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Bedolla-Zarate v. Sessions

United States Court of Appeals, Tenth Circuit

June 18, 2018

AZAEL BEDOLLA-ZARATE, Petitioner,
v.
JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent.

          Appeal from the Board of Immigration Appeals (Petition for Review)

          Kari E. Hong of Boston College Law School, Newton, Massachusetts, for Petitioner.

          Matthew B. George, (Chad A. Readler, Acting Assistant Attorney General, and Douglas E. Ginbsurg, Assistant Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, on the brief), Washington, D.C., for Respondent.

          Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

          KELLY, CIRCUIT JUDGE.

         Petitioner-Appellant Azael Bedolla-Zarate, a native and citizen of Mexico, petitions for review of a Department of Homeland Security (DHS) Final Administrative Removal Order (FARO) based upon his having been convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii). Mr. Bedolla-Zarate was convicted of third-degree sexual abuse of a minor in Wyoming state court in September 2016. He contends that his conviction does not qualify as an aggravated felony. Under the Immigration and Nationality Act (INA), we have jurisdiction to review final orders of removal, 8 U.S.C. § 1252(a)(1), and deny review.[1]

         Background

         Mr. Bedolla-Zarate was born in Mexico and brought to the United States without authorization in 1997 when he was two years old. He remained in the United States under the Deferred Action for Childhood Arrivals (DACA) policy.

         In April 2017, DHS served Mr. Bedolla-Zarate with a Notice of Intent to Issue a FARO based on the Wyoming conviction. FAROs permit expedited removal proceedings that do not include an immigration judge (IJ) or the Board of Immigration Appeals (BIA). DHS can issue a FARO (and therefore institute expedited removal proceedings) when an alien is convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii); see Aguilar v. Napolitano, 700 F.3d 1238, 1240 (10th Cir. 2012). Sexual abuse of a minor is classified as an aggravated felony. 8 U.S.C. § 1101(a)(43)(A).

         Although Mr. Bedolla-Zarate argued that a FARO was improper because his state conviction was not an aggravated felony under the INA, DHS disagreed and issued the FARO on May 1, 2017.

         Discussion

         Mr. Bedolla-Zarate contends that DHS erred by placing him into expedited removal proceedings because (1) he was not actually "convicted" under § 1101(a)(48)(A), and even if so, (2) his conviction did not constitute an aggravated felony under the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), because sexual abuse of a minor within § 1101(a)(43)(A) has a knowledge mens rea that extends to the victim's age and includes an element of "actual abuse." Our review is de novo. Rangel-Perez v. Lynch, 816 F.3d 591, 601 (10th Cir. 2016).

         a. Conviction

         Mr. Bedolla-Zarate argues that there is not clear and convincing evidence that he was convicted because there is ambiguity as to whether he pled guilty to the charge. "It is the Government['s] burden to establish, by clear and convincing evidence, that the noncitizen has a prior conviction that warrants his removal." Lucio-Rayos v. Sessions, 875 F.3d 573, 583 (10th Cir. 2017). Section 1101(a)(48)(A) defines "conviction" as, among other things, when an alien (i) "has entered a plea of guilty . . . or has admitted sufficient facts to warrant a finding of guilty, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the ...


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