                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-1683


JUAN MANUEL RIVERA-RONDON,

                Petitioner,

           v.

ERIC H. HOLDER, JR.,

                Respondent.



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


Argued:   May 12, 2009                      Decided:   August 3, 2009


Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and Malcolm J.
HOWARD, Senior United States District Judge for the Eastern
District of North Carolina, sitting by designation.


Petition dismissed in part and denied in part by unpublished per
curiam opinion.


ARGUED: Jason Lee Pope, LAW OFFICE OF MARY ANN BERLIN,
Baltimore, Maryland, for Petitioner.   Keith Ian McManus, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.    ON BRIEF: Mary Ann Berlin,
Baltimore, Maryland, for Petitioner.        Gregory G. Katsas,
Assistant Attorney General, Civil Division, Michelle Gorden
Latour, Assistant Director, UNITED STATES DEPARTMENT OF JUSTICE,
Office   of  Immigration   Litigation,  Washington,   D.C.,  for
Respondent.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Juan Manuel Rivera-Rondon (“Rivera”) petitions for review

of an order of the Board of Immigration Appeals upholding an

immigration judge’s decision finding Rivera to be removable and

ineligible        for     withholding       of     removal,      and       reversing       the

immigration       judge’s     determination        that     Rivera     is     entitled      to

deferral     of        removal     under    the     Convention         Against        Torture

(“CAT”), see United Nations Convention Against Torture and Other

Cruel,     Inhuman      or   Degrading      Treatment      or    Punishment,          adopted

Dec. 10, 1984, art. 3, 23 I.L.M. 1027, 1465 U.N.T.S. 85.                                    We

dismiss     for     lack     of    jurisdiction       the       portion       of     Rivera’s

petition     requesting          relief    under    the    CAT,      and    we      deny   the

petition as to Rivera’s removability.

                                            I.

     Rivera is a Peruvian citizen who entered the United States

illegally in 1991.            His status was adjusted to that of lawful

permanent resident in August 2000.                        In October 2004, he was

convicted in a Maryland state court after pleading guilty to

willfully contributing to an act, omission, or condition that

renders a child in need of assistance.                     See Md. Code Ann., Cts.

&   Jud.    Proc.       § 3-828.          Consequently,         in    April        2007,   the

Department        of     Homeland     Security       (“DHS”)         commenced        removal

proceedings against him, charging him with being removable on

four grounds:            having been convicted of an aggravated felony

                                             3
constituting      sexual     abuse      of       a    minor,        see     8      U.S.C.A.

§§ 1101(a)(43)(A),         1227(a)(2)(A)(iii)            (West        2005);        having

willfully    misrepresented      one    or       more   material          facts     on    his

application      for      adjustment       of        status,        see     8      U.S.C.A.

§§ 1227(a)(1)(A),       1182(a)(6)(C)(i)             (West     2005);      having        been

convicted of a crime involving moral turpitude, see 8 U.S.C.A. §

1227(a)(2)(A)(i) (West 2005); and having been convicted of a

crime of child abuse, child neglect, or child abandonment, see 8

U.S.C.A. § 1227(a)(2)(E)(i) (West 2005).

       Appearing with counsel before an immigration judge in April

2007, Rivera admitted his alienage but denied each of the four

charges     of    removability       and        moved    to     terminate          removal

proceedings.      The immigration judge denied his motion, finding

that DHS had proven by clear and convincing evidence that Rivera

was in fact removable on each of the four charges.

       Having    been   determined      to      be    removable,          Rivera    sought

withholding of removal under the Immigration and Nationality Act

(“INA”), see 8 U.S.C.A. §            1231(b)(3) (West 2005), and relief

from   removal    under    the   CAT.          Regarding      the    request       for    CAT

relief, he claimed he feared he would be detained, tortured, or

assassinated if he returned to Peru because the Peruvian army

would view him as a traitor for having implicated other military

officials with his testimony concerning a 1985 incident that

occurred when he was serving in the military.                         On December 12,

                                           4
2007, the immigration judge issued an opinion ordering Rivera

removed       to     Peru   pursuant     to    the    four    charges,   denying     his

applications for withholding of removal under the INA and the

CAT, and granting his request for deferral of removal under the

CAT.

