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    Carlos Franco v. Atty Gen USA, 3rd Cir. (2012)

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    The document is a court opinion regarding Carlos Andres Franco's petition for review of a removal order based on his conviction for endangering the welfare of a child. The Board of Immigration Appeals found that Franco's conviction constituted the aggravated felony of "sexual abuse of a minor" under immigration law. The court analyzes the definition of "sexual abuse of a minor" and applies it to the facts of Franco's case. Looking at Franco's indictment and plea colloquy, the court finds that Franco admitted to touching the breasts and vagina of a girl under 13 years old, when he was over 4 years older, for sexual gratification. The court thus concludes that Franco's conduct fits within the definition of "sexual abuse

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    Carlos Franco v. Atty Gen USA, 3rd Cir. (2012)

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    The document is a court opinion regarding Carlos Andres Franco's petition for review of a removal order based on his conviction for endangering the welfare of a child. The Board of Immigration Appeals found that Franco's conviction constituted the aggravated felony of "sexual abuse of a minor" under immigration law. The court analyzes the definition of "sexual abuse of a minor" and applies it to the facts of Franco's case. Looking at Franco's indictment and plea colloquy, the court finds that Franco admitted to touching the breasts and vagina of a girl under 13 years old, when he was over 4 years older, for sexual gratification. The court thus concludes that Franco's conduct fits within the definition of "sexual abuse

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    Filed: 2012-02-23 Precedential Status: Non-Precedential Docket: 11-2230

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    The document is a court opinion regarding Carlos Andres Franco's petition for review of a removal order based on his conviction for endangering the welfare of a child. The Board of Immigration Appeals found that Franco's conviction constituted the aggravated felony of "sexual abuse of a minor" under immigration law. The court analyzes the definition of "sexual abuse of a minor" and applies it to the facts of Franco's case. Looking at Franco's indictment and plea colloquy, the court finds that Franco admitted to touching the breasts and vagina of a girl under 13 years old, when he was over 4 years older, for sexual gratification. The court thus concludes that Franco's conduct fits within the definition of "sexual abuse

    Copyright:

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    15 views6 pages

    Carlos Franco v. Atty Gen USA, 3rd Cir. (2012)

    Uploaded by

    Scribd Government Docs
    The document is a court opinion regarding Carlos Andres Franco's petition for review of a removal order based on his conviction for endangering the welfare of a child. The Board of Immigration Appeals found that Franco's conviction constituted the aggravated felony of "sexual abuse of a minor" under immigration law. The court analyzes the definition of "sexual abuse of a minor" and applies it to the facts of Franco's case. Looking at Franco's indictment and plea colloquy, the court finds that Franco admitted to touching the breasts and vagina of a girl under 13 years old, when he was over 4 years older, for sexual gratification. The court thus concludes that Franco's conduct fits within the definition of "sexual abuse

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    of 6

    NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS


    FOR THE THIRD CIRCUIT
    No. 11-2230
    CARLOS ANDRES FRANCO,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent.
    On Petition for Review of an Order of the Board of Immigration Appeals
    (Agency No. A. 044-464-077)
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    on February 7, 2012
    Before: SLOVITER and VANASKIE, Circuit Judges, and PADOVA,*
    Senior District Judge.
    (Filed: February 23, 2012)
    ____________
    OPINION OF THE COURT
    ____________
    PADOVA, Senior District Judge

    The Honorable John R. Padova, Senior District Judge for the United States District Court
    for the Eastern District of Pennsylvania, sitting by designation.

    Carlos Andres Franco (AFranco@), a native of Columbia, petitions for review of a final
    order of removal based on the determination of the Board of Immigration Appeals (ABIA@)
    that he committed an aggravated felony pursuant to 8 U.S.C. ' 1227(a)(2)(A)(iii)1 and 8
    U.S.C. ' 1101(a)(43)(A), which states that the term Aaggravated felony@ includes Asexual
    abuse of a minor.@ For the reasons that follow, we deny the petition for review.
    I.
    As we write exclusively for the benefit of the parties, we will forego a lengthy
    recitation of the facts. Franco is a native and citizen of Columbia, and a lawful resident of
    the United States. In June 2009, Franco pled guilty to endangering the welfare of a child
    under Section 2C:24-4(a) of the New Jersey Criminal Code, which provides, in relevant part,
    that anyone who Aengages in sexual conduct which would impair or debauch the morals of a
    child . . . under the age of 16 is guilty of a crime . . . .@ N.J. Stat. Ann. ' 2C:24-4(a). During
    his plea colloquy, Franco admitted that between January 31, 1995, and January 30, 1997, he
    touched the breasts or vagina of a girl under the age of 16. According to the indictment, the
    girl was under the age of 13 and Franco was more than four years older than she at the time
    of the touching. Franco was over 18 by January 30, 1997, although he stated during the Plea
    Colloquy that he was under 18 when the incident occurred.
    On August 17, 2010, the United States Department of Homeland Security (ADHS@)

