Opinion
No. 13-73487
03-18-2015
SERGIO REYES-ALVAREZ, AKA Sergio Alvarez, AKA Sergio Reyes Alvarez, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A079-375-811 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 10, 2014 San Francisco, California Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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, 314 P.3d 798, 800 (Cal. 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 denied. See Leiva-Perez v. Holder, 640 F.3d 962, 971 (9th Cir. 2011).
PETITION DENIED.