*1 1147 288(a) two elements: no matter its form. has Black’s Law Dictio- Section (a) touching underage of an child’s nary 10. (b) People v.
body
with a sexual intent.
434,
Martinez,
Cal.Rptr.2d
11
45
Cal.4th
IV.
(1995).
1037,
905,
1042-1043
903 P.2d
appellant’s
We therefore
conclude
law,
charac
under California
conviction under California Penal Code
cir
touching, though pеrhaps
ter
288(a) qualified
Section
as a conviction for
intent,
prove
is
cumstantially relevant to
“sexual abuse of a minor” under 8 U.S.C.
Martinez,
immaterial.
45 Cal.
otherwise
1101(a)(43)(A),
required
imposi-
905,
288(a) aby person can be violated who child, if
does not himself touch the victim intent, person, requisite with touch himself.
coerces the child to Imler, 1178, 1182, Cal.App.4th 9
People Cal.Rptr.2d (Cal.App. Dist. 1992).4 Miguel Agustin LEYVA- 288(a)
The conduct reached Section LICEA, Petitioner, common, indisputably falls within the ev eryday meanings of the words “sexual” AND IMMIGRATION Moreover, expansive
and “minor.” SERVICE, 288(a) NATURALIZATION persuade reach of does not Respondent. punish that it us does not “abuse.” The young gratification use of children for the of sexual desires constitutes an abuse. We
reject the notion that the defendant Unitеd States Court of young Imler case did not “abuse” his vic tim, Congress aggra or that intended the Submitted Nov. 1996.*
vated law to excuse an individual preys upon un young who child tоo Decided 1999. derstand the nature of his advances. See
Lopez, Cal.Rptr.2d at 965 P.2d (Cal.
717-718 Pen.Code violated “innocently touching
even where is received”).
warmly young The use of chil objects gratification
dren as of sexual
corrupt, improper, contrary good Dictionary 10
order. Black’s Law “abuse”);
ed.1979)(defining Webster’s Dictionary
Third New International
(1976)(same). maltreatment, It constitutes Imler, telephoned require contact between рerpetrator had statute does not young boy and told him that if he did not perpetrator and victim. penis, disrobe and touch his he would never * unanimously panel finds this case suitable again. see his father The California Court of argument. See Fed. for decision without oral Appeal upheld attempted a conviction for vio- 34(a)(2). R.App. P. 288(a), theory lation of Section on the that the *2 Bracamonte, Phoenix, Arizona,
Jose A. petitioner. for Mullane, Hugh G. Office Department of Litigation, Unitеd States Justice, D.C., respondent. Washington, FLETCHER, Before: TASHIMA, Judges. Circuit FLETCHER; Opinion by Judge by Judge FARRIS. Dissent FLETCHER, Judge: Leyva-Licea, Miguel Agustín Petitioner Mexico, court to petitions citizеn of H49 review a decision of the Immigra- a controlled substance violation. The IJ (BIA) made no finding finding tion as to state convic- whether Leyva- Licea wаs also for having tion for com- possess marijuana solicitation to mitted an aggravated felony. sale to be a offense. We for review and reverse Leyva-Licea appealed to the BIA. The *3 the decision of the BIA. BIA that stated “[t]he issue on appeal the whether offense of sоlicitation aof narcotic under Arizona law is a viola- I. tion of relating a law to a controlled sub- Leyva-Licea was convicted in Arizona stаnce within the meaning of section Superior Court for solicitation possess to 241(a)(2)(B)® of the Immigration and Na- marijuana for sale in violation of Ariz.Rev. tiоnality Beltran, Act.” Citing the BIA 13-1002(A) 13-3405(A)(2)(B)(5). §§ Stat. & held that alone, it was. On that basis He was sentenced to prison six months in BIA Leyva-Licea’s dismissed appeal. and years probаtion. three of Immi- petition This timely review followed. gration (INS) and Naturalization Service II. subsequently Leyva-Licea served with an Order to Show alleging that Cause he was BIA After the issued its decision in 241(a)(2)(B)® deportable § of the case, we held Coronado-Durazo v. (INA) Immigration Nationality INS, and Cir.1997), having been of generic convicted a crime Arizona’s related to solicitation statute is not a law substance, “relating a controlled to controlled substance” also under and that violation of 241(a)(2)(A)(iii) law § is not a of the INA for having deportable 241(a)(2)(B)® § offense under been convicted of an aggravated felony. INA, of