Juan Elias ESTRADA-ESPINOZA, Plaintiff-Appellee, v. Alberto R. GONZALES, Attorney General, Defendant-Appellant, 498 F.3d 933

PER CURIAM Opinion; Concurrence by Judge THOMAS PER CURIAM: In this appeal, we consider whether a violation of California Penal Code § 261.5(c), one of California’s statutory rape provisions, constitutes “sexual abuse of a minor” within the meaning of 8 U.S.C. § 1101(a)(43)(A). Applying Afridi v. Gonzales, 442 F.3d 1212 (9th Cir.2006), we conclude that it does, and we deny the petition for review. I Petitioner Juan Elias Estrada-Espinoza is a native and citizen of Mexico. He entered the United States in 1992, at the age of 12. He adjusted status to become a lawful permanent resident on June 25, 1998.

The Department of Homeland Security (“DHS”) placed Estrada-Espinoza in removal proceedings in 2005, charging him with being removable as an alien convicted of an aggravated felony. DHS based this charge on state statutory rape convictions stemming from Estrada-Espinoza’s relationship with his younger girlfriend. In June 2001, Estrada-Espinoza met Sonia Arredondo. At the time of their meeting, Estrada-Espinoza was 20 years old and Arredondo was either 15 or 16 years old.

Estrada-Espinoza claims that Arre-dondo and her friends told him she was 18 at the time of their meeting, and that he did not learn of her true age until December 2001. The two began dating sometime after June 2001, and began living together at the house of Estrada-Espinoza’s parents a few months after they met. Estrada-Espinoza claims that both sets of parents approved of the relationship and that he regularly visited his girlMend’s parents. After six months of living with Estrada-Espinoza’s parents, the couple apparently moved to a residence of their own.

During this time, Estrada-Espinoza worked in various grocery stores to support himself, his girlfriend, and, eventually, the child they raised together. On July 13, 2004, the District Attorney filed statutory rape charges against Estrada-Espinoza, alleging fourteen counts of various sex offenses.

On October 25, 2004, Estrada-Espinoza was convicted on four counts, all of them relating to sexual activity with his girlfriend between November 30, 2001, and November 30, 2003: unlawful sexual intercourse with a person under 18 and three years younger than defendant, not defendant’s spouse, CaLPenal Code § 261.5(c); sodomy of a person under 18, id. § 286(b)(1); oral copulation of a person under 18, id. § 288a(b)(l); and sexual penetration by a foreign object of a person under 18, id. § 289(h). The court sentenced Estrada-Espinoza to 365 days in county jail, with credit for time served, on February 15, 2005.

It is unclear from the record how he pled or whether there was a trial. After DHS commenced removal proceedings, Estrada-Espinoza admitted the allegations but denied removability and moved to terminate the removal proceedings. On July 8, 2005, the Immigration Judge (“IJ”) denied the motion to terminate the proceedings and found Estrada-Espinoza removable as an “aggravated felon” under 8 U.S.C. § 1227(a)(2)(A)(iii), as that term is defined in 8 U.S.C. § 1101(a)(43)(A), the Immigration and Nationality Act.

That provision defines “aggravated felony” as the “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). The IJ appeared to rest this decision on Estrada-Espinoza’s conviction under California Penal Code § 261.5(c), the statutory rape law criminalizing sexual intercourse with someone under 18 and three years younger than the defendant, not the defendant’s spouse. The IJ relied at least in part on our withdrawn opinion in Valencia v. Gonzales, 406 F.3d 1154 (9th Cir.2005), which found that § 261.5(

c) was a crime of violence and hence an aggravated felony. (The IJ recognized that Estrada-Espinoza was being removed for “sexual abuse of a minor,” not a “crime of violence.”) ' The IJ did not have the benefit of the Valencia panel’s amended opinion holding that § 261.5(

c) is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F). Valencia v. Gonzales, 439 F.3d 1046 (9th Cir.2006). Estrada-Espinoza appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”), which dismissed the appeal on October 5, 2005. The BIA found no merit to Estrada-Espinoza’s argument that because the sexual acts were consensual, “no violence was used and that there is no evidence of potential harm to the victim.” Instead, referring to

definitions of “sexual abuse of a minor” used in the past by this court and the BIA, the BIA found that a “person who engages in the described conduct has necessarily exploited that child for the purpose of sexual gratification. Such exploitation conforms to the definition of ‘sexual abuse’ adopted by this Board ... and also fits the ordinary, contemporary and common meaning of the term ‘abuse’ under ...” Ninth Circuit precedent. The BIA affirmed Estrada-Espinoza’s status as an aggravated felon, citing all four of the statutes of conviction. This timely petition followed.

II Estrada-Espinoza asks us to decide whether his prior convictions under various statutory rape laws qualify as aggravated felonies because they involve the “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). If they do, he is removable as an alien who has been convicted of an aggravated felony after his admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). In making this determination, we employ the familiar “categorical approach,” looking only at “ ‘the fact of conviction and the statutory definition of the prior offense.’ ” United States v.

Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc) (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). The categorical approach dictates that a statutory rape crime qualifies as sexual abuse of a minor and hence as an aggravated felony “ ‘if and only if the full range of conduct covered by it falls within the meaning of ” sexual abuse of a minor. Valencia, 439 F.3d at 1049 (quoting United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999)).

If the statute criminalizes any conduct that falls outside the definition of sexual abuse of a minor, we then employ the “modified categorical approach,” in which the conviction may be considered an aggravated felony only if “the record includes documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes.” Corona-Sanchez, 291 F.3d at 1203 (internal quotation marks omitted). The offenses committed by Estrada-Espinoza include the same basic elements, differing only in the type of sexual activity involved.

All require one participant to be under age 18, and none require any use of force or coercion. See Cal.Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1), 289(h).

Section 261.5(

c) is slightly different, however, in that it requires one participant to be under age 18 and more than three years younger than the defendant and not the spouse of the defendant. By their plain language, the other statutes do not require these additional elements. We recently held that California Penal Code § 261.5(

c) categorically constitutes sexual abuse of a minor under the generic definition: “[a] conviction under[§ 261.5(c)] meets the BIA’s

interpretation of ‘sexual abuse of a minor’ as encompassing any offense that involves ‘the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in ... sexually explicit conduct....’” Afridi v. Gonzales, 442 F.3d 1212, 1217 (9th Cir.2006) (quoting Matter of Rodriguez-Rodriguez, 22 I & N Dec. 991, 991, 995 (BIA 1999)). Afridi is binding precedent and controls this case. Because Afri-di held that- a conviction pursuant to § 261.5(

c) categorically qualifies as a “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), Afridi, 442 F.3d at 1217, Estrada-Espinoza has been convicted of an aggravated felony. Afridi also adopted the BIA’s definition of “minor” as anyone under the age of 18, id. at 1216, 1217; that definition is controlling and forecloses Estrada-Espinoza’s argument that “minor” should be defined, for sexual abuse purposes, as anyone under age 16 to reflect the age of consent in the majority of states. Therefore, the BIA and IJ did not err in denying relief, and we must deny the petition for review. PETITION DENIED.