NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PHONESAVANH NAKHOKKONG, No. 18-70936 Petitioner, Agency No. A023-897-181 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 13, 2021 Pasadena, California Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,** District Judge. Phonesavanh Nakhokkong petitions for review of the Board of Immigration Appeals’ (BIA) decision affirming the immigration judge’s order removing him to Laos, based on Nakhokkong’s conviction of sexual conduct with a minor under 15 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Page 2 of 4 years of age in violation of Arizona Revised Statutes §§ 13-705, 13-1405. Because Nakhokkong’s conviction categorically qualifies as a “crime of child abuse,” see 8 U.S.C. § 1227(a)(2)(E)(i), we deny the petition. The BIA’s generic definition of a crime of child abuse includes “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being.” Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008). We deferred to this definition in Jimenez-Juarez v. Holder, 635 F.3d 1169, 1171 (9th Cir. 2011). Nakhokkong’s offense of conviction qualifies as a crime of child abuse under this definition. He pleaded guilty to an offense that required proof of the following elements: (1) the defendant “intentionally or knowingly engag[ed] in sexual intercourse or oral sexual contact” with a minor under 15 years of age and (2) the defendant was at least 18 years of age or was tried as an adult. Ariz. Rev. Stat. §§ 13-705(F), (Q)(1); 13-1405(A)–(B). The offense satisfies the mens rea requirement of Velazquez-Herrera’s definition because it requires an intentional or knowing act. And the offense satisfies the actus reus requirement because sexual intercourse or oral sexual contact between an adult who is at least 18 years of age and a minor who is under 15 years of age “categorically constitutes maltreatment Page 3 of 4 of a child and impairs the child’s mental well-being.” Jimenez-Juarez, 635 F.3d at 1171 n.2. Nakhokkong contends that his offense of conviction is overbroad because the defendant need not be 18 years of age or older; in theory at least, the defendant could have been younger than 18 but “tried as an adult.” Ariz. Rev. Stat. § 13- 705(F). That the defendant is under 18, however, does not necessarily mean that his conviction under §§ 13-705 and 13-1405 falls outside the generic offense. Instead, even for a defendant under 18, the conduct supporting the conviction could constitute “maltreatment of a child” in some circumstances and therefore fit the generic definition of a “crime of child abuse.” For an …
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