[Copyrighted Material Omitted]
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Aaron Tarin (Skyler Anderson with him on the reply brief), Immigrant Defenders Law Group, PPLC, Taylorsville, Utah for Petitioner.
Matthew A. Spurlock (Joyce R. Branda, Acting Assistant Attorney General, Daniel E. Goldman, Senior Litigation Counsel, and Mona Maria Yousif, Trial Attorney, on the briefs), United States Department of Justice, Washington, District of Columbia, for Respondent.
Before KELLY, EBEL, and LUCERO, Circuit Judges.
EBEL, Circuit Judge.
Petitioner Fabian Rangel-Perez challenges the Board of Immigration Appeals' (" BIA" ) characterization of his Utah misdemeanor conviction as an " aggravated felony" under the Immigration and Nationality Act (" INA" ). The BIA concluded that Rangel-Perez's Utah conviction for unlawful sexual activity with a minor fell within the INA's category of " aggravated" felonies that includes " sexual abuse of a minor" offenses. Rangel-Perez contends that his prior Utah conviction is not an " aggravated felony" under the INA because the INA's generic " sexual abuse of a minor" offense requires proof of both mens rea and a four-year age differential between the victim and the perpetrator, yet neither is an element of the Utah statute under which he was convicted. We agree with Rangel-Perez that the INA's category of " aggravated" felonies for " sexual abuse of a minor" includes only offenses that require proof of at least a " knowing" mens rea or scienter. We, therefore, conclude that Rangel-Perez's Utah conviction is not a " sexual abuse of a minor" offense under the INA. Thus, we reverse the BIA's decision to treat Rangel-Perez's prior conviction as an " aggravated felony" and we remand his case for further proceedings. Doing so, we need not decide whether the INA's generic " sexual abuse of a minor" offense also requires proof of a four-year age differential.
Rangel-Perez, a Mexican citizen, concedes that he is subject to removal from the United States because, as a child, his parents brought him to this country illegally. Nevertheless, Rangel-Perez asks the Attorney General to exercise her discretion and cancel his removal, see 8 U.S.C. § 1229b(b)(1). Under the INA, Rangel-Perez is not eligible for this discretionary relief from removal if he has been convicted of an " aggravated felony." Id. § § 1227(a)(2)(A)(iii), 1229b(b)(1)(C).
The INA defines aggravated felonies in categories, id. § 1101(a)(43); the specific category at issue here includes state and federal offenses for " sexual abuse of a minor," id. § 1101(a)(43)(A).
The BIA determined that Rangel-Perez had a prior conviction for such a disqualifying " aggravated felony" because he was previously convicted of the misdemeanor offense of " unlawful sexual activity with a minor" in violation of Utah Code § 76-5-401. That state statute provides:
(1) For purposes of this section " minor" is a person who is 14 years of age or older, but younger than 16 years of age, at the time the sexual activity described in this section occurred.
(2) A person commits unlawful sexual activity with a minor if, under circumstances not amounting to rape, in violation of Section 76-5-402, object rape, in violation of Section 76-5-402.2, forcible sodomy, in violation of Section 76-5-403, or aggravated sexual assault, in violation of Section 76-5-405, the actor:
(a) has sexual intercourse with the minor;
(b) engages in any sexual act with the minor involving the genitals of one person and the mouth or anus of another person, regardless of the sex of either participant; or
(c) causes the penetration, however slight, of the genital or anal opening of the minor by any foreign object, substance, instrument, or device, including a part of the human body, with the intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, regardless of the sex of any participant.
(3) A violation of Subsection (2) is a third degree felony unless the defendant establishes by a preponderance of the evidence the mitigating factor that the defendant is less than four years older than the minor at the time the sexual activity occurred, in which case it is a class B misdemeanor.
Rangel-Perez, at age nineteen, pled guilty to a misdemeanor violation of this Utah statute, and served two days in jail and one year of probation. The Government does not dispute that this misdemeanor conviction was based on Rangel-Perez having sex with his long-time girlfriend, who later became the mother of his child. Based on information in the administrative record, Rangel-Perez ...