Victor B. Valencia v. Alberto R. Gonzales, Attorney General

406 F.3d 1154 Victor B. VALENCIA, Petitioner, v. Alberto R. GONZALES, * Attorney General, Respondent. No. 03-72028. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 9, 2004. Filed May 12, 2005. James Todd Bennett, El Cerrito, CA, for the petitioner. Peter D. Keisler, Donald E. Keener, Greg D. Mack, Office of Immigration Litigation, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before O'SCANNLAIN, COWEN, ** and BEA, Circuit Judges. BEA, Circuit Judge. 1 Victor Valencia, a native and citizen of Peru, petitions for review from the Board of Immigration Appeals' ("BIA") order summarily affirming the Immigration Judge's ("IJ") order of removal. Valencia was convicted of felony 1 unlawful sexual intercourse with a person under 18, who was more than three years younger than he, in violation of California Penal Code section 261.5(c). The IJ found Valencia removable for having committed an aggravated felony under 8 U.S.C. § 1227 (a)(2)(A)(iii), holding the crime constituted a crime of violence under 8 U.S.C. § 1101 (a)(43)(F), which defines a crime of violence pursuant to 18 U.S.C. §…

concurring:

I wanted to add a few of my own thoughts concerning United States v. Granbois, 376 F.3d 993, 996 (9th Cir.2004). As I pointed out in my concurrence in United States v. Asberry, 394 F.3d 712, 720-21 (9th Cir.2005), I continue to think Granbois was incorrectly decided. I find the reasoning of our sister circuits in United States v. Thomas, 159 F.3d 296, 299 (7th Cir.1998) and United States v. Houston, 364 F.3d 243 (5th Cir.2004) to be more persuasive.

In Thomas , the court considered Illinois’ statutory rape law under a categorical approach and held that the government did not present sufficient evidence to prove the crime presents “a serious potential risk of physical injury to another”:

Id. at 299 .

Similarly, in United States v. Houston, 364 F.3d 243 (5th Cir.2004), the Fifth Circuit concluded that “sexual intercourse between a 20 year old male and a female a day under 17, free of aggravating circumstances such as the victim’s lack of consent or the offender’s use of violence, does not present a serious potential risk of physical injury.” Id. at 248 .

.As noted in the majority opinion, under the “categorical approach” laid out in Taylor v. United States, 495…

Victor Valencia, a native and citizen of Peru, petitions for review from the Board of Immigration Appeals’ (“BIA”) order summarily affirming the Immigration Judge’s (“IJ”) order of removal. Valencia was convicted of felony 1 unlawful sexual intercourse with a person under 18, who was more than three years younger than he, in violation of California Penal Code section 261.5(c). The IJ found Valencia removable for having committed an aggravated felony under 8 U.S.C. § 1227 (a) (2) (A) (iii), holding the crime constituted a crime of violence under 8 U.S.C. § 1101 (a)(43)(F), which defines a crime of violence pursuant to 18 U.S.C. § 16 . Our jurisdiction is controlled by 8 U.S.C. *1156 § 1252 . We deny in part and dismiss in part the petition for review.

Valencia also argued that he should have been allowed to apply for an adjustment of status based on his marriage to a United States citizen. Because we conclude that we lack jurisdiction to review the BIA’s removal order, we will not consider the merits of this argument.

I

On May 29, 1997, Valencia pleaded guilty to a felony violation of California Penal Code section 261.5(c). He was sentenced to five years in state prison, but the…