Petition for Writ of Certiorari — Canales-Matamorosos v. Holder (No. 08-643)

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\\ y rai eT ceue U-S.

nib W 08-643

NOV 11 7008

In tHe OFFICE OF THE CLERK

Supreme Court of the United States

HENRY A. CANALES-MATAMOROS,

Petitioner,

U.S. ATTORNEY GENERAL,

Respondent.

ON PETITION FOR A WRiT or CERTIORARI TO THE

UniteD States Court OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

| 1AS E. MOSEL}

ie Gateway Center

Suite 2600

Newark. New Jer O710

Q 22-817

{ r Pr r

QUESTIONS PRESENTED

Whether the uniform federal criminal definition for

conviction of sexual abuse of a minor governs the

deportation provision in Section 101(a)(43)(A) of the

Immigration & Nationality Act of 1952 as amended (the

“Act”), 8 U.S.C. § 1101(a)(43)(A) requiring removal of

an alien convicted of sexual abuse of a minor?

Whether the rule of lenity or narrow construction

Should be applied to resolve an ambiguity in a

deportation provision that is also part of a federal

criminal statute?

TABLE OF CONTENTS

Questions Presented

Table of Contents

NY Oe PUOTIGICDS 6 3. neve ese crscencvesctes ili

Table of Cited Authorities

Opinions Below

Jurisdiction

Statutory Provisions Involved

Preliminary Statement

Statement of the Case

Reasons for Granting the Petition

A. A Recognized Circuit Split Exists

The Decision Below Contravenes Piain

Statutory Language

The Decision Below Overlooked Lenity

» ne} Tate

meiusion

lil

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States

Court Of Appeals For The Eleventh Circuit

Fer CULE 2. Ne cb oa a oe ce da 4 Voss la

Appendix B — Decision Of The Board Of

Immigration Appeals Dated September 6,

iene Ow ete nner iter Perea wine Fok 7a

Appendix C — Oral Decision Of The Immigration

Judge Of The United States Department Of

Justice Executive Office For Immigration

Review, United States Immigration Court,

Atlanta, Georgia Dated May 8, 2007 ........ 12a

Appendix D — Order Of The United States

Court Of Appeals For The Eleventh Circuit

Denying Petition or Rehearing Filed August

ER Ts gee eke es oe eee ieee 14a

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Bahar v. Ashcroft,

264 F.3d 1309 (11th Cir. 2001) ........... 9,10, 13

Chevron ' SA v. Natural Res. Def Council,

Oe Ce En oyu aw ee eek eeaweeewo 17, 18

Costello v. INS,

ee ee, ee CRUE 5 ke ae koko bee mea eee ed: 1]

Crandon v. United States,

ee Re ES ok veins ede pease dean 17

Demore v. Kim,

Be RP OP CT ko Sv enna wens sec eeucaves 12

Emile v. INS,

2O8 FG 3s (let (i BOO) .. . sc cc ckccwesss 5-6, 11

Estrada-Espinoza v. Mukasey,

2008 U.S. App. LEXIS 21873

CORR SAR. SE. SB Be) woo oi ie eens passim

Fong Haw Tan v. Phelan,

ee Ses Te CD oo ee v oe ns oes bee 7, 19-20

(;attem v. Gonzale Se

112 F.3d 758 (7th Cir. 2005) oa eee 14

Cited Authorities

Gonzales v. Duenas-Alvarez,

549 U.S. 183, 128 S.Ct. 815 (2007) .......... 17

Gonzales v. Oregon,

I 18

Graham v. Richardson,

Es 12-13

Gustafson v. Alloyd Co., Inc.,

I OUD ccc c eee sc eecees 16

INS v. Cardoza-Fonseca,

I 11, 20

Kyei v. INS,

wae ee Ge ar. BOSS) . 2... 2.1 wee eee 12

Lara-Ruiz v. INS,

241 F.3d 934 (7th Cir. 2001) .......... Bla 5

Leocal v. Ashcroft.

Ee t, lo, 18, 2. Z}

Cited Authorities

Lopez v. Gonzales,

549 U.S. 47 (2006)

Lugar v. Edmonson Oil Co.,

457 U.S. 922 (1982)

Matter of Carachuri-Rosendo,

241& N Dec. 382, 385 (BIA 2007)

Matter of Rodriguez-Rodriguez,

221& N Dec. 991 (BIA 1999)

Matter of West,

221&N Dec. 1405 (BIA 2000)

Mugalli v. Ashcroft,

258 Fd 52 (2d Cir. 2001)

Navarro-Lopez v. Gonzales

f b

903 F.3d 1063 (9th Cir. 2007)

Ng Funy Ho v. White,

259 U.S. 276 (1922)

Rosendo-Ramirez v. INS,

32 F.3d 1085 (7th Cir. 1994

Singh v. Ashcroft,

383 F.3d 144 (3d Cir. 2004)

Cited Authorities

State v. Couser,

163 N.C. 727, 594 S.E.2d 420

(Ct. Appeals 2004)

State v. Every,

157 N.C. App. 200, 578 S.E.2d 642

State v. McClees,

108 N.C. App. 648, 424 S.E.2

(N.C. App. Ct. 1993)

State v. Rhodes,

321 N.C. 102, 361 S.E.2d 578 (1987)

Steele v. Blackman.

236 F.3d 130 (3d Cir. 2001)

Taylor v. United States,

495 U.S. 575 (1990)

United States v. Bauron-Medina,

187 F.3d 1344 (9th Cir. 1999)

United States v. Baza-Martinez,

464 F.3d 1010 (9th Cir. 2006)

l/nited States v. Flores-Figueroa,

274 Fed. Appx. 501, 2008 U.S. App. LEXIS 8759

(8th Cir. 2008), cert. granted, 2008 U.S. LEXIS

Vill

Cited Authorities

7827 (Oct. 20, 2008)

United States v. Izaguire-F lores,

405 F.3d 270 (Sth Cir.), cert. denied,

546 U.S. 905 (2005)

United States v. Williams,

128 S.Ct. 1830 (May 19, 2008)

United States Constitution:

Article I, § 8, Cl. 4

Statutes:

N.C. Gen. Stat. § 14-2-2.1

N.C. Stat. Gen. § 14-202.1

N.C. Stat. Gen. § 15A-1843(b2)(4)

Pub. L. 104-208, 110 Stat. 3009-26, :

Subsection 7(c)

Pub. L. No. 109-13, 119 Stat. 2:

(May 11, 2005)

Texas Penal Code Ann. §2

8 U.S.C. § 1101(a)(43)(A)

Cited Authorities

» § 1L227(a)(2)(AD OW)

. § 1229b(a)(3)

. § 1252(a)(2)(D)

.C. § 1326(b)

.. § 1826(b)(2)

_

> 8509( a)

( ‘ited Authorities

Other Authorities:

8 C.ER. § 1003.1(g)

3 C. Gordon, S. Mailman, S. Yale-Loehr,

Immigration Law and Procedure § 71.01 [6] [b]

James Madison, “Report on the Alien and

Sedition Acts,” Writings at 623 (Library of

America 1999, Jack N. Rakove, ed.)