thе even when the underlying 1251(a)(2)(B)® § & solicited conduct is a narcotics violation. (a)(2)(A)(iii). Both allegations referred to See id. at 1325-26. Coronado-Durazo Leyva-Licea’s Arizona solicitation convic- here, controls our treatment of the issue tion. compels our Leyva- conclusion that IJ, before the hearing Leyva- Licea’s Arizona conviction for solicitation Licea conceded that he had been convicted possess to marijuana for sale is not a of the contended, solicitation offense. He deportable 241(a)(2)(B)® § offense under however, that Arizona’s solicitation оf the INA. statute was not a “relating law ato con- However, the Order to Show Cause 241(a)(2)(B)® § trolled substance” under against Leyva-Licea issued alleged two INA, of the and that he therefore was not grounds of deportability: of a violation law deportable under that section. The IJ dis- substance, relating to a controlled agreed: “Respondent through counsel ad- commission of an aggravated felony. Ley mitted the allegations denied the deportаble va-Licea would still be if his charges. in view of the decision Arizona conviction were a conviction for an by the 241(a)(2)(A)(iii) aggravated felony (Int. Matter 3179), Beltran Dec. of of the INA. If he were on that charges Beltran, are sustained.” ground, jurisdiction then we would lack to BIA held that a conviction for solicitаtion review final order issued ge- narcotics under Arizona’s against him. See Duldulao neric solicitation statute was a conviction (9th Cir.1996) F.3d (construing relating to а controlled substance. and Effective Antiterrorism in citing Beltran the Leyva- IJ focused on Death Penalty Act of Pub.L. No. Licea’s deportability 104-132,110 (AEDPA)).1 for having committed Stat. Illegal Immigration 104-208, (IIRI- Reform and Immi- No. Pub.L. 110 Stat. 3009 grant RA), Responsibility superceded Act of C. immigration-relat- Division AEDPA’s solicita Leyva-Licea’s III.
Whether felo cоnstitutes tion offense reasons, we foregoing For of law pure question INA is a ny under and reverse Coronado- de novo. See we review BIA’s determination (exercising de Durazo, at 1324 deportable offense ais Arizona conviction question the related over novo 241(a)(2)(B)® of the INA. We a con offеnse constituted whether such is not that his conviction further violation). The term 241(a)(2)(A)(iii) trolled substance offense at 8 U.S.C. defined felony” is BIA for “aggravated remand tо the INA. We traf any “drug 1101(a)(43)(B) with this decision. consistent proceedings 924(c) (as in section ficking crime *4 GRANTED. PETITION violations 18),” applies to Title 924(c), in law. state federal аnd dissenting: Judge, crime” to trafficking turn, “drug defines majority Corona with the disagreed I felony punishable any (9th v. do-Durazo Act, 21 U.S.C. Substances Controlled Cir.1997) expressed my dis for reasons 924(c)(2). See U.S.C. 801 et seq. er majority expands now The sent. so in order dissent. respectfully I ruling. roneous aggravat an constitute licitation offense (1) punishable it must be felony, ed (2) Act, and Substances
the Controlled States felony. United as a
qualify
Garcia-Olmedo, 112 F.3d
Cir.1997). Act Substances The Controlled individual, WELLINGTON, an Michael The solicitation. not mention
does Plaintiff-Appellant, conspiracy “to attempt does cover in this sub- any offense commit DIS COUNTY SCHOOL LYON not it does chapter,” U.S.C. but Subdivision; County Lyon TRICT, a Coronado-Durazo, we list solicitation. Trusteеs, a Lyon County Board of ge some' listed statute where held County Subdivision; Lyon Nat Lom others, the stat but omitted neric offenses I-X, individual; Defen mori, Does ex offensеs covered ute dants-Appellees. at 1325-26. listed. See pressly observing approach, by that Guided Act neither Substances Controlled Court United States any nor contains
mentions solicitation could even provision that catch-all broad solicitation, we cover be read to arguably 10, 1999. and Submitted Feb. Argued marijuana solicitation Filed sale is not 1101(a)(43)(B). Thus, Leyva- not ren conviction does Licea’s solicitation
der him 241(a)(2)(A)(iii)of the INA. date, governed this case is RA’s effective be- provisions. judicial ed cause final IIRIRA. order AEDPA not prior to IIRI- on June was entered