Mario Rivera v. Eric Holder, Jr. (4th Cir 09-28-2012) (unpub) no. 12-1404
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1404MARIO RIVERA, a/k/a Mario Antonio Rivers, Petitioner, v.ERIC H. HOLDER, JR., Attorney General, Respondent.On Petition for Review of an Order of the Board of ImmigrationAppeals.Submitted: September 18, 2012 Decided: September 28, 2012Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.Petition denied by unpublished per curiam opinion.Steffanie J. Lewis, THE INTERNATIONAL BUSINESS LAW FIRM, PC,Washington, D.C. for Petitioner. Stuart F. Delery, ActingAssistant Attorney General, Ada E. Bosque, Senior LitigationCounsel, Lindsay Corliss, Office of Immigration Litigation,UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., forRespondent.Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Mario Rivera, a native and citizen of El Salvador,petitions for review of an order of the Board of ImmigrationAppeals (“Board”) dismissing his appeal from the immigrationjudge’s order denying his application for special rulecancellation of removal under § 203 of the Nicaraguan Adjustmentand Central American Relief Act (“NACARA”) (Pub. L. No. 105-100,111 Stat. 2160). Rivera challenges the findings that hisconviction for sexual battery was a crime involving moralturpitude, that he was not a person of good moral character andthat his removal would not be an exceptional and extremelyunusual hardship to him and his family. We deny the petitionfor review. Is this sexual offense a CIMT and does it negate GMC? Are you serious? We have noted that Congress did not define a crimeinvolving moral turpitude. See Yousefi v. INS, 260 F.3d 318,325-26 (4th Cir. 2001). We accord substantial deference to theBoard’s determination of what type of conduct involves moralturpitude. Id. at 326. The interpretation must not be anunreasonable one. Id. The Board looks to the elements of theoffense rather than the facts surrounding the crime. Id. The Board has defined a crime involving moralturpitude as being “‘inherently base, vile, or depraved, andcontrary to accepted rules of morality and the duties owedbetween persons or to society in general.’” Prudencio v. 2
Holder, 669 F.3d 472, 484-85 (4th Cir. 2012) (quoting Matter ofOlquin-Rufino, 23 I. & N. Dec. 896, 896 (BIA 2006)). Generally, the categorical approach involves givingconsideration “only to the essential elements of the offense andthe fact of conviction.” United States v. Baxter, 642 F.3d 475,476 (4th Cir. 2011). In order to find that a conviction was acrime involving moral turpitude under the categorical approachthat was utilized in this case, the Board and the immigrationjudge must determine whether the crime at issue categoricallyinvolves moral turpitude by examining “whether there is a‘realistic probability, not a theoretical possibility,’” thatthe criminal statute “would be applied to reach conduct thatdoes not involve moral turpitude.” Matter of Silva-Trevino, 24 I&NI. & N. Dec. 687, 690 (BIA 2009). “This realistic probabilitycan be established by showing that, in at least one other case,the state courts in fact did apply the statute in the special(nongeneric) manner[.]” Nunez v. Holder, 594 F.3d 1124, 1129(9th Cir. 2010) (internal quotation marks omitted). It isRivera’s burden to establish that he is qualified for NACARArelief. See 8 C.F.R. § 1240.66(c) (2012). Thus, he must showthat the conviction can be applied in a way that would not beconsidered a crime involving moral turpitude. We conclude that the Board did not err in finding thatRivera’s conviction for Va. Code Ann. § 18.2-67.4 (2009), Sexual 3 See Attached.