2A N. Singer Sutherland Statutory Construction

fo ¢ Se ar ar eee

U.S.S.G. § 2L 1.3

U.S.8.G, § 7

l

OPINIONS BELOW

The decision of the Court of Appeals is not officially

reported but may be found at 2008 U.S. App. LEXIS

14721 (11 Cir. July 10, 2008) and appears in Appendix

A to this Petition at App. la—6a. The decisions of the

Board of Immigration Appeals (“BIA” or the “Board”)

and the Immigration Judge are not officially reported

and appear in Appendix A to this Petition at App.

7a-lla and App. 12a-13a, respectively.

JURISDICTION

The judgment of the Court of Appeals was entered

on July 10, 2008, and a timely petition for rehearing with

a suggestion for rehearing en banc was denied on

August 14, 2008. (App. 14a—15a). This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

8 U.S.C. § 1227(a)(2)(A)(iii)

Any alien who is convicted of an

aggravated felony at any time after admission

is deportable.

8 U.S.C. § 1101(a)(43)(A)

The term “aggravated felony” means-

murder, rape, sexual abuse of a minor.

8 U.S.C. § 1326

(a)(1) Subject to subsection (b), an alien who

has been... removed, and thereafter

(O\ bm gece

‘gs CHIVES. «+

(b) ...in the case of any alien. ..

(2) whose removal was subsequent to a

conviction for commission of an aggravated

felony, such alien shall be fined under such

title, imprisoned not more than 20 years or

both.

18 U.S.C. § 22483—Sexual abuse of a minor or ward

(a) Of a Minor—Whoever, in the special

maritime and territorial jurisdiction of the

United States or in a Federal Prison, or in any

institution, or facility in which persons are

held in custody by direction of or pursuant to

a contract or agreement with the head of any

Federal department or agency, knowingly

engages in a sexual act with another person

who—

1) has attained the age of 12 years but has

not attained the age of 16 vears; and

2) is at least four years younger than the

person so engaging;

9

vo

or attempts to do so, shall be fined under this

title, imprisoned not more than 15 years, or

both.

18 U.S.C. § 2246

As used in this chapter—

(2) The term “sexual act” means—

(A) contact between the penis and the vulva

or the penis and the anus, and for the

purposes of this subparagraph contact

involving the penis occurs upon penetration,

however slight;

(B) contact between the mouth and the penis,

the mouth and the vulva, or the mouth and

the anus; or

(C) the penetration, however slight, of the

anal or genital opening of another by a hand

or finger or by any object, with an intent to

abuse, humiliate, harass, degrade, or arouse

or gratify the sexual desire of any person; or

(D) the intentional touching, not through the

clothing, of the genitalia of another person

who has not attained the age of 16 years with

an intent to abuse, humiliate, harass, degrade,

or arouse or gratify the sexual desire of any

person;

4

18 U.S.C. § 3509(a)—Child victims’ and child

witnesses’ rights

(8) the term “sexual abuse” inciudes the

employment, use, persuasion, inducement,

enticement, or coercion of a child to engage

in sexually explicit conduct or the rape,

molestation, prostitution, or other form of

sexual exploitation of children, or incest with

children;

(9) the term “sexually explicit conduct”

means actual or simulated—

(A) sexual intercourse, including sexual

contact in the manner of genital-genital, oral-

genital, anal-genital, or oral-anal contact,

whether between persons of the same or

opposite sex; sexual contact means the

intentional touching, either directly or

through clothing, of the genitalia, anus, groin,

breast, inner thigh, or buttocks of any person,

with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify sexual desire of

any person;

(B) bestiality;

(C) masturbation;

(D) lascivious exhibition of the genitals or

pubic area of a person or animal; or

(FE) sadistic or masochistie abuse;

5

N.C. Gen. Stat. § 14-2-2.1

(a) A person is guilty of taking indecent

liberties with children if, being 16 years of age

or more and at least five years older than the

child in question, he (1) Willfully takes or

attempts to take any immoral, improper or

indecent liberties with any child of either sex

under the age of 16 years for the purpose of

arousing or gratifying sexual desire.

PRELIMINARY STATEMENT

At issue in this case is whether the uniform federal

criminal definition for conviction of sexual abuse of a

minor in 18 U.S.C. § 2243 should control a deportation

provision requiring removal when an alien has been

convicted of sexual abuse of a minor. That Congress

premised the harsh penalty of deportation for conviction

of an aggravated felony upon an actual conviction

provides conclusive support for the view that the

uniform federal criminal definition of sexual abuse of a

minor should control, as, for example, the Ninth Circuit

recently held in a unanimous en bance decision, E'strada-

Espinoza v. Mukasey, 2008 U.S. App. LEXIS 21873 (9"

Cir., Oct. 20, 2008). By contrast, the decision below

sanctions reliance upon the definition of sexual abuse

contained in a social welfare provision, 18 U.S.C. §

3509(a)(8), which simply does not define a criminal

offense for which any one could ever be convicted.

Similarly, both Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir.

2001) and Lara-Ruiz v. INS, 241 F.3d 934 (7 Cir. 2601)

fall in line with the decision below in upholding resort

to 18 U.S.C. § 3509, while Emile v. INS, 244 F.3d 183

6

(1* Cir. 2001) would seem to endorse application of the

federal criminal definition. In short, especially with

E’strada, the Courts of Appeal are now clearly split on

this issue.

This pronounced split among the Circuits not only

creates divergent rules on imposing the harsh penalty

of deportation, but also undermines the constitutional

requirement of a uniform rule for naturalization

mandated by U.S. Const. Art. I, § 8, Cl. 4. Thus a

permanent resident convicted of an aggravated felony

on or after November 29, 1990 can never establish good

moral character for naturalization. See 8 U.S.C.

§ 1101(f)(8). Yet, under the Circuit split, aliens with

convictions such as that at issue here would be eligible

for naturalization in the First and Ninth Circuits but

not in the Second, Seventh or Eleventh, creating

precisely the non-uniform rules on naturalization that

the Framers sought to avoid.

