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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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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}
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Suite 2600
Newark. New Jer O710
Q 22-817
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0808%3A1. Public record. Not legal advice.