Rangel-Perez v. Holder
816 F.3d 591
10th Cir.2016Background
- Petitioner Fabian Rangel‑Perez, a Mexican citizen, seeks cancellation of removal but is statutorily ineligible if he has an "aggravated felony" conviction under 8 U.S.C. § 1101(a)(43).
- The BIA concluded Rangel‑Perez’s prior Utah conviction for unlawful sexual activity with a minor (Utah Code § 76‑5‑401) was an INA "aggravated felony" as "sexual abuse of a minor."
- Utah § 76‑5‑401 criminalizes sexual intercourse and certain sexual acts with a 14–15‑year‑old; it treats defendants <4 years older as eligible for mitigation to a misdemeanor. Rangel‑Perez pleaded guilty as a 19‑year‑old to a misdemeanor for sex with a 15‑year‑old.
- The Utah Supreme Court has interpreted the statute to permit strict liability (no mens rea required) for intercourse with a minor under that provision.
- The Tenth Circuit applied the categorical approach (Moncrieffe/Descamps) to compare the elements of Utah’s statute with the INA’s generic "sexual abuse of a minor" offense and addressed whether that generic offense requires a mens rea.
Issues
| Issue | Rangel‑Perez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the INA’s generic "sexual abuse of a minor" requires a mens rea element | The INA requires at least a "knowing" mens rea (and possibly a 4‑year age difference); Utah statute lacks mens rea so conviction is not an aggravated felony | The BIA and Government treated the INA category as not requiring any mens rea and urged deference to BIA precedent (Rodriguez‑Rodriguez) | The INA’s generic offense requires at least a "knowing" mens rea; court rejects Chevron deference to Rodriguez‑Rodriguez on this issue and decides de novo |
| Whether Rodriguez‑Rodriguez/BIA precedent controls (warrants Chevron deference) | Not binding on the mens rea question because Rodriguez‑Rodriguez addressed scope of sex acts, not mens rea | BIA decision governs and warrants Chevron deference | Rodriguez‑Rodriguez did not resolve the mens rea issue and does not justify Chevron deference here |
| Appropriate source for the generic definition (federal statute vs. §3509 guide vs. state consensus) | Look to federal substantive criminal statutes (e.g., 18 U.S.C. §§ 2241/2243) not to procedural §3509 or inconsistent state statutes | Government relied on BIA’s guidance using §3509(a)(8) as persuasive | Court adopts substantive federal statutes as the appropriate analogue, not §3509 or an impossible state consensus |
| Whether Utah § 76‑5‑401 categorically matches the INA generic offense | Utah statute is strict liability (no mens rea); thus it criminalizes conduct broader than the INA generic offense | Government argued the conviction qualifies as "sexual abuse of a minor" for INA purposes | Because Utah statute requires no mens rea, it is not a categorical match; conviction is not an aggravated felony under INA |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (categorical approach governs comparison of state conviction to generic federal offense)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (distinguishing categorical and modified categorical approaches)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency deference framework)
- Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013) (look to substantive criminal definitions, not civil/procedural laws, when defining INA crime categories)
- Estrada‑Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (BIA’s Rodriguez‑Rodriguez did not provide a uniform definition of "sexual abuse of a minor")
- Carachuri‑Rosendo v. Holder, 560 U.S. 563 (2010) (aggravated‑felony consequences are severe; context for statutory construction)
- Staples v. United States, 511 U.S. 600 (1994) (presumption against reading criminal statutes as imposing strict liability)