In addition, this split creates divergent standards

for punishment under 8 U.S.C. § 1826(b)(2) (re-entry

after conviction of an aggravated felony), a matter of no

small moment given the fact that the current sentencing

enhancements under the Sentencing Guidelines provide

for at least an eight level enhancement and a maximum

term of 20 years. See U.S.S.G. § 2L1.2(b)(1)(C). Indeed,

this divergence unfairly creates significantly different

penalties depending upon the accidents of geography

and has been expressly noted in L’/nited States v. Baza-

Martinez, 464 F.3d 1010 (9" Cir. 2006), which involves a

conviction under the very same North Carolina statute

at issue here. Finally, this recognized Circuit split on an

aggravated felony definition is certainly on a par with

Circuit splits over the meaning of aggravated felony that

led to the grant of certiorari in Lopez v. Gonzales, 549

U.S. 47 (2006) and Leocal v. Ashcroft, 543 U.S. 1 (2004)

or divergence on criminal matters in the immigration

context that led to the grant of certiorari in United

States v. Flores-Figueroa, 274 Fed. Appx. 501, 2008 U.S.

App. LEXIS 8759 (8'" Cir. 2008), cert. granted, 2008 U.S.

LEXIS 7827 (Oct. 20, 2008).

In addition, the decision below overlooked the

longstanding rule of lenity or narrow construction

dating back to Fong Haw Tan v. Phelan, 333 U.S. 6, 10

(1948) and most recently reaffirmed by this Court in

Leocal, 543 U.S at 12 n.8 by which any ambiguity in a

deportation provision is to be resolved in the alien’s

favor given the harsh consequences of removal.

Moreover this rule is particularly apt here since the

deportation provision is also part of a federal criminal

sLatute.

STATEMENT OF THE CASE

A native and citizen of Honduras, Henry Canales

was born on November 17, 1985 and became a

lawful permanent resident on May 6, 2000 at age 14.

His brother, Marine Lance Corporal Rovin Noe Canales-

Matamoros has been deployed to Iraq. In the only

criminal matter in his entire life, Henry Canales was

convicted in North Carolina Superior Court on August

18, 2006 under N.C. Stat. Gen. § 14-202.1 and given a

suspended sentence of 16 to 20 months’ imprisonment

with 24 months probation. This conviction arose cut of

the young man’s consensual relationship with his

teenage girlfriend whose father still views Henry

8

Canales as a decent young man and who has opposed

his deportation.

As required by N.C. Stat. Gen. § 15A-13438(b2)(4),

the North Carolina Superior Court had to determine

whether the offense involved sexual abuse of a minor as

that term was used under state law, concluded that this

was not the case and did not check the sexual abuse of a

minor finding required if sexual abuse of a minor had

been involved. See, e.g., State v Couser, 163 N.C. 727,

782, 5948.E.2d 420, 423 (Ct. Appeals 2004) (sexual abuse

under North Carolina law a broad term). In other words,

under N.C. Stat. Gen. § 15A-1348(b2)(4) certain special

conditions of probation had to be imposed if the offense

did involve sexual abuse of a minor. Finding that sexual

abuse of a minor was not involved, the Superior Court

did not impose those conditions. While serving his

probationary sentence without incident, Mr. Canales was

taken into custody by United States Immigration &

Customs Enforcement (“USICE”) on or about February

22, 2007, and then transferred from his home in North

Carolina to the Stewart Detention Center in Lumpkin,

Georgia.

During removal proceedings in detention, the

Immigration Court (Cassidy, J) sustained the sole

charge of removability under 8 U.S.C. § 1101(a)(43)(A)

and the Petitioner appealed to the Board. On appeal to

the BIA, he urged that the Board should overrule

Vatter of Rodriguez-Rodriguez, 221 & N Dec. 991 (BIA

1999) in which a deeply divided Board with the alien

appearing pro se had held that 18 U.S.C. § 3509(a)(8), a

witness rights statute that did not define any offense,

could be used in defining the aggravated felony of

conviction of sexual abuse of a minor'. In support of this

appeal, the Petitioner cited, among other things,

legislative history that had understandably not been

brought to the Board’s attention by the unrepresented

alien. On September 6, 2007 the Board handed down a

single member non-precedential decision* that affirmed

the Immigration Judge and adhered to Rodriguez-

Rodriguez in continuing to follow 18 U.S.C. § 3509 as a

guide to defining sexual abuse of a minor in line with

precedent in the Eleventh Circuit. (App. 7a—10a).

See, e.g., Bahar v. Ashcroft, 264 F.3d 1309 (11 Cir. 2001).

A timely petition for review was filed with the

Eleventh Circuit on September 11, 2007, a motions panel

of that Court denied a stay on September 20, 2007 and

Henry Canales was deported to Honduras on or about

October 9, 2007. On July 10, 2008 the Eleventh Circuit

issued a decision denying the petition for review.’ In that

' The alien in Rodriguez-Rodriguez had been convicted

under Texas Penal Code Ann. §21.08 for indecent exposure and

had received the maximum sentence of ten years imprisonment.

221& N Dec. at 992.

- Only decisions so designated, which this one was not, have

precedential value. See 8 C.FR. § 1003.1(g).

+ Tnitially, the Eleventh Circuit issued an order on March

26, 2008 dismissing the petition for lack of subject matter

jurisdiction, which, under Eleventh Circuit Rule 40-4 would

have limited the Petitioner to a motion for reconsider and

precluded a petition for rehearing or rehearing en banc. By

motion under Rule 40-4, the Petitioner argued that under

Section 242(a)(2)(D) of the Act, 8 U.S.C. $12521a)(2)(D), as

enacted by the REAL ID Act of 2005, Pub. L. No. 199-13, 119

Cont'd

10

decision the Eleventh Circuit followed Bahar in adhering

to Rodriguez-Rodriguez and sanctioning resort to

18 U.S.C. § 3509 as a guide for defining sexual abuse of

a minor. A timely petition for rehearing with a suggestion

for rehearing en banc was denied on August 14, 2008.

(App. 14a—15a).

REASONS FOR GRANTING THE PETITION

Certiorari should be granted because the decision

below not only conflicts with this Court’s precedent on

statutory construction but also creates a split among

the circuits. See, e.g.. Lugar v. Edmonson Oil Co.,

457 U.S. 922, 926 (1982) (certiorari granted where

opinion below “appears to be inconsistent with prior

decisions of this Court.”); Supreme Court Rule 10

(conflict among the circuits a basis for certiorari).

A. A Recognized Circuit Split Exists

A clear circuit split now exists on whether

deportation for conviction of sexual abuse of a minor

should be based upon the uniform federal criminal

definition of that criminal provision or upon language

in a witness protection statute that does not define a

(Cont'd)

Stat. 231 (May 11, 2005)("REAL ID Act”), the Court of Appeals

did have jurisdiction to review the purely legal question of

whether the Petitioner’s offense constituted an aggravated

felony and that a petition for rehearing and rehearing en banc

was proper. The Court of Appeals granted this motion, withdrew

the March 26, 2008 order, issued an opinion dated July 10, 2008

denving the petition for review on the merits and entertained

the petition ror rehearing and rehearing ex banc.

