Johel Contreras v. Eric Holder, Jr.
2014 U.S. App. LEXIS 10619
5th Cir.2014Background
- Johel Amilcar Contreras, an El Salvador national, entered the U.S. in 1998 without admission and applied for NACARA special-rule cancellation of removal.
- USCIS referred his application after finding adverse criminal/integrity issues; the government asserted a 1992 Virginia conviction (Va. Code § 18.2-63) was an INA "aggravated felony" as "sexual abuse of a minor."
- The IJ held the Virginia conviction was sexual abuse of a minor and ordered removal; Contreras appealed to the BIA arguing the offense was not an aggravated felony.
- The BIA affirmed, reasoning the conduct criminalized by the Virginia statute (including intercourse and other sexual acts with a 13–14 year-old) falls within the BIA’s definition of sexual abuse of a minor; it did not address the separate "crime of violence" argument.
- On review, the Fifth Circuit applied the categorical/modified categorical approaches, examined the elements of Contreras’s conviction (Class 4 felony: adult committed carnal knowledge of a 13–14 year-old, without force), and concluded it necessarily constitutes sexual abuse of a minor under the INA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Contreras’s 1992 Va. conviction is an INA "aggravated felony" as "sexual abuse of a minor" | Contreras: statute lacks mens rea/age-knowledge element, covers consensual close-age conduct and non-forceful acts so it is broader than generic sexual abuse of a minor | Govt/BIA: statute criminalizes sexual acts against 13–14 year-olds that fall within sexual exploitation/abuse; BIA definition supports categorization as sexual abuse of a minor | Held: Conviction (adult carnal knowledge of 13–14 yo) necessarily meets generic sexual abuse of a minor and is an aggravated felony; petition denied |
| Whether to defer to BIA’s definition of "sexual abuse of a minor" | Contreras: BIA’s cross-statutory definitional method conflicts with Fifth Circuit’s plain-meaning approach and Chevron step-two is inappropriate | BIA/Govt: BIA’s interpretation is permissible and consistent with congressional intent to bar sexually abusive aliens from relief | Held: Court noted Chevron deference generally applies but, even applying the Fifth Circuit’s plain-meaning method, the conviction still qualifies as sexual abuse of a minor |
| Proper definitional method for "sexual abuse of a minor" under INA | Contreras: prefer comparison to federal statutes and narrower constructions | Govt/BIA: adopt BIA’s broad definition (e.g., 18 U.S.C. § 3509(a)(8)) | Held: Court applied Fifth Circuit’s plain-meaning approach (elements: child, sexual conduct, abusive) and found the Virginia offense meets those elements |
| Whether modified categorical approach applies to Va. § 18.2-63 | Contreras: statute divisible; some variants might not be generic sexual abuse | Govt: conviction records show Contreras pleaded to the adult-based Class 4 felony | Held: § 18.2-63 is divisible; modified categorical approach used and plea/indictment established elements matching sexual abuse of a minor |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (administrative deference framework)
- Descamps v. United States, 133 S. Ct. 2276 (limits modified categorical approach to divisible statutes)
- Taylor v. United States, 495 U.S. 575 (categorical approach for generic offenses)
- Shepard v. United States, 544 U.S. 13 (permissible documents for modified categorical analysis)
- United States v. Rodriguez, 711 F.3d 541 (en banc Fifth Circuit plain-meaning method for undefined offense categories)
- United States v. Zavala-Sustaita, 214 F.3d 601 (sexual conduct definitions and sexual abuse may include non-contact or psychological harm)