Farhang v. Ashcroft, (10th Cir. 2004)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FARHAD FARHANG,

Petitioner,

v.

JOHN ASHCROFT,

Respondent.

No.
name="1">04-9544

(No. A-29-674-725)

( Petition for Review)

ORDER AND JUDGMENT
name="txt*">(*)

Before SEYMOUR, Circuit Judge, BRORBY,

Senior Circuit Judge, and

MURPHY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

We have for consideration petitioner Farhad Farhang's motion for a stay of

removal pending review and the government's motion to dismiss the petition for

review for lack of jurisdiction. Based on our review of the parties' materials and

the administrative record, the government's motion to dismiss is granted, and

petitioner's motion for a stay of removal is denied as moot.

Facts and Procedural History

Petitioner is a native and citizen of Iran. He was born in 1967 and was

brought by his mother to the United States in 1985, when he was seventeen years

old. He became a lawful permanent resident in 1996. In June 2003, petitioner

pleaded guilty in the State of Utah to a third-degree felony, "Enticing a minor

over the Internet." Utah Code Ann. § 76-4-401. The record shows that petitioner

was given an indeterminate sentence of zero to five years, which was suspended.

Petitioner was ordered to serve thirty days in county jail, but he was allowed to

perform 100 hours of community service in lieu of eleven of those days, so he

actually served only nineteen days. The record does not show the underlying

facts of petitioner's conviction, although he asserts that "there was in fact no

actual minor victim in the case at bar." Pet'r's Reply Br. at 2. He implies that he

e-mailed an undercover law enforcement officer posing as a child.

The immigration judge (IJ) held that petitioner was removable based on his

state conviction. The IJ also summarily denied petitioner's applications for

asylum and for withholding of removal under the Immigration and Nationality

Act (INA) on the basis that his state conviction was an aggravated felony and he

was therefore statutorily ineligible for that relief. The IJ denied petitioner's

application for withholding of removal under the Convention Against Torture on

the merits. The Board of Immigration Appeals (BIA) affirmed without opinion,

and so this court will review the IJ's reasoning on appeal. Yuk v. Ashcroft,

355 F.3d 1222, 1230 (10th Cir. 2004).

The Parties' Arguments

Petitioner argues that his conviction is not an aggravated felony within the

meaning of the INA and that the IJ therefore should have decided his claims for

asylum and withholding of removal under the INA on the merits. Based on this

merits argument, petitioner contends that he is entitled to a stay of removal

pending review. The government correctly points out, however, that the IJ's

holding that petitioner committed an aggravated felony implicates more than just

the merits, that is, the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C). The government submits that petitioner committed an

aggravated felony­either enticing a minor over the Internet or attempted sexual

abuse of a child­and argues that the petition for review should be dismissed for

lack of jurisdiction and the motion for stay of removal denied as moot. In the

alternative, the government argues that petitioner fails to meet the requirement of

the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to

demonstrate by clear and convincing evidence that he is entitled to a stay.

"Aggravated Felony" under the INA

Although we do not have jurisdiction over an immigration appeal filed by

an aggravated felon, we do have jurisdiction to determine whether petitioner is an

aggravated felon and the jurisdictional bar applies. Khalayleh v. INS, 287 F.3d

978, 979 (10th Cir. 2002) (citing § 1252(a)(2)(C)). To the extent it is relevant to

the motions before us, the INA defines "aggravated felony" to include "murder,

rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). The INA does

not

further define "sexual abuse of a minor," however. See id.

Because the INA does not define the term "sexual abuse of a minor" at all,

the INA does not fully define the term "aggravated felony." To fill this gap, the

BIA has decided to borrow the definition of "sexual abuse" in 18 U.S.C. § 3509(a)(8). See In re Rodriguez-Rodriguez, 22 I. & N.

Dec. 991, at Part III C

(BIA 1999). Section 3509(a)(2) defines "child" as "a person under the age of

18 . . . ." Section 3509(a)(8) defines "sexual abuse" as "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 . . . ." This language clearly encompasses enticing a child over the

Internet, but the Utah statute also includes a prohibition against enticing an adult

the defendant believes to be a minor. See Utah Code Ann. § 76-4-401(1).

For

this reason, petitioner argues that his state conviction does not fit within the

definition in § 3509(a). The IJ held that it was "on all fours." Admin. R. at 43.