1]

crime. In the Ninth Cireuit the unanimous en banc

decision in #'strada has persuasively held the federal

criminai definition to control whether an alien has been

convicted of this aggravated felony. Likewise, the First

Circuit in Emile v. INS, 244 F.3d 183, 186 n.2 (1% Cir.

2001), would appear to fall in line with Estrada, in

expressing doubt about the relevance of 18 U.S.C.

§ 35909 and resolving the aggravated felony issue by

resort to the federal criminal statute, while noting the

dissent in Rodriguez-Rodriguez, 221 & N Dec. at 999—

1005 (Guendelsberger, Member), urging adoption of the

federal criminal definition. By contrast, the Eleventh

Circuit plainly sanctions resort to 18 U.S.C. § 3509 as a

guide to defining conviction for sexual abuse of minor

as does the Second Circuit in Mugall: and the Seventh

Circuit in Lara-Ruiz. In short, there is now a

pronounced split over the controlling rule for imposing

what this Court has repeatedly recognized to be a harsh

punishment. See e.g., INS v. Cardoza-Fonseca, 480 U.S.

421, 449 (1987) (“[dJeportation is always a harsh

measure”): Costello v. INS, 376 U.S. 120, 128 (1964)

(deportation is a “drastic measure” where the “stakes

are considerable for the individual”); Ng Fung Ho v.

White, 259 U.S. 276, 284 (1922) (deportation may “result

... in loss of both property and life; or of all that makes

life worth living”). Indeed, the severity of harm from

deportation rests upon concerns that literally date back

to the founding era with no less an authority than James

Madison expressly acknowledging the draconian

character of deportation “...{I]f a banishment of this

sort be not a punishment and among the severest of

punishments, it will be difficult to imagine a doom to

which the name can be applied.” James Madison,

12

‘Report on the Alien and Sedition Acts,” Writings at

623 (Library of America 1999, Jack N. Rakove, ed.).

Moreover, the banishment here would effectively last

the Petitioner’s whole life. See 8 U.S.C. § 1182(a)(9)(A)(i)

(alien deported for conviction of an aggravated felony

may never lawfully return). Indeed, as this Court

recognized in Lopez v. Gonzales, 549 U.S. 47 (2006) an

aggravated felony conviction deprives an alien of

virtually all relief from removal even with a brother

serving in the United States Marine Corps.

Furthermore, such a pronounced split encourages

undesirable forum shopping, especially since the

government has the ultimate power to transfer aliens

facing removal to detention centers in circuits where

the law favors the government. See, e.g., Rosendo-

Ramirez v. INS, 32 F.3d 1085 (7 Cir. 1994), which notes

the government’s upper hand on forum choice.’ In this

connection, moreover the circuit split in this case

contravenes the Founders’ intent embodied in U.S.

Const. Art. I, § 8, Cl. 4 to establish a uniform rule of

naturalization. See, e.g., Graham v. Richardson, 408

* This would be especially true for aliens subject to

mandatory detention under 8 U.S.C. §1226(c), as would be the

case for all aliens facing removal for conviction of an aggravated

felony who had been imprisoned after mandatory detention

became effective. See Demore v. Kim, 538 U.S. 510 (2003); Kyei

v. INS, 65 F.3d 279, 284 (2d Cir. 1994) (Court expresses concern

abont apparent government policy to deny change of venue to

alien’s residence where alien no longer detained in remote

detention facility). Moreover the administrative view is that

mandatory detention is triggered even by an arrest, despite a

non-custodial sentence at the conclusion of the criminal case

See Matter of West, 22 1 & N Dec. 1405 (BIA 2000

U.S. 365, 382 (1971) (holding cited clause imposes an

“explicit constitutional requirement” on naturalization

eligibility)

In addition, this Circuit split imposes markedly

different standards for punishment under & U.S.

§ 1326(b)(2) based upon the fortuity of geography.

Indeed, this Circuit split has been specifically recognized

in the criminal context involving the very same North

Carolina statute at issue here. See, e.g., United States

v. Baza-Martinez, 464 F.3d 1010 (9"" Cir. 2006), which

holds that a conviction under this statute does not

constitute conviction of sexual abuse of a minor and

expressly notes the conflict with Bahar and United

States v. Izaguire-Flores, 405 F.3d 270 (5" Cir.), cert.

denied, 546 U.S. 905 (2005) on this point.

B. The Decision Below Contravenes Plain Statutory

Language

The decision below contravenes the plain language

of the Act in allowing deportation for conviction of an

aggravated felony based upon a statute that does not

define a crime. In other words, LO be deported for

conviction of an aggravated felony an alien must, of

necessity, be convicted but no one, by definition, can be

convicted under 18 U.S.C. § 3509, which does not define

a crime. Thus as Estrada, 2008 U.S. App. LEXIS 21783

at 8 n.2 persuasively holds,

Although Congress also defined ‘sexual abuse’

in 18 U.S.C. § 3509/a)(8), this section does not

define a crime, but merely addresses the

rights of ch viet and witnesses. Since

14

8 U.S.C. § 1101(a)(48)(A) defines a category

of crime it is more plausible that Congress

intended the ‘aggravated felony’ of ‘sexual

abuse of a minor’ to incorporate the definition

of ‘sexual abuse of a minor’ in 18 U.S.C. § 2243,

which is a criminal statute outlining the

elements of the offense, rather than the

definition of ‘sexual abuse’ found in 18 U.S.C.

S 3509

See also Gattem v. Gonzales, 412 F:3d 758, 768 (7° Cir.

2005) (Posner, J., dissenting) (BIA was “[cJasting far

afield,” in selecting 18 U.S.C. § 3509 because “. . . it is

not a statute that criminalizes sexual abuse. Rather, it

provides procedural protections for child victims and

child witnesses... .”); Rodriguez-Rodriguez, 221 & N

Dec. at 1000 (Guendelsberger Member, dissenting)

(“That section [18 U.S.C. § 3509] is a social welfare

provision affording protection to children in a wide

variety of situations. We are not here construing a law

affording rights, but are determining the extent to

which a conviction will be treated as an aggravated

felony for purposes of immigration law”).

[n addition, defining sexual abuse of a minor by

reference to the criminal definition, finds further

support in the controlling rule of statutory construction,

noseitur a sociis, which requires matter enumerated

in a series to be construed in a similar fashion. Here

“sexual abuse of a minor in Section 101(a)(438)(A) follows

two other crimes, “murder and rape,” in a series and

thus should be defined by resort to a criminal definition

15

not a social welfare statute. United States v. Williams,

128 S.Ct. 1830, 1839 (May 19, 2008) (“commonsense

canon of noscitur a sociits—which counsels that a word

is given more precise content by the neighboring words

with which it is associated.”); Leocal » Ashcroft, 543 U.S.

