                                                                              FILED
                              NOT FOR PUBLICATION                             NOV 05 2012

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


OLABISI WALTERSON CARLTON-                       No. 08-73469
CAREW,
                                                 Agency No. A020-618-703
                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 October 15, 2012
                             San Francisco, California

Before: B. FLETCHER,** HAWKINS, and MURGUIA, Circuit Judges.

       Petitioner Olabisi Walterson Carlton-Carew is a native of Sierra Leone.

Carlton-Carew was found subject to removal under the Immigration and



            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Betty Binns Fletcher, Senior Circuit Judge for the Ninth
Circuit Court of Appeals, fully participated in the case and concurred in the
judgment prior to her death.
Nationality Act (“INA”) and the Board of Immigration Appeals (“BIA”) dismissed

his appeal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and deny

Carlton-Carew’s petition for review.

      An alien is removable if he commits the generic federal crime of child abuse,

8 U.S.C. § 1227(a)(2)(E)(i), which comprises three elements: (1) abusive conduct;

(2) a culpability of at least criminal negligence; and (3) a victim under eighteen

years of age, see Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA

2008). In August 2004, Carlton-Carew pled guilty to violating Arizona Revised

Statutes Section 13-3623(B)(3) (“Child or vulnerable adult abuse”). Because

Section 13-3623(B)(3) criminalizes the abuse of a child or vulnerable adult, it is

categorically broader than the generic federal crime of child abuse. See, e.g.,

Alanis-Alvarado v. Holder, 558 F.3d 833, 836 (9th Cir. 2008) (stating a state crime

is categorically overbroad unless the “full range of conduct” covered by the state

statute falls within the scope of the generic federal crime) (citation omitted).

However, a modified categorical analysis demonstrates that Carlton-Carew

“necessarily admitted” to the elements of the generic federal crime of child abuse.

See Young v. Holder, No. 07-70949, 2012 WL 4074668, at *4 (9th Cir. Sept. 17,

2012) (en banc) (internal quotation marks and citation omitted).




                                           2
      Carlton-Carew’s plea agreement indicates he pled guilty to “Child Abuse . . .

in Violation of A.R.S. §§ 13-3623(B)(3) . . . .” Citation to this statute alone

establishes that Carlton-Carew necessarily admitted to, at a minimum, endangering

a child or vulnerable adult’s health with criminal negligence. See Ariz. Rev. Stat. §

13-3623(B)(3). Pursuant to United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir.

2007), citation to the statute in the plea agreement, without more, would not

preclude the possibility that the victim in this case was a vulnerable adult or that

the admitted conduct fell below the INA definition of abuse, see Matter of

Velazquez-Herrera, 24 I. & N. Dec. at 518 n. 2 (concurrence) (stating “broad

though the definition is, it is unclear whether it extends to crimes in which a child

is merely placed or allowed to remain in a dangerous situation, without any

element in the statute requiring ensuing harm...."). However, Carlton-Carew’s plea

agreement specifically identifies his crime as “Child Abuse”: the statute defines

“abuse” as requiring actual damage, Ariz. Rev. Stat. §§ 13-3623(F)(1), 8-201(2),

and defines a “child” as “an individual under eighteen years of age,” Ariz. Rev.

Stat. § 13-3623(F)(2).1 Thus, the plea agreement demonstrates that Carlton-Carew



      1
          The phrase “Child Abuse” in the guilty plea is not merely a reference to
the title of the statute, because the statute’s title is “Child or vulnerable adult abuse;
emotional abuse; classification; exceptions; definitions.” The phrase is, therefore,
a reference to Carlton-Carew’s conduct and victim.
                                            3
admitted to the three elements of the generic federal crime of child

abuse—abusing, with criminal negligence, an individual under eighteen years

old—and he is removable on that basis.

      Carlton-Carew is also ineligible for cancellation of removal because he is an

aggravated felon. 8 U.S.C. § 1229b(a)(3). The INA defines the term “aggravated

felony” to include any burglary offense “for which the term of imprisonment [is] at

least one year,” id. § 1101(a)(43)(G), and this definition applies irrespective of the

date of conviction, see Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir.

2006).2 In March 1982, Carlton-Carew pled guilty to second degree burglary in

violation of Arizona Revised Statutes Section 13-1507 and was sentenced to five

years probation on the condition that he spend one year in county jail.3

Consequently, Carlton-Carew is an aggravated felon and ineligible for cancellation

of removal.


      2
         This Court held in Ledezma-Galicia v. Holder, 636 F.3d 1059, 1080 (9th
Cir. 2010), that convictions occurring prior to November 18, 1988, are not a basis
for removal. However, Ledezma-Galicia did not disturb the INA’s clear directive
that for definitional purposes an alien is an aggravated felon irrespective of the date
of conviction. See 8 U.S.C. § 1101(a)(43); Aragon-Ayon v. I.N.S., 206 F.3d 847,
853 (9th Cir. 2000).
      3
         By failing to raise it with the IJ or BIA Carlton-Carew waived his
argument that a term of imprisonment served as a condition of probation does not
constitute a “term of imprisonment” for immigration purposes. Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003).
                                           4
The Petition for Review is DENIED.




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