate ofenses that
are akin to "statutory rape," and that a residual category of "sexual abuse of a minor" exists that
encompasses statutes where (1) "the conduct proscribed ... is sexual;" (2) "the statute protects a
minor;" and (3) "the statute requires abuse." Id. at 513-14.
The ofense defned by 9A.44.089(1) satisfes the frst ad second prongs of the
Medina-Villa test, but it does not satisfy the third-i.e., that the statute require "abuse." I a
series of precedent decisions, the Ninth Circuit has held that a statute proscribing sexual contact
between an adult and a juvenile satisfes the "abuse" criterion of Medina-Villa only if the statute
3
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940
requires that the victim was less than 14 years old when the sexual act occurred. See, e.g.,
United States v. Sullivan, --- F.3d ----, Nos. 12-10196, 12-10217, slip op. at 24-25, 2014 WL
2199316, at *10 (9th Cir. May 28, 2014); United States v. Gomez, --- F.3d ----, No. 11-30262,
slip op. at 37, 2014 W 1623725, at *14 (9th Cir., April 24, 2014); United States v. Farmer,
627 F.3d 416, 419-20 (9th Cir. 2010); United States v. Valencia-Barragan, 608 F.3d 1103, 1107
& n. 2 (9th Cir. 2010); United States v. Castro, supra, at 568-69; Pelayo-Garcia v. Holder,
589 F.3d 1010, 1014 (9th Cir. 2009). The ofense defned by Wash. Rev. Code 9A.44.089(1)
does not satisfy that requirement because it applies only to victims who were 14 or 15 years old
when the prohibited sexual contact occurred. As 9A.44.089(1) never applies to conduct
involving sexual contact between adults and children under 14, it fllows that the statute is not
"divisible" vis-a-vis the Medina-Villa defnition of sexual abuse of a minor.
C. Conclusion
I conclusion, the ofense of third-degree child molestation in violation of Wash. Rev. Code
9A.44.089(1) is not an aggravated flony under section 101(a)(43)(A) in removal proceedings
arising within the jurisdiction of the Ninth Circuit because its elements do not correspond to
either of the Ninth Circuit's controlling defnitions of the phrase "sexual abuse of a minor."
1
Thus, an attempt to commit that ofense is also not an aggravated flony under section
101(a)(43)(U) of the Act. Under the circumstances, we will vacate the Immigration Judge's
decision in part and dismiss the aggravated flony charge.
II. THE CRIE OF CHILD ABUSE CHARGE
Having determined that the respondent's conviction does not render him removable as an
alien convicted of an aggravated flony in the Ninth Circuit, we t to the DHS's cross-appeal,
which argues that the ofense defned by Wash. Rev. Code 9A.28.020(1) and 9A.44.089(1) is
a "crime of child abuse" under section 237(a)(2)(E)(i) of the Act. Like the Immigration Judge,
we conclude that it is not.
At the outset, we acknowledge Jimenez-Juarez v. Holder, 635 F.3d 1169 (9th Cir. 2011),
which held that Wash. Rev. Code 9A.44.089(1) defnes a categorical "crime of child abuse," a
phrase which encompasses any intentional, knowing, reckless, or criminally negligent act or
omission that constitutes maltreatment of a person under 18 yeas old or that impairs such a
person's physical or mental well-being, including sexual abuse or exploitation, whether or not
the act or omission results in the actual infiction of harm or injury to the child victim. See
1 I its appellate brief, the DHS maintains that the ofense defned by Wash. Rev. Code
9A.44.089(1) "mirrors" the fderal ofense of "abusive sexual contact," 18 U.S.C. 2244(a)(3),
which the Ninth Circuit held was a "sexual abuse of a minor" ofense in United States
v. Granbois, 376 F.3d 993, 996 (9th Cir. 2004). Although we acknowledge Granbois (which has
not been expressly overruled by the Ninth Circuit) and the similarity between the ofense at issue
in that case and the one defned by Wash. Rev. Code 9A.44.089(1), we are unable to apply the
Granbois court's 2004 holding-which was announced without signifcant discussion and which
has never been repeated since-because it is fatly inconsistent with those adopted in 2008 by the
en bane Estrada-Espinoza court and by the numerous Ninth Circuit panels which have applied
Medina-Vlla since 2009.