       Both    parties       appealed,    with       Rivera   challenging     only   the

four       charges    of    removability.           The   Board   dismissed   Rivera’s

appeal and sustained the government’s in part.                      The Board agreed

with the immigration judge that Rivera had been convicted of an

offense that constituted sexual abuse of a minor 1 but disagreed

with the judge’s finding that Rivera was eligible for deferral

of removal under the CAT.                The Board therefore ordered Rivera

removed to Peru.

                                              II.

       Rivera first argues that the Board erred in determining

that his Maryland conviction was for an aggravated felony.                           We

conclude that the Board correctly decided the issue. 2


       1
       Because it reached this conclusion, the Board did not
address the immigration judge’s determination that Rivera was
also removable under the other three charges.


       2
       The parties appear to disagree regarding the standard of
review that we should apply to the Board’s decision. Because we
would deny the petition of review even were we to apply a de
novo standard, we need not decide what standard of review
applies.



                                              5
      The government has the burden to establish by “clear and

convincing evidence” that the facts alleged as the basis for

removability are true.              8 U.S.C.A. § 1229a(c)(3) (West 2005).

Any alien is removable from the United States if, at any time

after admission, he has been convicted of a crime that the INA

defines       as        an      “aggravated           felony,”       8       U.S.C.A.

§ 1227(a)(2)(A)(iii), which includes, as is relevant here, the

“sexual abuse of a minor,” 8 U.S.C.A. § 1101(a)(43)(A).

      In determining whether Rivera’s Maryland conviction was for

sexual abuse of a minor within the meaning of § 1101(a)(43)(A),

we utilize the categorical approach set out in Taylor v. United

States, 495 U.S. 575 (1990).              See Soliman v. Gonzales, 419 F.3d

276, 284 (4th Cir. 2005).                 Under that approach, we consider

whether      the     statutory      elements     of       the    Maryland    offense

necessarily        include   the    elements   of     a   sexual-abuse-of-a-minor

offense.      See id. at 284.          “If the statute of conviction may,

but   does    not    necessarily,      include”       those     elements,    we   must

consider “the indictment (or information) and similar documents

for the state law offense, and assess whether the state court,

in adjudging guilt, was required to find the elements of [sexual

abuse of a minor] required by federal law.”                     Id.; see Shepard v.

United    States,     544    U.S.   13,   26   (2005)     (holding    that   inquiry

under the categorical approach “is limited to the terms of the

charging document, the terms of a plea agreement or transcript

                                           6
of colloquy between judge and defendant in which the factual

basis for the plea was confirmed by the defendant, or to some

comparable       judicial    record     of       this    information”        (emphasis

added)).

      Rivera      was   convicted      of       violating      § 3-828(a)     of    the

Maryland Courts and Judicial Proceedings Code, which provides

that “[a]n adult may not willfully contribute to, encourage,

cause or tend to cause any act, omission, or condition that

renders a child in need of assistance.”                      A “[c]hild in need of

assistance” is

      a child who requires court intervention because:

           (1)   The  child has   been  abused,  has  been
      neglected, has a developmental disability, or has a
      mental disorder; and

           (2) The child’s parents, guardian, or custodian
      are unable or unwilling to give proper care and
      attention to the child and the child’s needs.

Md. Code Ann., Cts. & Jud. Proc. § 3-801(f) (emphasis added).

As   used   in    § 3-801,   “abuse”    means       “(1)     [s]exual    abuse     of   a

child, whether a physical injury is sustained or not; or (2)

[p]hysical or mental injury of a child under circumstances that

indicate that the child’s health or welfare is harmed or is at

substantial      risk   of   being    harmed      by    [a    parent    or   household

member].”        Md. Code Ann., Cts. & Jud. Proc. § 3-801(b) (2009)

(emphasis added).        “Sexual abuse,” in this context, “means an

act that involves sexual molestation or sexual exploitation of a


                                            7
child by . . . [a] parent or other individual who has permanent

or temporary care or custody or responsibility for supervision

of the child . . . or . . . [a] household family member.”                                   Md.