Battery, is categorically a crime involving moral turpitude.Rivera failed to show that the statute could be applied in a waythat would not involve moral turpitude. Because Rivera was inadmissible due to a priorconviction for a crime involving moral turpitude, in order toestablish eligibility for relief under the NACARA, he needed toshow that he was of good moral character during the ten yearperiod of continuous presence following the commission of theoffense and that his removal would be an exceptional andextremely unusual hardship to him and his family. See 8 C.F.R.§ 1240.66(c). In Barahona v. Holder, __ F.3d __, 2012 WL 3264386, *3(4th Cir. 2012), we noted that the court does not havejurisdiction to review factual findings or discretionary denialsof relief under the NACARA, except to review constitutionalclaims and questions of law. Thus, the findings that Rivera wasnot of good moral character or that his removal would not be anexceptional and extremely unusual hardship, to the extent basedon factual findings and discretion, are not reviewable. Rivera attempts to fashion his arguments against thediscretionary findings as reviewable questions of law. However,we conclude that he has failed to raise such reviewablequestions. Thus, we are without jurisdiction to review thediscretionary finding that Rivera was not a person of good moral 4
character or that his removal would not be an exceptional andextremely unusual hardship. Accordingly, we deny the petition for review. Wedispense with oral argument because the facts and legalcontentions are adequately presented in the materials before thecourt and argument would not aid the decisional process. PETITION DENIED 5
Virginia Code Title 18.2 Chapter 4 - Crimes Against the Person [Usually Described as a Violent Crime]§ 18.2-67.4. Sexual battery.A. An accused is guilty of sexual battery if he sexually abuses, as defined in § 18.2-67.10,(i) the complaining witness against the will of the complaining witness, by force,threat, intimidation, or ruse,(ii) an inmate who has been committed to jail or convicted and sentenced toconfinement in a state or local correctional facility or regional jail, and the accused isan employee or contractual employee of, or a volunteer with, the state or localcorrectional facility or regional jail; is in a position of authority over the inmate; andknows that the inmate is under the jurisdiction of the state or local correctional facilityor regional jail, or(iii) a probationer, parolee, or a pretrial defendant or post-trial offender under thejurisdiction of the Department of Corrections, a local community-based probationservices agency, a pretrial services agency, a local or regional jail for the purposes ofimprisonment, a work program or any other parole/probationary or pretrial services oragency and the accused is an employee or contractual employee of, or a volunteerwith, the Department of Corrections, a local community-based probation servicesagency, a pretrial services agency or a local or regional jail; is in a position ofauthority over an offender; and knows that the offender is under the jurisdiction of theDepartment of Corrections, a local community-based probation services agency, apretrial services agency or a local or regional jail.B. Sexual battery is a Class 1 misdemeanor.(1981, c. 397; 1997, c. 643; 1999, c. 294; 2000, cc. 832, 1040; 2006, c. 284; 2007,c. 133.)
§ 18.2-67.10. General definitions.As used in this article:1. "Complaining witness" means the person alleged to have been subjected to rape,forcible sodomy, inanimate or animate object sexual penetration, marital sexualassault, aggravated sexual battery, or sexual battery.2. "Intimate parts" means the genitalia, anus, groin, breast, or buttocks of any person.3. "Mental incapacity" means that condition of the complaining witness existing at thetime of an offense under this article which prevents the complaining witness fromunderstanding the nature or consequences of the sexual act involved in such offenseand about which the accused knew or should have known.4. "Physical helplessness" means unconsciousness or any other condition existing atthe time of an offense under this article which otherwise rendered the complainingwitness physically unable to communicate an unwillingness to act and about whichthe accused knew or should have known.5. The complaining witnesss "prior sexual conduct" means any sexual conduct on thepart of the complaining witness which took place before the conclusion of the trial,excluding the conduct involved in the offense alleged under this article.6. "Sexual abuse" means an act committed with the intent to sexually molest, arouse,or gratify any person, where:a. The accused intentionally touches the complaining witnesss intimate parts ormaterial directly covering such intimate parts;b. The accused forces the complaining witness to touch the accuseds, the witnesssown, or another persons intimate parts or material directly covering such intimateparts;c. If the complaining witness is under the age of 13, the accused causes or assists thecomplaining witness to touch the accuseds, the witnesss own, or another personsintimate parts or material directly covering such intimate parts; ord. The accused forces another person to touch the complaining witnesss intimate partsor material directly covering such intimate parts.(1981, c. 397; 1987, c. 277; 1993, c. 549; 1994, c. 568; 2004, c. 741.)