                                                                               FILED
                                                                   United States Court of Appeals
                                      PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      June 18, 2018

                                                                      Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                         Clerk of Court
                        _________________________________

AZAEL BEDOLLA-ZARATE,

      Petitioner,

v.                                                          No. 17-9519

JEFFERSON B. SESSIONS, III, United
States Attorney General,

      Respondent.
                        _________________________________

                    Appeal from the Board of Immigration Appeals
                                (Petition for Review)
                       _________________________________

Kari E. Hong of Boston College Law School, Newton, Massachusetts, for Petitioner.

Matthew B. George, (Chad A. Readler, Acting Assistant Attorney General, and Douglas
E. Ginbsurg, Assistant Director, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, on the brief), Washington, D.C., for Respondent.
                        _________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

KELLY, Circuit Judge.
                        _________________________________

      Petitioner-Appellant Azael Bedolla-Zarate, a native and citizen of Mexico,

petitions for review of a Department of Homeland Security (DHS) Final Administrative

Removal Order (FARO) based upon his having been convicted of an aggravated felony, 8

U.S.C. § 1227(a)(2)(A)(iii). Mr. Bedolla-Zarate was convicted of third-degree sexual
abuse of a minor in Wyoming state court in September 2016. He contends that his

conviction does not qualify as an aggravated felony. Under the Immigration and

Nationality Act (INA), we have jurisdiction to review final orders of removal, 8 U.S.C.

§ 1252(a)(1), and deny review.1



                                      Background

      Mr. Bedolla-Zarate was born in Mexico and brought to the United States without

authorization in 1997 when he was two years old. He remained in the United States

under the Deferred Action for Childhood Arrivals (DACA) policy.

      In April 2017, DHS served Mr. Bedolla-Zarate with a Notice of Intent to Issue a

FARO based on the Wyoming conviction. FAROs permit expedited removal

proceedings that do not include an immigration judge (IJ) or the Board of Immigration

Appeals (BIA). DHS can issue a FARO (and therefore institute expedited removal

proceedings) when an alien is convicted of an aggravated felony. 8 U.S.C.

§ 1227(a)(2)(A)(iii); see Aguilar v. Napolitano, 700 F.3d 1238, 1240 (10th Cir. 2012).

Sexual abuse of a minor is classified as an aggravated felony. 8 U.S.C. § 1101(a)(43)(A).




      1
         After DHS issued the FARO, Mr. Bedolla-Zarate initiated separate proceedings
with DHS, requesting relief from deportation because of a reasonable fear of returning to
his native county. On April 5, 2018, the BIA dismissed Mr. Bedolla-Zarate’s appeal of
the IJ’s decision in those proceedings, thereby eliminating any need for this court to
consider the government’s motion to dismiss or abate the appeal pending the outcome.
We therefore deny the government’s motion as moot.


                                            2
       Although Mr. Bedolla-Zarate argued that a FARO was improper because his state

conviction was not an aggravated felony under the INA, DHS disagreed and issued the

FARO on May 1, 2017.



                                        Discussion

       Mr. Bedolla-Zarate contends that DHS erred by placing him into expedited

removal proceedings because (1) he was not actually “convicted” under

§ 1101(a)(48)(A), and even if so, (2) his conviction did not constitute an aggravated

felony under the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), because sexual abuse of a minor

within § 1101(a)(43)(A) has a knowledge mens rea that extends to the victim’s age and

includes an element of “actual abuse.” Our review is de novo. Rangel-Perez v. Lynch,

816 F.3d 591, 601 (10th Cir. 2016).

          a. Conviction

       Mr. Bedolla-Zarate argues that there is not clear and convincing evidence that he

was convicted because there is ambiguity as to whether he pled guilty to the charge. “It

is the Government[’s] burden to establish, by clear and convincing evidence, that the

noncitizen has a prior conviction that warrants his removal.” Lucio-Rayos v. Sessions,

875 F.3d 573, 583 (10th Cir. 2017). Section 1101(a)(48)(A) defines “conviction” as,

among other things, when an alien (i) “has entered a plea of guilty . . . or has admitted

sufficient facts to warrant a finding of guilty, and (ii) the judge has ordered some form of

punishment, penalty, or restraint on the alien’s liberty.” Mr. Bedolla-Zarate concedes



                                             3
that the judgment and sentence, see 1 R. 20–21, meets subpart (ii) of § 1101(a)(48)(A).

Aplt. Br. at 16.

       On subpart (i), however, Mr. Bedolla-Zarate contends that the state district court’s

statement in the judgment and sentence that “[t]he defendant was competent to enter the

plea; the plea was voluntary, and not the result of force or threats or of promises apart

from any plea agreement, if there was a plea agreement,” 1 R. at 19 (emphasis added),

establishes ambiguity about whether there was a plea agreement.

