United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-2595 ___________________________ Chong Toua Vue Petitioner v. William P. Barr, Attorney General of the United States Respondent ------------------------------ Immigrant Law Center of Minnesota; Immigrant Legal Resource Center; National Immigration Project of the National Lawyers Guild Amici on Behalf of Petitioner ___________________________ No. 18-3671 ___________________________ Chong Toua Vue Petitioner v. William P. Barr, Attorney General of the United States Respondent ------------------------------ Immigrant Law Center of Minnesota; Immigrant Legal Resource Center; National Immigration Project of the National Lawyers Guild Amici on Behalf of Petitioner ____________ Petitions for Review of an Order of the Board of Immigration Appeals ____________ Submitted: October 18, 2019 Filed: March 27, 2020 ____________ Before LOKEN, SHEPHERD, and STRAS, Circuit Judges. ____________ STRAS, Circuit Judge. Through two petitions for review, Chong Toua Vue asks us to decide whether the Board of Immigration Appeals misinterpreted a recent Supreme Court decision when it refused to reopen his case. The decision is Esquivel–Quintana v. Sessions, 137 S. Ct. 1562 (2017), and Vue believes it means that he is no longer removable. We deny both petitions for review because, despite his procedural arguments to the contrary, the Board did not have to give him another try. I. Vue is a citizen of Laos who came to the United States as a refugee in 1990 and later became a lawful permanent resident. In 2002, he pleaded guilty to hiring a person “under the age of 18 years but at least 16 years to engage in sexual penetration or sexual contact.” Minn. Stat. § 609.324, subd. 1(c)(2). After he pleaded guilty, the Department of Homeland Security charged him as removable for committing an “aggravated felony”: “sexual abuse of a minor.” See 8 U.S.C. -2- § 1101(a)(43)(A). In 2005, an immigration judge agreed that he was removable but decided that he could not be removed to Laos because he would likely be persecuted there. See id. § 1231(b)(3); see also Gumaneh v. Mukasey, 535 F.3d 785, 788 (8th Cir. 2008) (discussing the remedy of “withholding of removal”). He remains in the United States today. Twelve years later, in 2017, Vue asked the Board to reopen those proceedings under two separate provisions. The first is a regulation, 8 C.F.R. § 1003.2, which gives the Board the discretion to reopen proceedings “on its own motion.” The second is a statute, 8 U.S.C. § 1229a(c)(7), which gives aliens the right to file one motion to reopen within 90 days of a final order of removal. See id. § 1229a(c)(7)(C)(i). Under each provision, Vue’s theory has been that Esquivel–Quintana narrowed what crimes qualify as “sexual abuse of a minor.” For statutory-rape offenses depending solely on a victim’s age, Esquivel–Quintana limits “sexual abuse of a minor” to only those crimes requiring the victim to be “younger than 16.” 137 S. Ct. at 1568. Vue believes this age cutoff is universal, meaning that his own solicitation-of-prostitution offense, which did not involve a victim under age 16, would not qualify as “sexual ...
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