1, 9 (2004) (“... we construe language in its context and

in light of the terms surrounding it.”); Singh v. Ashcroft,

383 F.3d 144, 163 (3d Cir. 2004) (same).

Furthermore, legislative history not brought to the

Board’s attention by the pro se alien in Rodriguez

Rodriguez further supports the holding in Estrada and

the dissent’s conclusion in Rodriguez-Rodriguez itself

that 18 U.S.C. §§ 22438 and 2246 should provide the

operative definition for “sexual abuse of a minor.” The

omnibus legislation that ultimately produced ITRIRA

considered sexual! abuse of a minor in another section

and used that term as employed in 18 U.S.C. §§ 2243

and 2246. Thus the “Child Pornography Prevention Act

of 1996,” which was part of the same legislation that

yielded ITRIRA, has a specific subsection dealing with

sexual abuse of a minor in amending 18 U.S.C. § 2243 to

broaden the geographic reach of the provision. See Pub.

L. 104-208, 110 Stat. 3009-26, 3009-31, Subsection 7(c)

(“SEXUAL ABUSE OF A MINOR—Section 2243(a) of

title 18, United States Code is amended by inserting

“crosses a State line with the intent to engage in a sexual

act with a person who has not attained the age of 12

years, or’ after ‘Whoever.’”)’. In other words, the

legislation that produced IIRIRA made specific

reference to sexual abuse of a minor in 18 U.S.C. § 22438

Subsection 7 is separate V re ferred to as the Amber

Hlagerman Child Protection Act of 1996

16

reflecting a clear Congressional awareness of this

criminal law definition in the very same legislation that

would add this criminal! law term of art, “sexual abuse

of a minor,” to the definition of aggravated felony.

Under standard rules of statutory construction, this

strongly suggests that the term should be given the

same operative definition in other portions of the same

legislation, especially since there is no comparable

reference to 18 U.S.C. § 3509(a) in this omnibus

enactment. Gustafson v. Alloyd Co., Inc., 513 U.S. 561,

570 (1995) (“identical words used in different parts of

the same act are intended to have the same meaning.”);

2A N. Singer Sutherland Statutory Construction

1 46:06 at 1922 (“There is a presumption that the same

words used in the same act have the same meaning.”).

Furthermore, as Hstrada, 2008 U.S. App. LEXIS

21878 at 24 persuasively holds, no deference should be

accorded the majority in Rodriguez—Rodriguez, for

that decision did not construe the Act and produce a

uniform definition of sexual abuse of a minor but instead

adopted 18 U.S.C. § 3509(a)(&) as an advisory guideline,

one that would be subject to multi-factor analysis on a

case by case basis.’ Furthermore, as £strada soundly

Indeed, the BIA majority in Rodriguez-Rodriguez

appeared to engage in just such a multi-factor analysis. Thus

once the offense was found to fall within the definition of sexual

‘

abuse in this specifie subsection of 18 U.S.C. §3509(a), the Board

placed particular emphasis upon both the necessary elements

of the Texas offense and the severity of the penalty for the

crime, expressly noting that the respondent had received

the maximum sentence of 10 years. 22 1 & N Dec. at 996

(Cont'd

17

notes, 2008 U.S. App. LEXIS 21878 at 24-25, such a

deficiency in the BIA’s analysis runs directly counter to

the controlling categorical approach to removability

determinations under Taylor v. United States, 495 U.S.

575, 599 (1990), which presupposes a uniform generic

definition of the removal ground against which the

statute of conviction can compared to determine

whether the two are congruent. See Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 128 S.Ct. 815, 818 (2007). Yet as

basic geometry teaches, congruence to a designated

object cannot be easily measured when that object keeps

changing shape.

Moreover, as Estrada also recognizes, sexual abuse

of a minor represents a criminal law term and indeed

one used in determining punishment under a criminal

law statute, 8 U.S.C. § 1826(b), subjects over which the

Board admittedly has no expertise. See, e.g., Crandon

v. United States, 494 U.S. 152, 177 (1990) (Scalia, JJ.

concurring) (Chevron does require judicial deference to

executive interpretations of criminal law provisions);

Matter of Carachuri-Rosendo, 241 & N Dee. 382, 385

(BIA 2007) (“Our interpretation of criminal statutes is

not entitled to deference; instead we owe deference to

the meaning of Federal criminal law as determined by

the Supreme Court and the Federal circuit courts of

appeals.”). Thus conviction for sexual abuse of minor

forms an integral part of the federal criminal statute

(Cont d)

(“The severity of the penalty for a conviction under the statute

demonstrates that Texas considers the crime to be serious. The

respondent received the maximum sentence of 10 years’

imprisonment.”

18

punishing illegal reentry and, as with all federal criminal

statutes, should be a matter solely for federal court

review. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 264,

258 (2006). Indeed, for example, in Leocal, 543 U.S. at

12 n.8 reversing the Eleventh Circuit on an aggravated

felony issue and holding that the immigration and

crimina! law terms must be consistently interpreted, this

Court did not even cite Chevron USA v. Natural Res.

Def. Council, 467 U.S. 837 (1984) or consider deference

to the BIA, but rather applied ordinary rules of

Statutory construction.

Applying the federal criminal law definition of sexual

abuse of a minor to this case under the categorical

approach makes clear that the Section 101(a)(43)(A)

charge should not have been sustained. Under the

categorical approach, the full range of conduct covered

by the criminal statute must fall within the removal

provision for a conviction under that statute to

constitute a removable offense, a point acknowledged

by the opinion below. See also Taylor, 495 U.S. at 602;

Estrada, 2008 U.S. App. LEXIS 21873 at 6 (quoting

from Navarro-Lopez v. Gonzales, 503 F.3d 10638, 1067-

68 (9" Cir. 2007) (en banc), “The categorical approach

requires us to make a categorical comparison of the

elements of the statute of conviction to the generic

definition of [of the crime], and decide whether the

conduct proscribed by the [the statute] is broader than,

and so does not categorically fall within, this generic

definition.”); United States v. Baron-Medina, 187 F.3d

1344, 1346 (9"" Cir. 1999) (state offense “. . . qualifies as

‘sexual abuse of a minor’ and hence an aggravated felony

if and only rf the ‘full range of conduct’ covered by it

falls within the meaning of that term.”) (emphasis

supplied).

