Jose Lazalde-Zuniga v. Jefferson Sessions

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT

JUN 15 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JOSE CORNELIO LAZALDE-ZUNIGA, No. 16-70328 AKA Jose Cornelio Lasalde-Zuniga, AKA Jose Zuniga-Lazalde, Agency No. A074-316-693

Petitioner,

MEMORANDUM*

v.

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted June 12, 2018

San Francisco, California

Before: SCHROEDER, GOULD, and DIAZ,** Circuit Judges.

Jose Cornelio Lazalde-Zuniga (“Lazalde-Zuniga”) petitions for review of the denial by the Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”)

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Albert Diaz, United States Circuit Judge for the U.S.

Court of Appeals for the Fourth Circuit, sitting by designation.

(collectively, the “Agency”) of his application under 8 U.S.C. § 1229b(a) for cancellation of removal. The Agency denied his application upon a determination that he was removable, because his conviction under A.R.S. § 13-1405(A) was a categorical match to “a crime of child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i).

The BIA has interpreted “a crime of child abuse” to mean “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.” In re Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008).

The mens rea required under A.R.S. § 13-1405(A) meets the mens rea requirement of the federal definition, because the Arizona statute prohibits “intentionally or knowingly engaging in sexual intercourse or oral sexual contact with” a minor.

A.R.S. § 13-1405(A) also meets the actus reus requirement of the federal definition. The Arizona statute prohibits “sexual intercourse or oral sexual contact with any person who is under eighteen years of age,” A.R.S. § 13-1405(A), which “constitutes maltreatment of a child” and “impairs a child’s . . . mental well-being.” In re Velazquez-Herrera, 24 I. & N. Dec. at 512; see also Jimenez- Juarez v. Holder, 635 F.3d 1169, 1171 & n.2 (9th Cir. 2011).

3

The Arizona statute is therefore a categorical match to the federal crime of child abuse. Neither the BIA’s definition, nor our case law requires knowledge of the age of the victim. See Jimenez-Juarez, 635 F.3d at 1171; In re Velazquez- Herrera, 24 I. & N. Dec. at 512.

Lazalde-Zuniga’s arguments concerning “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) and “a crime involving moral turpitude” under 8 U.S.C. § 1182(a)(2)(A)(i)(I) are irrelevant to whether Lazalde-Zuniga’s conviction is a match to the less stringent definition of “a crime of child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i). See, e.g., United States v. Martinez, 786 F.3d 1227, 1232–33 (9th Cir. 2015).

Petition DENIED.