       We disagree. Mr. Bedolla-Zarate’s argument contradicts the entirety of the five-

page judgment and sentence, including the court’s explicit statement that Mr. Bedolla-

Zarate “pled guilty to Count I, Sexual Abuse of a Minor in the Third Degree . . . and was

satisfied there existed a factual basis for the plea.” Id. This is sufficient to establish that

he entered a plea of guilty. Accordingly, Mr. Bedolla-Zarate was “convicted” within the

meaning of § 1101(a)(48)(A).

           b. Categorical Approach

       Mr. Bedolla-Zarate next contends that DHS erred in finding that his Wyoming

conviction was an aggravated felony. Under the INA, “[a]ny alien who is convicted of an

aggravated felony at any time after admission is deportable,” 8 U.S.C.

§ 1227(a)(2)(A)(iii), and sexual abuse of a minor is classified as an aggravated felony,

id. § 1101(a)(43)(A). Mr. Bedolla-Zarate’s Wyoming conviction for sexual abuse of a

minor is therefore an aggravated felony if it constitutes sexual abuse of a minor under the

INA.



                                               4
       To determine whether a state offense constitutes an aggravated felony under the

INA, we apply a “categorical approach” to ascertain whether the state statute

categorically fits within the generic offense. Moncrieffe v. Holder, 569 U.S. 184, 190

(2013). However, if the state statute is divisible — or lists elements in the alternative —

courts apply a modified categorical approach, which permits a limited inquiry into certain

charging documents. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). In this case,

because the Wyoming statute, Wyo. Stat. Ann. § 6-2-316(a)(i), has a single, indivisible

set of elements, we apply the categorical approach to determine whether Mr. Bedolla-

Zarate’s Wyoming conviction for sexual abuse of a minor is an aggravated felony within

the INA’s definition of sexual abuse of a minor. See Moncrieffe, 569 U.S. at 190. Under

the categorical approach, we consider whether “the least of the acts criminalized by the

state statute falls within the generic federal definition of sexual abuse of a minor.”

Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017). We therefore compare the

elements of the Wyoming state statute with the elements of the INA’s sexual abuse of a

minor offense and then examine whether the state statute categorically fits within the

generic offense. See id.

       Because Congress did not explicitly outline the elements of the INA’s generic

offense of sexual abuse of a minor in § 1101(a)(48)(A), we look first to the everyday

understanding of the term when Congress added “sexual abuse of a minor” to the INA:

“engaging in sexual contact with a person who is below a specified age or who is

incapable of giving consent because of age or mental or physical incapacity.” Id. at 1569

(quoting Sexual abuse, Merriam-Webster’s Dictionary of Law (1st ed. 1996)). We also

                                              5
afford deference to the interpretation from the administrative agency charged with

administering the statute — in this case the BIA through the Attorney General. See

Ibarra v. Holder, 736 F.3d 903, 905, 910 (10th Cir. 2013). Although not directly on point

here, in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995–96 (BIA 1999), the BIA

stated the definition of “sexual abuse” found in 18 U.S.C. § 3509(a)(8) was to be a guide

in identifying the crimes that should be classified as sexual abuse of a minor under the

INA. That section defines sexual abuse as the “use . . . of a child to engage

in . . . sexually explicit conduct.” 18 U.S.C. § 3509(a)(8).2

       In Rangel-Perez v. Lynch, 816 F.3d 591 (10th Cir. 2016), this court reiterated that

§ 3509 was simply a guide and that in considering the INA definition of sexual abuse of a

minor, courts should also look to the two federal statutes that set forth the substantive

sexual abuse crimes involving minors: 18 U.S.C. §§ 2241(c), 2243. 816 F.3d at 604; see

Esquivel-Quintana, 137 S. Ct. at 1570 (using 18 U.S.C. § 2243 as evidence for the

generic federal definition). Based on these two statutes, Rangel-Perez held that “the

INA’s general ‘sexual abuse of a minor’ offense also has an element of proof that the

defendant ‘knowingly’ committed the proscribed sex acts.” Id. at 604–05. Although the

court held that a person must knowingly commit the acts, it noted that the intent element

applied only to the proscribed sex acts, not to the age of the victims. Id.




2
 Sexually explicit content includes “the intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any
person.” 18 U.S.C. § 3509(a)(9)(A).
                                              6
       We next consider the Wyoming sexual abuse of a minor statute for which Mr.

