from the Board of Immigration Appeals (Petition for Review)
E. Hong of Boston College Law School, Newton, Massachusetts,
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.,
BRISCOE, KELLY, and BACHARACH, Circuit Judges.
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
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.
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).
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.
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).
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 ...