19

Turning first to the federal criminal definition of

sexual abuse of a minor, 18 U.S.C. § 2243 requires the

defendant to have committed a “sexual act” with a

minor, which is limited to conduct ranging from

actual intercourse to touching of the naked genitalia.

See 18 U.S.C. § 2246(2)(A)—(D) (defining “sexual act”).

By contrast, the North Carolina statute defines a far

broader offense that simply does not require such a

sexual act to establish a violation. Indeed, the state

statute can be violated even by speech. See, e.g., State

v. Every, 157 N.C. App. 200, 578 S.E.2d 642 (2003).

Similarly in State v. McClees, 108 N.C. App. 648, 424

S.E.2d 687 (N.C. App. Ct. 1993) the defendant was

convicted under this statute by secretly videotaping an

undressed minor, even though the video was not

disclosed until the youth had reached the age of majority.

Furthermore, the North Carolina statute is a strict

liability statute in the sense of not allowing a mistake

about the age of the minor as a defense unlike the federal

statute. Compare State v. Rhodes, 321 N.C. 102, 361

S.E.2d 578 (1987) (defendant’s knowledge of age of

minor not an element of offense) with 18 U.S.C. § 2243(c)

(defendant’s reasonable though mistaken belief about

age of minor constitutes defense). Accordingly, when the

federal criminal definition of sexual abuse of minor is

applied, conviction under the North Carolina statute will

not sustain a charge under Section 101(a)(43)(A).

C. The Decision Below Gverlooked Lenity

The Court of Appeals also failed to apply the rule of

lenity or narrow construction. This controlling rule of

construction has both deep roots and modern relevance

in immigration law going back to Fong Haw Tan

20

Phelan, 333 U.S. 6, 9 (1948) and requires deportation

provisions to be narrowly construed so as to give the

alien as much protection as possible. Thus in Tan this

Court rejected an administrative interpretation of a

deportation provision, despite recognizing logical

support for that view and unanimously resolved the

ambiguity in the alien’s favor, holding with emphasis

upon the severe penalty represented by deportation:

We resolve the doubts in favor of that

construction because deportation is a drastic

measure and at times the equivalent of

banishment or exile. (citation omitted). It is

the forfeiture for misconduct of a residence

in this country. Such a forfeiture is a penalty.

To construe this statutory provision less

generously to the alien might find support in

logic. But since the stakes are considerable

for the individual, we will not assume that

Congress nreant to trench on his freedom

beyond that which is required by the

narrowest of several possible meanings of the

words used.

emphasis supplied). See also Leocal v. Ashcroft, 543

U.S. 1, 12 n.8 (2004) (recognizing rule as basis for

decision); /N’S v. St. Cyr, 533 U.S. 201 (2001) (reaffirming

YT

rule); Cardoza-Fonseca, 480 U.S. at, 449 (recognizes the

“special canon of statutory construction whereby

ambiguities in deportation statutes are to be construed

in favor of the alien); 3 C. Gordon, S. Mailman, 8. Yale-

Loehr, /mmigration Law and Procedure § 71.01 [6] [b]

deportation statutes must be “strictly construed” and

“must be limited to the narrowest compass reasonably

21

extracted from their language”). The grounding of this

rule in the harm to the alien has particular relevance

here, for, as the Third Circuit recognized in Steele v.

Blackman, 236 F.3d 130 (3d Cir. 2001), deportation for

conviction of an aggravated felony constitutes a sentence

of life-time banishment. See also Lok v. INS, 548 F.2d

37, 39 (2d Cir. 1977) (deportation a sanction which in

severity surpasses all but the most Draconian).

Moreover, at the very least, the unanimous en banc

decision in f'strada provides strong support for applying

the rule of narrow construction or lenity here, especially

since both deportation and criminal punishment are at

issue here. See Leocal, 543 U.S. at 12 n. 8 (“Because we

must interpret the statute consistently, whether we

encounter its application in a criminal or noncriminal

context, the rule of lenity applies”). In this connection

moreover, the federal criminal definition of sexual abuse

of a minor represents a uniform, bright line rule easy to

administer under the categorical approach in both the

District Courts and Immigration Courts, while avoiding

indeterminate multi-factor analysis calculated to

produce uneven results at best. Thus in Lopez, 127 S.Ct.

at 632 this Court reiterated the importance of uniform

rules in the immigration context, especially given the

criminal aspect in rejecting the government’s attempt

to base an aggravated felony classification upon the

vagaries of state law: “Finally, the Government’s reading

would render the law of alien removal, see 8 U.S.C.

§ 1229b(a)(3), and the law of sentencing for illegal

reentry into the country, see U.S.S.G. § 2L1.2,

dependent on varying state criminal classifications even

when Congress has apparently pegged the immigration

statutes to the classifications Congress itself chose.”

22

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

THomas E. MoseLey

One Gateway Center

Suite 2600

Newark, New Jersey 07102

(973) 622-8176

Counsel for Petitioner

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT FILED JULY 10, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 07-14225

Non-Argument Calendar

BIA No, A46-981-434

HENRY A. CANALES-MATAMOROS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the

Board of Immigration Appeals

(July 10, 2008)

Refore TJOFLAT, BLACK and KRAVITCH, Circuit

Judges.

PER CURIAM:

Ilenry Canales-Matamoros (“Matamoros”), a native

of Honduras and a lawful permanent resident of the

United States, petitions this court for review of the

2a

Appendix A

Board of Immigration Appeals’ (“BIA”) affirmance of the

Immigration Judge’s (“IJ”) order of removal on the

grounds that Matamoros had been convicted of an

aggravated felony. Because the BIA correctly

determined that the offense qualified as an aggravated

felony, we lack jurisdiction to review the removal order.

Accordingly, we deny the petition.

Matamoros arrived in the United States in 2000 and

became a lawful permanent resident. In 2006, he was

convicted in North Carolina of indecent liberties with a

child, in violation of N.C. Gen. Stat. § 14-202.1.' As a

result of this conviction, the Department of Homeland

Security issued a notice to appear, charging him with

grounds that his conviction qualified as an aggravated

felony as defined in 8 U.S.C. § 1101(a)(43)(A).

At the removal hearing, Matamoros admitted the

allegations, and the IJ found Matamoros removable.

Matamoros then appealed to the BIA, arguing that

under the categorical approach, the entire range of

conduct prohibited by the statute must qualify as sexual

1. Under N.C. Gen. Stat. § 14-202.1,

a) A person is guilty of taking indecent liberties

with children if, being 16 years of age or more and

at least five vears older than the child in question

he (1) Willfuliy takes or attempts to take any

immoral, improper, or indecent liberties with any

child of either sex under the age of 16 years for the

purpose of arousing or gratifying sexual desire.

