                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 28 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JUAN CARLOS MENDOZA, AKA Juan                    No. 08-72046
Mendez,
                                                 Agency No. A076-452-961
             Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER JR., Attorney General,

             Respondent,




                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted February 16, 2012
                            San Francisco, California

Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.

       An immigration judge (IJ) found that Juan Carlos Mendoza was removable

based on his conviction for rape in the third degree under New York Penal Law

§ 130.25(1), an aggravated felony under § 101(a)(43)(A) of the Immigration and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Nationality Act. The Board of Immigration Appeals (BIA) affirmed the IJ’s

decision. Mendoza petitions for review of the BIA’s order dismissing his appeal.

We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny the petition for

review.

         Mendoza contends that the IJ violated his due process rights by asking him if

the conviction documents submitted by the government “relat[ed]” to him, without

explaining that he could object to admission of the documents. Mendoza appeared

pro se in the removal proceedings. We review de novo claims of due process

violations in removal proceedings. Jacinto v. INS, 208 F.3d 725, 727 (9th Cir.

2000).

         Due process is violated in an immigration proceeding when “(1) the

proceeding was so fundamentally unfair that the alien was prevented from

reasonably presenting his case, and (2) the alien demonstrates prejudice, which

means that the outcome of the proceeding may have been affected by the alleged

violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006)

(internal citations and quotation marks omitted). Here, there is no indication that

the IJ prevented Mendoza from reasonably presenting his case. The record

demonstrates that Mendoza understood the IJ’s question, and that he had decided




                                      Page 2 of 4
no longer to dispute the fact of his conviction, instead arguing that his conviction

did not qualify as an aggravated felony.

      Furthermore, Mendoza cannot show that he was prejudiced by his failure to

object to the conviction documents. Mendoza does not explain precisely what

objection he would have made, but he argues generally that the documents were

not sufficient to establish the fact of his conviction for third degree rape. We

disagree. Among other things, the government submitted an information

specifying that Mendoza was charged with third degree rape under New York

Penal Law § 130.25(1); a waiver of appeal that references the information number

and indicates that it was signed as part of a plea agreement; and a sentence and

commitment form referencing the information number and noting that Mendoza

was convicted under § 130.25. These documents were properly admitted into the

record and are sufficient to prove the fact that Mendoza was convicted of third

degree rape under § 130.25(1). See 8 U.S.C. § 1229a(c)(3)(B)(vi).

      Because third degree rape under § 130.25(1) is categorically an aggravated

felony, we need not consider whether these documents would be sufficient under

the modified categorical approach. We review de novo whether a conviction

qualifies as an aggravated felony. Carlos-Blaza v. Holder, 611 F.3d 583, 587 (9th

Cir. 2010). Section 130.25(1) provides that “[a] person is guilty of rape in the third


                                     Page 3 of 4
degree when . . . [h]e or she engages in sexual intercourse with another person who

is incapable of consent by reason of some factor other than being less than

seventeen years old.” We have previously held that nonconsensual sexual

intercourse falls within the common definition of rape and is thus categorically an

aggravated felony. See, e.g., United States v. Yanez Saucedo, 295 F.3d 991,

995–96 (9th Cir. 2002); Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir. 2000).

The BIA correctly applied this precedent to determine that Mendoza’s conviction

was an aggravated felony. We are not persuaded by Mendoza’s argument that the

BIA erred by failing to expressly state that it was using the “categorical approach.”




      The petition for review is DENIED.




                                     Page 4 of 4