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Cite as: J-E-C-, AXXX XXX 940 (BIA Aug. 21, 2014)
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Matter of Soram, 25 l&N Dec. 378, 380-81 (BIA 2010); Matter of Velazquez-Herrera,
24 l&N Dec. 503, 512 (BIA 2008). Here, however, we are not presented with an alien who was
convicted of a completed child molestation ofense; instead, the respondent was convicted of
attempting to commit such an ofense - that is, of filing to consummate an act of child
molestation despite specifcally intending to commit such an act and despite having engaged in
conduct which constituted a "substatial step" toward its commission. Wash. Rev. Code
9A.28.020(1).
We agee with the Immigration Judge that the respondent's attempt conviction does not
qualify as a categorical "crime of child abuse," despite the fct that the completed offense would
have so qualified, because the fll range of conduct punishable as an attempted child molestation
offense under Washington law would not constitute maltreatment of a child or otherwise expose
a child to an umeasonable risk of ha. As the respondent points out on appeal, a person may be
successflly prosecuted in Washington fr an attempted sex ofense against a minor even if the
"minor" in question was in fct an adult or a fctitious creation of a undercover police offcer.
E. g. , State v. Johnson, 270 P.3d 591 (Wash. 2012) (defndant convicted of attempted promotion
of commercial sexual abuse of a minor where defndant mistakenly believed that the intended
victim was a minor); State v. Townsend, 57 P.3d 255 (Wash. 2002) (defndant convicted of
attempted rape of a child where the "child" was an undercover police ofcer posing as a
fctitious child); State v. Wilson, 242 P.3d 19 (Wash. Ct. App. 2010) (same). Such ofenses do
not qualif as crimes of child abuse.
2
Although some attempted child molestation ofenses under Washington law would not
qualif as crimes of child abuse under section 237(a)(2)(E)(i), it is possible that some such
ofenses would so qualif, such as where a defndant makes a threatening sexual overture to a
child but is prevented by a third person fom making sexual contact. For the reasons already
discussed in the "aggravated flony'' portion of this decision, however, the fct that some
conduct covered by Washington's attempt statute may constitute a crime of child abuse is not
suficient to render the statute "divisible" under Descamps, so as to invite an inquiry into the
record of conviction. Such an inquiry would only be permissible under Descamps if the attempt
statute were divided into disjunctive sets of "elements," some of which defned categorical
crimes of child abuse and some of which did not. Washington's attempt and child molestation
statutes are not structured that way, and therefre we conclude that the "modifed categorical
approach" does not apply here.
I sum, the DHS has not proven by clear and convincing evidence that the ofense underlying
the respondent's conviction under Wash. Rev. Code 9A.28.020(1) and 9A.44.089(1) qualifes
as a crime of child abuse within the meaning of section 237(a)(2)(E)(i) of the Act.
2 Congess has included language in several criminal grounds of deportability to make clear its
intention to include attempt and conspiracy ofenses. E. g., sections 237(a)(2)(B)(i), 237(a)(2)(D),
237(a)(3)(B)(ii), and 237(a)(3)(B)(iii) of the Act. Signifcatly, section 237(a)(2)(E)(i) contains
no such language.
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Cite as: J-E-C-, AXXX XXX 940 (BIA Aug. 21, 2014)
940
III. CONCLUSION
I conclusion, Ninth Circuit law precludes the respondent fom being removable as an alien
convicted of an aggravated flony within that circuit. Furthermore, the respondent's attempt
ofense of conviction does not qualify as a crime of child abuse. Accordingly, the charges of
removability under sections 237(a)(2)(A)(iii) and 237(a)(2)(E)(i) of the Act will be dismissed.
No other charges are pending against the respondent, moreover, and therefre the removal
.
proceedings will be terminated.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The Department of Homeland Security's appeal is dismissed.
FURTHER ORDER: The removal proceedings are terminated.
F
OR THE BOA
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Cite as: J-E-C-, AXXX XXX 940 (BIA Aug. 21, 2014)