Bedolla-Zarate was convicted to determine whether it categorically qualifies as sexual

abuse of a minor under the INA. That statute, Wyo. Stat. Ann. § 6-2-316(a)(i), states that

an

       actor commits the crime of sexual abuse of a minor in the third degree if: (i)
       Being seventeen (17) years of age or older, the actor engages in sexual
       contact with a victim who is thirteen (13) through (15) years of age, and the
       victim is at least four (4) years younger than the actor.3

Mr. Bedolla-Zarate contends that the Wyoming sexual abuse of a minor statute is broader

than the generic offense because it does not include (1) a knowledge mens rea regarding

the age of the victim or (2) an “actual abuse” element.

       Mr. Bedolla-Zarate’s first argument plainly fails based on both this court’s

discussion in Rangel-Perez, where the court stated that the knowledge requirement

applied to the proscribed sex acts, but not the age of the victim, 816 F.3d at 604–05, and

the Supreme Court’s statement in Esquivel-Quintana that we look to § 2243 as evidence

of the generic federal definition — which does not have a knowledge requirement for the

age of the victim.4 Accordingly, because neither the generic offense nor the Wyoming


3
  “Sexual contact” includes “touching, with the intention of sexual arousal, gratification
or abuse, of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the
victim, or of the clothing covering the immediate area of the victim’s or actor’s intimate
parts.” Wyo. Stat. Ann. § 6-2-301(a)(vi).
4
  In Esquivel-Quintana, the Supreme Court stated that courts should consider state
criminal codes when determining the generic meaning of sexual abuse of a minor, 137 S.
Ct. at 1571, abrogating our decision in Rangel-Perez, which held that we should examine
only federal law when defining sexual abuse of a minor under the INA, 816 F.3d at 603–
04. However, we decline to engage in an analysis of state statutes because the issue has
not been adequately briefed. See In re: Motor Fuel Temperature Sales Practices Litig.,
872 F.3d 1094 (10th Cir. 2017) (declining to consider an inadequately briefed argument).
                                              7
statute requires knowledge of the victim’s age, we reject Mr. Bedolla’s claim that the

Wyoming statute sweeps more broadly on this element of the offense.

       As to Mr. Bedolla-Zarate’s second argument, he contends that the generic

definition of sexual abuse of a minor should include an element of “actual abuse,” which

could include an age gap (such as only relationships with a greater than five-year age

difference), lack of consent, a relationship with a power imbalance, or exploitation. See

Aplt. Br. at 28–32. However, Mr. Bedolla-Zarate’s opening brief provides no support for

this argument through plain meaning, case law, federal statutes, or evidence that a

majority of state criminal codes support an “actual abuse” element. See Esquivel-

Quintana, 137 S. Ct. at 1571 (“[W]e look to state criminal codes for additional evidence

about the generic meaning of sexual abuse of a minor.”).

       We agree with the Eighth Circuit’s recent statement — relying on the Supreme

Court’s decision in Esquivel-Quintana — that if the sexual abuse of a minor generic

offense “requires an element of seriousness beyond sexual penetration with a person too

young to consent [it] would effectively remove from the INA’s purview all statutory rape

offenses that are based solely on the age of the participants” and that “[a]dding an age-

differential requirement that is greater than two years and a day to the INA’s

unambiguous rule that a victim must be younger than sixteen years would eliminate from

the generic offense the majority of age-based state statutory rape offenses in effect when

But even if we were to independently undertake a review of state criminal codes, it
appears the result would hardly settle the issue in Mr. Bedolla-Zarate’s favor. See, e.g.,
Jenkins v. State, 877 P.2d 1063, 1065 (Nev. 1994) (noting that “the weight of authority in
the United States” did not allow mistake as to the victim’s age as a defense to statutory
rape).
                                             8
the federal provision was enacted.” Garcia-Urbano v. Sessions, 2018 WL 2246520, at

*2–3 (8th Cir. 2018); see Esquivel-Quintana, 137 S. Ct. at 1571 (indicating that the

generic offense cannot “categorically exclude the statutory rape laws of most States”5 and

that “[a] significant majority of jurisdictions thus set the age of consent at 16 for statutory

rape offenses predicated exclusively on the age of the participants” (emphasis added)).

For the same reasons, and because Mr. Bedolla-Zarate fails to provide support for his

contention, his argument also fails.

       Accordingly, a person convicted under the Wyoming sexual abuse of a minor

statute necessarily has committed sexual abuse of a minor under the INA. DHS therefore

properly issued a FARO against Mr. Bedolla-Zarate for committing an aggravated felony

under the INA.

       REVIEW DENIED.




5
  In Esquivel-Quintana, the Court suggested that an age differential of four years is too
large for the generic offense; Mr. Bedolla-Zarate proposes an even larger five-year age
differential.
                                               9
