Sergio Reyes-Alvarez v. Eric Holder, Jr.

Ninth Circuit

Sergio Reyes-Alvarez v. Eric Holder, Jr.

598 F. App'x 546

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 18, 2015

Docket13-73487

StatusUnpublished

This text of 598 F. App'x 546 (Sergio Reyes-Alvarez v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sergio Reyes-Alvarez v. Eric Holder, Jr., 598 F. App'x 546 (9th Cir. 2015).

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MEMORANDUM *

Petitioner Sergio Reyes-Alvarez (Reyes-Alvarez) petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal. Reyes-Alvarez contends that the BIA erred in concluding that his California conviction for lewd and lascivious acts upon a child aged 14 or 15 is categorically a conviction for a “crime of child abuse.”

Giving Chevron deference to the BIA’s definition of the federal generic offense of a crime of child abuse, Reyes-Alvarez’s California conviction is a categorical match. See Ceron v. Holder, 747 F.3d 773, 778 (9th Cir.2014) (en banc) (explaining that we defer to the BIA’s definition of a federal generic offense under “the Chevron framework if the decision is published or directly controlled by a published decision”).

The mens rea requirement of California Penal Code § 288(c)(1) fits within the federal generic definition because section 288(c)(1) punishes only “willful[ ]” acts, while the federal generic crime encompasses anything from “criminally negligent” to “intentional” acts. Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008) (defining “crime of child abuse broadly” as “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a [person under 18 years old] or that impairs [such a person’s] physical or mental well-being, including sexual abuse or exploitation”). Section 288(c)(1) also meets the actus reus requirement in the federal definition because a “lewd and lascivious act” upon a child necessarily involves “maltreatment” of the child. Id.; see also People v. Shockley, 58 Cal.4th 400, 165 Cal.Rptr.3d 497, 314 P.3d 798, 800 (2013) (noting that § 288 “assumes that young victims suffer profound harm whenever they are perceived and used as objects of sexual desire”).

As Reyes-Alvarez has not sought a stay of removal from the BIA and has not shown that a stay of removal is warranted pending a collateral challenge to his state court conviction, the request for a stay is *547 denied. See Leiva-Perez v. Holder, 640 F.3d 962, 971 (9th Cir.2011).

PETITION DENIED.

*

This disposition is not appropriate for publication and is.not precedent except as provided by 9 th Cir. R. 36-3.

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MEMORANDUM *

Petitioner Sergio Reyes-Alvarez (Reyes-Alvarez) petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal. Reyes-Alvarez contends that the BIA erred in concluding that his California conviction for lewd and lascivious acts upon a child aged 14 or 15 is categorically a conviction for a “crime of child abuse.”

Giving Chevron deference to the BIA’s definition of the federal generic offense of a crime of child abuse, Reyes-Alvarez’s California conviction is a categorical match. See Ceron v. Holder, 747 F.3d 773, 778 (9th Cir.2014) (en banc) (explaining that we defer to the BIA’s definition of a federal generic offense under “the Chevron framework if the decision is published or directly controlled by a published decision”).

The mens rea requirement of California Penal Code § 288(c)(1) fits within the federal generic definition because section 288(c)(1) punishes only “willful[ ]” acts, while the federal generic crime encompasses anything from “criminally negligent” to “intentional” acts. Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008) (defining “crime of child abuse broadly” as “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a [person under 18 years old] or that impairs [such a person’s] physical or mental well-being, including sexual abuse or exploitation”). Section 288(c)(1) also meets the actus reus requirement in the federal definition because a “lewd and lascivious act” upon a child necessarily involves “maltreatment” of the child. Id.; see also People v. Shockley, 58 Cal.4th 400, 165 Cal.Rptr.3d 497, 314 P.3d 798, 800 (2013) (noting that § 288 “assumes that young victims suffer profound harm whenever they are perceived and used as objects of sexual desire”).

As Reyes-Alvarez has not sought a stay of removal from the BIA and has not shown that a stay of removal is warranted pending a collateral challenge to his state court conviction, the request for a stay is *547 denied. See Leiva-Perez v. Holder, 640 F.3d 962, 971 (9th Cir.2011).

PETITION DENIED.

*

This disposition is not appropriate for publication and is.not precedent except as provided by 9 th Cir. R. 36-3.

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