3a

Appendix A

abuse in order to constitute a removable offense. He

explained that it was clear that the statute did not

qualify because the North Carolina legislature enacted

§ 15A-1343(b2), which required courts to determine if

an offense under § 14-202.1 constituted sexual abuse of

a minor, and if every violation of § 14-202.1 qualified as

sexual abuse, this second statute would be unnecessary.*

He also attempted to distinguish Bahar v. U.S. Att’y

Gen., 264 F.3d 1309 (11th Cir. 2001), in which this court

held that the North Carolina statute under which

Matamoros was convicted constituted an aggravated

felony. He then argued that the BIA was not bound by

— and should overrule — the decision in Matter of

Rodriguez-Rodriguez, Int. Dec. 3411 (1999) (discussing

Texas law prohibiting indecency with a child by

exposure) because the Texas statute differed from the

North Carolina statute. He urged the BIA to adopt a

definition of sexual abuse consistent with that in the

federal criminal code 18 U.S.C. § 2243. Finally, he argued

that the rule of lenity required the BIA to conclude the

offense was not an aggravated felony.

The BIA affirmed the IJ’s order of removal,

concluding that it was bound by Eleventh Circuit

precedent, and the plain language of the North Carolina

2. Matamoros’s argument is misplaced. Section i5A-1343

applies to conditions of probation. Subsection (b2) lists specific

terms of probation for those convicted of sexual abuse of a minor.

The statute does not require the court to make any specific

finding about the conviction. Notably, however, the state court

applied the same special conditions listed in this subsection to

Matamoros.

4a

Appendix A

statute confirmed that Matamoros’s conviction qualified

as an aggravated felony. Matamoros now petitions this

court for review.

This court must inquire into subject matter

jurisdiction sua sponte whenever it may be lacking. See

Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th

Cir. 2005). Section 1252(a)(2)(C) provides that

“[njotwithstanding any other provision of law...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 covered in section

... 1227(a)(2)(A)(iii).” 8 U.S.C. § 1252(a)(2)(C). However,

“(njothing in [§ 1252(a)(2)(C)]... shall be construed as

precluding review of constitutional claims or questions

of law.” REAL ID Act of 2005, Pub.L. No. 109-138, 119

Stat. 231 (2005) (codified at 8 U.S.C. § 1252(a)(2)(D)). In

Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1359-60 (11th

Cir. 2005), this court determined that the question of

whether a conviction qualified as an aggravated felony

under a different immigration provision was a question

of law within the court’s jurisdiction. Accordingly, we

have subject matter jurisdiction to review Matamoros’s

claims in his petition that his state conviction was

not an aggravated felony for purposes of 8 U.S.C.

§ 1227(a)(2)(A)(iii). Our review is limited, however, to

determining whether Matamoros is an alien who is

removable by reason of having committed an

aggravated felony. Bahar, 264 F.3d at 1311.

An alien who has been convicted of an aggravated

felony is removable. 8 U.S.C. § 1227(a)(2)(A)(iil).

Sa

~&

Appendix A

Relevant to this case, aggravated felony is defined

as, inter alia, sexual abuse of a minor. 8 U.S.C.

§ 1101(a)(43)(A).

Our conclusion is dictated by Bahar, in which this

court considered the statute at issue here and

determined that the crime defined by § 14-202.1 of the

North Carolina General Statute qualified as “sexual

abuse of a minor” if the “full range of conduct” covered

by the statute fell within the meaning of the term. 264

F.3d at 1311. Relying on the plain meaning of the term

“sexual abuse of a minor,” this court concluded that the

term “includes not only acts that involve physical contact

between the perpetrator and the victim, but also acts

do not.” Bahar, 264 F.3d at 1311. In reaching this

decision, the court considered the BIA’s decision in

Rodriguez-Rodriguez and found the decision reasonable

and thus entitled to deference. /d. at 1312.

As the government notes, we are bound by decisions

of prior panels until overruled by this court sitting

en banc or by the Supreme Court. L’nited States v. King,

509 F.3d 1338, 13438 (llth Cir. 2007); Chambers v.

Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998). Thus,

Bahar controls, and the BIA properly determined that

Matamoros was removable for having committed an

aggravated felony. Moreover, the fact that Matamoros

raises arguments not considered in the prior decision is

irrelevant to the application of the prior panel rule.

See, e.g., Saxton v. ACF Indus., 239 F.3d 1209, 1215 (11th

Cir. 2001) (noting “that holding [of the earlier panel] is

6a

Appendix A

the law of this Circuit regardless of what might have

happened had other arguments been made to the panel

that decided the issue first”) (citation omitted).

Finally, although this court retains jurisdiction to

consider constitutional questions such as Matamoros’s

due process claim, Matamoros is not entitled to relief.

The BIA implicitly considered his argument that

Rodriguez-Rodriguez should be overruled when it

determined that it was bound by this court’s decision in

Bahar. Moreover, it appears that Matamoros only

couches his allegations of error in constitutional

language, but he does not raise genuine constitutional

violations. As such, this court would lack jurisdiction to

reach his issues. See Arias v. U.S. Att’y Gen., 482 F3d

1281, 1284 (11th Cir. 2007).

Because the BIA properly concluded that

Matamoros was an alien who was removable by reason

of having committed an aggravated felony, and we lack

jurisdiction to review the removal order. Accordingly,

we DENY the petition.

4

/a

APPENDIX B — DECISION OF THE

BOARD OF IMMIGRATION APPEALS

DATED SEPTEMBER 6, 2007

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A46 981 434 - Lumpkin, GA

Date: September 6, 2007

In re.: HENRY CANALES-MATAMOROS

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Thomas E. Moseley, Esquire

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C.

§ 1227(a)(2)(A)(ili)| - Convicted of

aggravated felony

APPLICATION: Termination

The respondent, a native and citizen of Honduras

and a lawful permanent resident of the United States,

has appealed the Immigration Judge’s May 8, 2007,

8a

Appendix B

decision ordering him removed from the United States

as an alien convicted of an aggravated felony. On appeal,

the respondent claims that the Immigration Judge erred

in finding that his conviction for taking indecent liberties

with a child, in violation of N.C. GEN. STAT. ANN. § 14-

202.1 (West 2006), constitutes the aggravated felony

of “sexual abuse of a minor,” pursuant to section

101(a)(48)(A) of the Immigration and Nationality Act,

8 U.S.C. § 1101(a)(43)(A) (2007).' For the reasons set out

below, the appeal will be dismissed.

