Mercado v. Attorney General of the United States

250 F. App'x 515
CourtCourt of Appeals for the Third Circuit
DecidedOctober 11, 2007
DocketNo. 06-2801
StatusPublished
Cited by4 cases

This text of 250 F. App'x 515 (Mercado v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercado v. Attorney General of the United States, 250 F. App'x 515 (3d Cir. 2007).

Opinion

OPINION OF THE COURT

RENDELL, Circuit Judge.

Alberto Mercado (“Mercado”), a native of the Phillippines, petitions for review of a final order of removal based on the determination of the Board of Immigration Appeals (“BIA”) that he committed an aggravated- felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable ....”) and 8 U.S.C. § 1101(a)(43)(A) (“ ‘[Aggravated felony means ... sexual abuse of a minor .... ”). Mercado argues that his conviction for “endangering the welfare of a child” under N.J. Stat. Ann. § 2C:24-4(a) does not constitute “sexual abuse of a minor.” We disagree. Accordingly, pursuant to 8 U.S.C. § 1252(a)(2)(C),1 we will deny the petition for review.

I. Background

We have jurisdiction to hear this appeal pursuant to 8 U.S.C. § 1252(a), as amended by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231. See Stubbs v. Attorney Gen., 452 F.3d 251, 253 n. 4 (3d Cir.2006). Further, “we have always had jurisdiction to determine our own jurisdiction by engaging in an analysis of whether an alien was convicted of a non-reviewable aggravated felony.” Id. We review de novo the legal question of whether Mercado’s offense is an aggravated felony. Id. Because we write primarily for the benefit of the parties, we will forgo a lengthy recitation of the facts.

Mercado was admitted to the United States in 1992 as a lawful permanent resident. In 1996, Mercado pled guilty in New Jersey Superior Court to a charge of [517]*517Endangering the Welfare of a Child in the Third Degree, in violation of N.J. Stat. Ann. § 2C:24-4(a), which states:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S. 9:6-1, R.S. 9:6-3 and P.L.1974, c. 119, § 1 (C. 9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

N.J.S.A. § 2C:24-4(a).

On September 29, 2004, the Immigration and Customs Enforcement Agency served Mercado with a notice to appear, charging him as removable for having been convicted of an aggravated felony: sexual abuse of a minor. Mercado did not dispute the factual allegations, but objected to the charge that he had been convicted of an aggravated felony. After several hearings before an Immigration Judge (“IJ”), the IJ issued a seven-page decision finding that Mercado’s conviction under N.J. Stat. Ann. § 2C:24-4(a) constituted an aggravated felony. As such, Mercado was ordered removed. Mercado appealed the decision to the BIA, and on May 12, 2006, the Board affirmed. Mercado then filed a timely appeal to this Court.

II. Discussion

On June 29, 2006, after the BIA affirmed the IJ’s removal order in this case, but before appellate briefing began, our Court had occasion to address the very question now before it: Does a conviction for “endangering the welfare of a child” under N.J. Stat. Ann. § 2C:24-4(a) constitute “sexual abuse of a minor” and thus an aggravated felony under the Immigration and Nationality Act (“INA”)? In Stubbs v. Attorney General, 452 F.3d 251, 256 (3d Cir.2006), we held that — based on the record before us — the petitioner’s conviction did not constitute an aggravated felony for INA purposes. Based on the record before us in this case, however, Stubbs compels the opposite conclusion.

In Stubbs, we reviewed the text of N.J. Stat. Ann. § 2C:24-4(a), determined that the statute is divisible, and concluded that it was therefore appropriate to consider the particular facts underlying the petitioner’s conviction in assessing whether he had been convicted of an aggravated felony. Section 2C:24-4(a) “provides for conviction of a person who either (a) ‘engages in sexual conduct which would impair or debauch the morals of the child’ or (b) ‘causes the child harm that would make the child an abused or neglected child as defined in [state protective-welfare statutes].’ ” Id. at 254. Looking to the charging instrument in Stubbs, we first found that the petitioner had been convicted under the prong of section 2C:24-4 that prohibits “engaging] in sexual conduct which would impair or debauch the morals of the child.” Id. at 255. We then examined the record for evidence that the petitioner’s conduct constituted “sexual abuse of a minor,” as defined by the BIA,2 and found none. Id. The charging instrument tracked the language of the statute of conviction and stated only that the petitioner was charged with “engaging] in sexual conduct which would impair or debauch the morals of a child under the age of [518]*518sixteen.” Id. We concluded that this was not enough:

The BIA’s definition of “sexual abuse of a minor” requires that a past act with a child actually occurred, while the New Jersey statute of conviction does not necessarily require that an act with a child took place. Under § 3509(a)(8), a conviction will lie only when there has been, for example, coercion or enticement of a child. In contrast to the New Jersey statute, it is not enough under § 3509(a)(8) that a person engaged in conduct that would coerce or entice a child (whatever that means); the enticement or coercion must have occurred.

Id. at 256. Thus, we “c[ould] not say with assuredness” that the petitioner’s conviction under section 2C:24-4(a) constituted “sexual abuse of a minor,” as defined by the BIA. Id.

In this case, however, we can say with assuredness that Mercado’s conviction constituted “sexual abuse of a minor.” Looking to the charging instrument, plea colloquy, and “explicit factual findings by the trial judge” — as we are permitted to do under, inter alia, Alaka v. Attorney General, 456 F.3d 88, 106 (3d Cir.2006) — it is clear that Mercado had sexual intercourse with a minor and thus, did “use ... a child to engage in ... sexually explicit conduct.” See 18 U.S.C. § 3509(a)(8); see also 18 U.S.C. § 3509(a)(9)(A) (defining “sexually explicit conduct” to include, inter alia, actual or simulated intercourse).

First, Mercado’s indictment states in relevant part:

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Related

State v. Telford
22 A.3d 43 (New Jersey Superior Court App Division, 2011)
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376 F. App'x 225 (Third Circuit, 2010)

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Bluebook (online)
250 F. App'x 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercado-v-attorney-general-of-the-united-states-ca3-2007.