Mauricio Vargas v. Department of Homeland Security Mario Ortiz, Interim District Director, in His Official Capacity Only Executive Office of Immigration Review Alberto R. Gonzales, Attorney General

Citations: 451 F.3d 1105; 2006 U.S. App. LEXIS 15175Docket: 05-9581

Court: Court of Appeals for the Tenth Circuit; June 21, 2006; Federal Appellate Court

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Mauricio Vargas, a native of Mexico and lawful permanent resident since April 26, 1999, was ordered removed from the United States following a state conviction for contributing to the delinquency of a minor, specifically for inducing unlawful sexual contact. Under 8 U.S.C. § 1227(a)(2)(A)(iii), any alien convicted of an aggravated felony is deportable, and the term includes sexual abuse of a minor as defined in 8 U.S.C. § 1101(a)(43)(A). Vargas contested the validity of his guilty plea in state court but was informed that the appellate court lacked authority to address that issue. He argued that his conviction did not constitute an aggravated felony; however, the Immigration Judge (IJ) ruled that his conviction did qualify as such due to his actions involving sexual contact with a minor. The Board of Immigration Appeals (BIA) upheld this decision, emphasizing that the specifics of his charge confirmed it fell under the definition of "sexual abuse of a minor." Consequently, the Tenth Circuit Court affirmed the BIA's ruling, concluding that Vargas's conviction constituted an aggravated felony, thus validating the removal order.

Mr. Vargas contests his state-court conviction and its classification as an aggravated felony, raising two due-process claims. He argues that his attorney misled him by stating that a guilty plea for contributing to the delinquency of a minor would not lead to deportation, which he believes entitles him to withdraw his plea. Additionally, he claims that the acceptance of his guilty plea was unconstitutional since he maintained his innocence. However, these claims cannot be addressed in the current proceedings as they fall outside the permissible scope; a petitioner cannot challenge the validity of state convictions during deportation proceedings.

The document also clarifies that while his due-process claims are inadmissible, his argument regarding the classification of his offense as an aggravated felony is reviewable. Legislative changes, specifically the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the REAL ID Act of 2005, have impacted judicial review of removal orders. The REAL ID Act restored some jurisdiction, allowing for the review of constitutional claims or legal questions in aggravated-felony cases. Since Vargas’s challenge relates to a legal question regarding the characterization of his conviction, the court has the jurisdiction to review this aspect of his case.

The definition of "aggravated felony" under 8 U.S.C. 1101(a)(43)(A) includes "sexual abuse of a minor." Mr. Vargas contests the Board of Immigration Appeals' (BIA) designation of his conviction as such but does not dispute the BIA's definition, which is based on 18 U.S.C. 3509. This statute broadly defines sexual abuse, encompassing various forms of exploitation and coercion involving minors. Vargas's challenge centers on the BIA's methodology in determining whether his offense constituted sexual abuse, arguing that the BIA improperly relied on allegations in the charging document rather than strictly adhering to the statutory definition of contributing to the delinquency of a minor.

Vargas advocates for the "categorical approach" established in Taylor v. United States, which requires courts to evaluate whether a prior conviction aligns with a generic offense based solely on statutory definitions, not the facts of the case. This approach was applied in Singh v. Ashcroft to assess a conviction for "unlawful sexual contact" under Delaware law. In Taylor, the Supreme Court defined "burglary" in a way that necessitated adherence to generic definitions for sentence enhancements under the Armed Career Criminal Act (ACCA). The Court acknowledged that, in limited circumstances, courts could consider underlying facts if a jury had to find all elements of the generic crime.

Shepard v. United States further extended this categorical approach to cases involving guilty pleas, allowing courts to examine specific documents related to the plea to determine the nature of the prior conviction. This includes the charging document, plea agreements, or judicial records confirming the factual basis for the plea.

The Taylor/Shepard approach was applied to Mr. Vargas's case, resulting in the denial of relief without determining if Taylor and Shepard's constraints specifically apply to aggravated felony classifications under 8 U.S.C. 1101(a)(43)(A). Colorado's statute, C.R.S. 18-6-701, criminalizes inducing a child to violate any law, requiring the prosecution to prove a specific predicate offense. The appellate case of People v. Corpening emphasized the necessity for the jury to know which law the minor violated for a conviction of contributing to the delinquency of a minor. This statute is broad, covering various offenses, and in cases of ambiguity, courts may refer to reliable judicial records to ascertain the nature of the underlying offense. In Mr. Vargas's instance, the charging document cited C.R.S. 18-3-404(1)(a), which pertains to unlawful sexual contact, defined as nonconsensual sexual contact. His conviction for encouraging a child to engage in such conduct qualifies as sexual abuse of a minor, categorizing it as an aggravated felony under 18 U.S.C. 3509(a)(8). The order of the Board of Immigration Appeals (BIA) was affirmed.