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Garcia-Urbano v. Sessions

United States Court of Appeals, Eighth Circuit

May 17, 2018

Luis Gerardo Garcia-Urbano, Petitioner,
v.
Jefferson B. Sessions, III, Attorney General of the United States, Respondent.

          Submitted: October 18, 2017

          Petition for Review of an Order of the Board of Immigration Appeals

          Before COLLOTON, BEAM, and BENTON, Circuit Judges.

          COLLOTON, Circuit Judge.

         Luis Garcia-Urbano, a citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals. The Board upheld the decision of an immigration judge that denied Garcia-Urbano's application for asylum, withholding of removal, and protection under the Convention Against Torture. Garcia-Urbano contends that the Board erred in treating his conviction for criminal sexual conduct in the third degree under Minn. Stat. § 609.344, subdiv. 1(b) as an aggravated felony under the Immigration and Nationality Act (INA). We conclude that the Board was correct and therefore deny the petition for review.

         I.

         Garcia-Urbano was admitted to the United States in April 2014 at the age of seventeen as a lawful permanent resident. At the age of eighteen, he pleaded guilty to criminal sexual conduct in the third degree, in violation of Minn. Stat. § 609.344, subdiv. 1(b), and to fleeing a police officer in a motor vehicle, in violation of Minn. Stat. § 609.487, subdiv. 3.

         The Department of Homeland Security commenced removal proceedings against Garcia-Urbano, alleging that the two convictions were grounds for removal from the United States. The Department maintained that criminal sexual conduct in the third degree constituted "sexual abuse of a minor, " and that fleeing a police officer in a motor vehicle was a "crime of violence." Each conviction would thus be an "aggravated felony, " see 8 U.S.C. § 1101(a)(43)(A), (F), and each would serve as an independent ground for removal. See id. § 1227(a)(2)(A)(iii).

         Garcia-Urbano applied for asylum, but the immigration judge denied the application, and the Board dismissed Garcia-Urbano's appeal. The Board concluded that Garcia-Urbano was ineligible for asylum because his conviction for criminal sexual conduct was an aggravated felony under the INA. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). Because that conviction sufficed to make Garcia-Urbano ineligible, the Board found it unnecessary to address Garcia-Urbano's conviction for fleeing a police officer in a motor vehicle.[1]

         II.

         An alien who "is convicted of an aggravated felony at any time after admission" is both removable and ineligible for asylum. 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1158(b)(2)(A)(ii) & (B)(i). "Sexual abuse of a minor, " under either federal or state law, is an aggravated felony. Id. § 1101(a)(43)(A). Therefore, Garcia-Urbano's conviction in Minnesota for criminal sexual conduct in the third degree is an aggravated felony if it constitutes "sexual abuse of a minor" within the meaning of the INA.

         To determine whether an offense of conviction is an aggravated felony, we look only to the elements of the criminal statute and apply the so-called categorical approach. Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1567-68 (2017). The Minnesota statute at issue makes it a crime for an actor to engage in "sexual penetration" with another when the other party is "at least 13 but less than 16 years of age and the actor is more than 24 months older." Minn. Stat. § 609.344, subdiv. 1(b). We must consider whether "the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor." Esquivel-Quintana, 137 S.Ct. at 1568. If so, then Garcia-Urbano was convicted of an aggravated felony.

         Congress did not define "sexual abuse of a minor, " and the Board has interpreted the phrase through case-by-case adjudication. In this case, Garcia-Urbano argued that his offense did not qualify because there was not enough difference in age between him and the victim: he was eighteen, and she was fifteen. He further urged that his offense was not sufficiently serious, because "[he] and his girlfriend essentially had consensual sex (except that statutory provision prevents use of consent as a defense)." The Board rejected these contentions, concluding that "sexual abuse of a minor" does not require a "meaningful age difference" between a perpetrator and a victim under the age of sixteen, and that the state criminal offense was sufficiently serious to qualify as an aggravated felony. The Board reasoned that because the Minnesota statute "involves a younger adolescent victim who is between the ages of 13 and 15 years old (a minor), and it requires sexual abuse (e.g., penetration), it constitutes 'sexual abuse of a minor, ' under our definition."

         While Garcia-Urbano's petition for review was pending with this court, the Supreme Court decided Esquivel-Quintana. In determining whether statutory rape under California law constituted "sexual abuse of a minor" under the INA, the Court held "that in the context of statutory rape offenses focused solely on the age of the participants, " the INA unambiguously requires the victim of sexual abuse to be younger than sixteen years old. 137 S.Ct. at 1572-73. Because the California statute encompassed victims who had turned sixteen, a conviction under that law did not qualify as an aggravated felony. Id. The Minnesota statute ...


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