In determining whether an offense constitutes an

aggravated felony within the meaning of section 101

(a)(43)(A) of the Act, the Board has looked to federal

definitions. Matter of Rodriguez-Rodriguez, 22 I&N

Dec. 991, 995 (BIA 1999). The Board has found the

definition in 18 U.S.C. § 3509(a) a useful guide in

identifying the types of offenses that would constitute

sexual abuse of a minor. /d at 996. According to this

provision, “the term ‘sexual abuse’ includes the

1. In the respondent's Notice of Appeal, he requested

suspension of removal proceedings based on his filing of a Petition

for Writ of Habeas Corpus in the United States District Court for

the Northern District of Georgia. As the respondent is now seeking

a different form of relief, termination of removal proceedings, on

completely different grounds in his brief on appeal, it appears

that the respondent is no longer secking suspension of remova!

proceedings based on his due process claim in collateral state

criminal proceedings. In any event, the Immigration Judge was

not obligated to suspend properly-initiated removal proceedings

based on a collateral criminal proceeding. Also, the Board does

not have jurisdiction to consider whether the respondent is being

denied due process in collateral state criminal proceedings.

See &C.FR. § 1008.1(0b). (ec.

Va

Appendix B

employment, use, persuasion, inducement, enticement,

or coercion of a child to engage in, or assist another

person to engage in, sexually explicit conduct...” “Child”

is defined as a person under the age of 18. 18 U.S.C.

§ 3509(a)(2), (8). Further, the United States Court of

Appeals for the Eleventh Circuit, has held that the

“ordinary meaning of sexual abuse of a minor includes

not only acts that involve physical contact between the

perpetrator and the victim, but also acts that do not.”

Bahar v. Ashcroft, 264 F.3d 1309, 1311 (11th Cir. 2001)

(internal quotation marks omitted).

In addition, to determine whether an offense

qualifies as an aggravated felony, we also apply the

categorical approach set out in Taylor v. United States,

495 U.S. 575 (1990). That is, we look at the statutory

definition of the offense and determine whether the full

range of conduct encompassed by the statute, or the

generic elements of the offense, would fall within the

particular aggravated felony definition.

The offense in question is defined as:

(a) A person is guilty of taking indecent

liberties with children if, being 16 years of age

or more and at least five years older than the

child in question, he either:

(1) Willfully takes or attempts to

take any immoral, improper, or

indecent liberties with any child of

1Va

Appendix B

either sex under the age of 16 years

for the purpose of arousing or

grating sexual desire; or

(2) Willfully commits or attempts to

commit any lewd or lascivious act

upon or with the body or any part

or member of the body of any child

of either sex under the age of 16

years.

N.C. GEN. STAT. ANN. § 14-202.1 (West 2006)

(emphasis added).

The plain language of the North Carolina statute

indicates that a violation of the statute necessarily

constitutes sexual abuse of a minor. First, the statute

requires the victim to be under 16 years of age. Second,

the statute requires that the offender has the intent to

seek sexual gratification. This is reflected in terms and

phrases such as “willfully,” “for the purpose of arousing

or gratifying sexual desire,” and “lewd or lascivious act

upon or with the body... of any child[.]’* Third, the

Eleventh Circuit, in whose jurisdiction this case arises,

has held that a violation of this North Carolina statute

necessarily constitutes sexual abuse of a minor, an

aggravated felony as defined in section 101(a)(43)(A) of

the Act. Bahar, supra, at 1312-13.

‘ = 5 r — ee P - —_— “1, +o — ths -

2. Black’s Law Dictionary defines “lascivious” as “tending

to excite iust; lewd: indecent; obscene. Black's Law Dict mary

R86 (7th ed. 1999

lla

Appendix B

We find that the respondent’s efforts to distinguish

Bahar from this case are unavailing. Although in Bahar

the Eleventh Circuit dismissed the case for a lack of

jurisdiction, in doing so, it had to determine, de novo,

that the North Carolina offense of taking indecent

liberties with children constitutes an aggravated felony

under section 101(a)(43)(A) of the Act. See Bahar, supra,

at 1311. The respondent also claims that the case at bar

is distinguishable from Bahar because here the North

Carolina court did not check the box in the judgment

document indicating that the respondent committed the

offense of sexual abuse of a minor. However, we are

utilizing the categorical approach in this case, 2.¢., we

are only considering the plain language of the statute,

not the underlying documents in the record of

conviction. Inasmuch as the Eleventh Circuit, the

jurisdiction in which this case arises, has determined

that a violation of the North Carolina statute in question

constitutes sexual abuse of a minor, we are bound by

that determination, not by a state court judge’s

designation on a form in a state criminal proceeding.’

Accordingly, the following order shall be entered:

ORDER: The appeal is dismissed.

s/ Roger Pauley

FOR THE BOARD

3. The respondent relies, in part, on cases arising in state

court and federal circuits other than the Eleventh Circuit. These

eases have no precedential authority in the Eleventh Circuit.

12a

APPENDIX C — ORAL DECISION OF THE

IMMIGRATION JUDGE OF THE UNITED STATES

DEPARTMENT OF JUSTICE EXECUTIVE OFFICE

FOR IMMIGRATION REVIEW, UNITED STATES

IMMIGRATION COURT, ATLANTA, GEORGIA

DATED MAY 8, 2007

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

ATLANTA, GEORGIA

May 8, 2007

File No.: A 46 981 434

IN REMOVAL PROCEEDINGS

In the Matter of

HENRY A. CANALES MATAMOROS

Respondent

CHARGE:

APPLICATIONS:

ON BEHALF OF RESPONDENT: Mr. Matos

ON BEHALF OF DHS: Mele Moreno

Appendix C

ORAL DECISION OF THE IMMIGRATION JUDGE

On the basis of respondent’s admission, the Court

finds removability has been established by clear,

convincing and unequivocal evidence. Respondent is not

a native or citizen of the United States, but a native

and citizen of Honduras who became a lawful permanent

resident in May 6, 2000; however, he was convicted of

indecent liberties with a child August 18, 2006. As such,

the respondent is removable as an aggravated felon as

that term is defined under 101(a)(43)(A).

The respondent has requested the relief of voluntary

departure. Of course, the respondent is not statutorily

eligible for voluntary departure due to the aggravated

felony.

ORDER

The respondent is hereby ordered removed,

returned to Honduras, the country of nativity and

citizenship on the charge contained in the Notice to

Appear.

WILLIAM A. CASSIDY

Immigration Judge

l4a

APPENDIX D— ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT DENYING PETITION FOR REHEARING

FILED AUGUST 14, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 07-14225

HENRY A. CANALES-MATAMOROS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the

Board of Immigration Appeals

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

Before: TJOFLAT, BLACK and KRAVITCH, Circuit

Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

oo

lSa

Appendix D

requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure), the

Petition(s) for Rehearing En Bane are DENIED.

ENTERED FOR THE COURT:

s/ Phyllis Kravitch

UNITED STATES CIRCUIT JUDGE