Standards of Review

We defer to the agency's interpretation of an ambiguous statute if it is

reasonable and if it is a statute the agency administers. Tapia Garcia v. INS,

237 F.3d 1216, 1220 (10th Cir. 2001) (citing Chevron, U.S.A., Inc. v. Natural

Res. Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). We owe the agency

no deference in interpreting non-immigration statutes, however. See Chevron,

467 U.S. at 842-43 & n.9; Francis v. Reno, 269 F.3d 162, 168 (3d Cir.

2001);

Mugalli v. Ashcroft, 258 F.3d 52, 55-56 (2d Cir. 2001). Thus, we review the

agency's interpretation of § 3509(a) de novo.

Utah Statute

The Utah statute under which petitioner was convicted prohibits

"knowingly us[ing] a computer to solicit, seduce, lure, or entice, or attempt[ing]

to use a computer to solicit, seduce, lure, or entice a minor or a person the

defendant believes to be a minor to engage in any sexual activity which is a

violation of state criminal law." Utah Code Ann. § 76-4-401(1) (emphasis

added). Petitioner argues that under the "categorical approach" to statutory

interpretation, the Utah statute does not constitute an aggravated felony under

the INA.

"Categorical Approach" to Statutory Interpretation

The Supreme Court applied a "categorical approach" to statutory

interpretation in Taylor v. United States, 495 U.S. 575 (1990), when the Court

considered whether a criminal defendant's prior state burglary convictions

constituted "burglary," as defined by 18 U.S.C. § 924(e) (which would have

made the defendant subject to an enhancement on his federal sentence). The

Court held that courts should take a "categorical approach" to that question

instead of looking at the facts underlying the defendant's state convictions. See

id. at 600-02. The generic definition of burglary under the federal statute was the

unlawful entry of a building with intent to commit a crime. See id. at 598.

Under the categorical approach, a court considering whether a prior state

conviction falls within the federal definition may look at: (1) the state statutory

definition, or (2) the charging paper and jury instructions to find the answer. Id.

at 602. So, for example, if a state burglary statute "include[s] entry of an

automobile as well as a building," the government may nevertheless use the state

conviction for the federal sentence enhancement "if the indictment or information

and jury instructions show that the defendant was charged only with a burglary of

a building, and that the jury necessarily had to find an entry of a building to

convict . . . ." Id. This court has employed the categorical

approach described

in Taylor. E.g., United States v. Vigil, 334 F.3d 1215, 1218-19

(10th Cir.),

cert. denied, 124 S. Ct. 592 (2003); United States v.

Reyes-Castro, 13 F.3d 377,

379 (10th Cir. 1993).

In this case, petitioner argues that the Utah statute under which he was

convicted is broader than the federal criminal definition in 18 U.S.C. § 3509(a),

because the federal statute has no "or person the defendant believes to be a

minor" language. Rather, he argues, § 3509(a) applies by its plain language to

children under the age of eighteen. But petitioner stopped short in his argument

and in his showing.

If petitioner was convicted of enticing a child over the Internet, then his

state conviction substantially corresponds to the language of § 3509(a), and he

committed an aggravated felony. But petitioner asserts that there was no actual

child involved in his offense. Because the language of Utah Code Ann.

§ 76-4-401 arguably is divisible into an offense that falls within

§ 3509(a) and

another that does not, we must ask what petitioner was actually convicted of.

See Taylor, 495 U.S. at 602. To answer this question, we may

look at "the

indictment, plea, verdict, and sentence (or any other documents admissible under

the federal regulations to prove a criminal conviction)." Santapaola v. Ashcroft,

249 F. Supp. 2d 181, 189 (D. Conn. 2003); see also United States v.

Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004). And here is where

petitioner's proof fails: there is nothing in the administrative record to show that

there was no minor involved in his offense. Indeed, the government asserted at

the administrative hearing that a thirteen-year-old girl was involved, and

petitioner did not dispute that assertion. Admin. R. at 71-73.

As the party seeking the exercise of jurisdiction, petitioner is responsible

for proving the jurisdictional facts. See McNutt v. Gen. Motors Acceptance

Corp. of Ind., Inc., 298 U.S. 178, 189 (1936). Because he has not done so, the

government's motion to dismiss is granted, and petitioner's motion for stay of

removal is moot.

We find it unnecessary to address the government's argument that

petitioner is guilty of attempted sexual abuse of a child, which, it asserts, is also

an aggravated felony. We also find it unnecessary to consider the government's

argument that the legal standard for a temporary stay of removal is heightened by

8 U.S.C. § 1252(f)(2).

The government's motion to dismiss is GRANTED and the petition

for review is DISMISSED. Petitioner's motion for a stay of removal is denied

as moot.

ENTERED FOR THE COURT

PER CURIAM

FOOTNOTES

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*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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