Bedolla-Zarate v. Sessions

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS June 18, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ AZAEL BEDOLLA-ZARATE, Petitioner, v. No. 17-9519 JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. _________________________________ Appeal from the Board of Immigration Appeals (Petition for Review) _________________________________ Kari E. Hong of Boston College Law School, Newton, Massachusetts, for Petitioner. Matthew B. George, (Chad A. Readler, Acting Assistant Attorney General, and Douglas E. Ginbsurg, Assistant Director, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, on the brief), Washington, D.C., for Respondent. _________________________________ Before BRISCOE, KELLY, and BACHARACH, Circuit Judges. _________________________________ KELLY, Circuit Judge. _________________________________ Petitioner-Appellant Azael Bedolla-Zarate, a native and citizen of Mexico, petitions for review of a Department of Homeland Security (DHS) Final Administrative Removal Order (FARO) based upon his having been convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii). Mr. Bedolla-Zarate was convicted of third-degree sexual abuse of a minor in Wyoming state court in September 2016. He contends that his conviction does not qualify as an aggravated felony. Under the Immigration and Nationality Act (INA), we have jurisdiction to review final orders of removal, 8 U.S.C. § 1252(a)(1), and deny review.1 Background Mr. Bedolla-Zarate was born in Mexico and brought to the United States without authorization in 1997 when he was two years old. He remained in the United States under the Deferred Action for Childhood Arrivals (DACA) policy. In April 2017, DHS served Mr. Bedolla-Zarate with a Notice of Intent to Issue a FARO based on the Wyoming conviction. FAROs permit expedited removal proceedings that do not include an immigration judge (IJ) or the Board of Immigration Appeals (BIA). DHS can issue a FARO (and therefore institute expedited removal proceedings) when an alien is convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii); see Aguilar v. Napolitano, 700 F.3d 1238, 1240 (10th Cir. 2012). Sexual abuse of a minor is classified as an aggravated felony. 8 U.S.C. § 1101(a)(43)(A). 1 After DHS issued the FARO, Mr. Bedolla-Zarate initiated separate proceedings with DHS, requesting relief from deportation because of a reasonable fear of returning to his native county. On April 5, 2018, the BIA dismissed Mr. Bedolla-Zarate’s appeal of the IJ’s decision in those proceedings, thereby eliminating any need for this court to consider the government’s motion to dismiss or abate the appeal pending the outcome. We therefore deny the government’s motion as moot. 2 Although Mr. Bedolla-Zarate argued that a FARO was improper because his state conviction was not an aggravated felony under the INA, DHS disagreed and issued the FARO on May 1, 2017. Discussion Mr. Bedolla-Zarate contends that DHS erred by placing him into expedited removal proceedings because (1) he was not actually “convicted” under § 1101(a)(48)(A), and even if so, (2) his conviction did not constitute an aggravated felony under the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), because sexual abuse of a minor within § 1101(a)(43)(A) has a knowledge mens rea that extends to ...

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