    AAny alien who is convicted of an aggravated felony at any time after admission is
    deportable.@ 8 U.S.C. ' 1227(a)(2)(A)(iii).
    2

    issued Franco a Notice to Appear before an immigration judge to answer to the charge that he
    is subject to removal as an alien convicted of the aggravated felony of sexual abuse of a
    minor. Franco, represented by counsel, appeared and denied that he was removable. The
    Immigration Judge ruled that Franco=s conviction under N.J. Stat. Ann. ' 2C:24-4(a)
    constituted the aggravated felony of sexual abuse of a minor, and on November 23, 2010,
    ordered that he was removable. Franco appealed the Immigration Judge=s decision to the
    BIA, and on April 18, 2011, the BIA affirmed. Franco then filed a timely appeal to this
    Court.
    We have jurisdiction to hear this appeal pursuant to 8 U.S.C. ' 1252(a). See Stubbs v.
    Attorney Gen., 452 F.3d 251, 253 n.4 (3d Cir. 2006). Although we do not have jurisdiction
    to review a final order of removal against an alien found to have committed an aggravated
    felony, 8 U.S.C. ' 1252(a)(2)(C), Awe 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.@ Stubbs, 452 F.3d at 253 n.4 (citations omitted). AWe review de novo the
    legal question of whether [Franco=s] offense is an aggravated felony.@ Id. (citing Valansi v.
    Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002)).
    II.
    Our review of the BIA=s order of removal is a two-step process. See Restrepo v.
    Attorney Gen., 617 F.3d 787, 791 (3d Cir. 2010). First, we must determine the definition of
    Asexual abuse of a minor@ in 8 U.S.C. ' 1101(a)(43)(A). Id. Second, we determine whether

    Franco=s conduct falls within that definition, using either the categorical or modified
    categorical approach. Id. In Restrepo, we adopted 18 U.S.C. ' 3509(a) as a guidepost for the
    definition of Asexual abuse of a minor@ in 8 U.S.C. ' 1101(a)(43)(A). Id. at 796. Section
    3509(a) defines sexual abuse of a minor to include Athe employment, use, persuasion,
    inducement, enticement, or coercion of a child to engage in . . . sexually explicit conduct . . .
    .@ 18 U.S.C. ' 3509(a)(8). Sexually explicit conduct includes the intentional touching Aeither
    directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks
    of any person with the intent to . . . arouse or gratify sexual desire of any person.@ 18 U.S.C.
    ' 3509(a)(9)(A).
    In Stubbs, we applied the modified categorical approach to the review of a conviction
    under N.J. Stat. Ann. ' 2C:24-4(a), because this statute criminalizes conduct Awhich both
    may and may not involve sexual abuse of a minor.@ Stubbs, 452 F.3d at 255 (quotation
    omitted). Applying the modified categorical approach, we consider the indictment, guilty
    plea, and plea colloquy to determine whether the alien necessarily admitted to conduct that
    constitutes the particular aggravated felony at issue. See Thomas v. Attorney Gen., 625 F.3d
    134, 144 (3d Cir. 2010) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)). In
    Stubbs, we were unable to conclude that Stubbs= conviction constituted Asexual abuse of a
    minor@ under 8 U.S.C. ' 1101(a)(43)(A) because the charging instrument did not specifically
    describe Stubbs= conduct and there were no other details about the offense. Stubbs, 452 F.3d
    at 252 n.1, 255.

    The record in the instant case, in contrast, contains specific allegations and
    admissions which describe Franco=s conduct. The indictment accuses Franco of Acommitting
    an act or acts of sexual contact upon T.F., a child less than 13 years of age,@ when Franco
    was Aat least four years older than T.F.@ (App. 147.) At the plea colloquy, Franco pled guilty
    to count II of the indictment and admitted touching T.F. on her breasts or vagina for the
    purposes of sexual gratification. We conclude that this conduct falls within the definition of
    sexual abuse of a minor under 18 U.S.C. ' 3509(a)(8), and thus constitutes an aggravated
    felony under 8 U.S.C. ' 1101(a)(43)(A).
    Franco argues that this conduct does not constitute Asexual abuse of a minor@ because
    he was too close in age to the victim. However, the record before us belies Franco=s
    argument that he and the victim were close in age, as the indictment states that the victim was
    under the age of 13 and that Franco was more than four years older than she when the sexual
    contact occurred. Accordingly, we conclude that Franco=s conduct is not excluded from the
    definition of Asexual abuse of a minor@ based on his and the victim=s ages.2

    The sources on which Franco relies are inapposite. In Estrada-Espinoza v. Mukasey, the
    Ninth Circuit excluded conduct from the definition of Asexual abuse of a minor@ because the
    victim was either 15 or 16, relying heavily on a survey of state laws that set the age of
    consent at 16. 546 F.3d 1147, 1154-55, 1156 n.4 (9th Cir. 2008) (en banc). 18 U.S.C. '
    2243, which defines the federal crime of sexual abuse of a minor, excludes conduct from
    being sexual abuse when one party is between 12 and 16 years of age and less than four years
    younger than the other party. 18 U.S.C. ' 2243(a). The record in the instant case shows that
    Franco=s victim was under the age of 13 and more than four years younger than Franco.
    5

    III.
    We have considered all other arguments made by the parties on appeal, and conclude
    that no further discussion is necessary. For the foregoing reasons, we conclude that Franco=s
    state conviction constituted the aggravated felony of Asexual abuse of a minor@ in 8 U.S.C. '
    1101(a)(43)(A), and we deny the petition for review.

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