Code Ann., Cts. & Jud. Proc. § 3-801(x)(1).

      Rivera does not dispute that if he was in fact convicted

under the sexual abuse section of the Maryland statute, he is

removable for having been convicted of an aggravated felony.

However,    Rivera        argues    that       the    government      did    not   prove     by

clear and convincing evidence that he was convicted under that

portion of the statute.                   In support of his position, Rivera

identifies facts that he contends could have been a basis for a

conclusion by the state court that Rivera pled guilty under the

neglect,      mental-disorder,            or     mental-injury        portions         of   the

statute.      He argues that some of these facts must have formed

the   basis      for   his      plea      because      the   version        of   the    sexual

incident with his daughter to which he admitted foreclosed the

possibility that he engaged in any intentional sexual activity

with her.         See Md. Code. Ann, Cts. & Jud. Proc. § 3-828(a)

(providing that “[a]n adult may not willfully contribute to,

encourage,        cause    or      tend    to        cause   any    act,     omission,      or

condition that renders a child in need of assistance” (emphasis

added)).         Finally, he points to a statement his counsel made

during     the    plea     hearing        that       “nothing      about    this   plea      is

intended to imply, for immigration purposes, that he’s committed

                                                 8
a sexual offense against a minor.”                           J.A. 395; see also J.A. 390

(statement of defense counsel that “some of the terms of this

plea    have    been       worked       out    .    .    .    because       of    his    potential

immigration consequences”).                   We are unpersuaded.

       When     asked      during       the     state-court           plea       hearing      for   a

proffer of the facts supporting the guilty plea, the prosecutor

explained      that,       had    the    case      gone       to    trial,       she    would    have

offered evidence that Rivera’s daughter reported in September

2003 that Rivera engaged in anal intercourse with her in 1997

when she was eight years old, as well as evidence that Rivera

had    later    apologized         to    the       child’s         mother    for       abusing   the

child, stating that he had been rubbing the child’s back “and

ended up on top of her.”                  J.A. 399.            The prosecutor noted that

Rivera    had       previously      told       a    court       evaluator        in     the   Family

Division of the Montgomery County Circuit Court that what really

happened was that his daughter came into bed one night with him

and his wife, he “grabbed” her, and got an erection.                                     J.A. 399.

The     prosecutor         reported       that         Rivera      had      claimed      “that      he

realized       it    was    his    daughter         and      pulled      away.”         J.A.     399.

Defense counsel then stated, “No additions for purposes of the

plea.     And just to make it clear for the record, the statement

made to [the court evaluator] is the defendant’s version of the

events.”       J.A. 400.



                                                   9
       The parties’ descriptions in the state court of the factual

basis for the plea unmistakably demonstrate that Rivera pleaded

guilty under the “sexual abuse” section of the statute.                      In

setting out the plea’s factual basis, the prosecutor discussed

only   the   sexual    incident   with    Rivera’s    daughter   and   did   not

assert that any physical or mental injury resulted or that she

was neglected or suffered from a developmental disability or

mental disorder.       Although Rivera points to some facts mentioned

during other parts of the plea hearing that do not relate to

sexual abuse committed by him and which he claims arguably could

have   supported      an   allegation    of   a   § 3-828(a)   violation,    the

colloquy clearly shows that these were not part of the plea’s

factual basis.

       Nor does Rivera’s “version of events” show that the sexual

incident was not the basis for the guilty plea.                  At the time

Rivera pleaded guilty, Maryland Rule 4-242(c) provided, as is

relevant here:

       Plea of guilty. The court may accept a plea of guilty
       only after it determines, upon an examination of the
       defendant on the record in open court conducted by the
       court, the State’s Attorney, the attorney for the
       defendant, or any combination thereof, that (1) the
       defendant is pleading voluntarily, with understanding
       of the nature of the charge and the consequences of
       the plea; and (2) there is a factual basis for the
       plea. . . .   The court may accept the plea of guilty
       even though the defendant does not admit guilt.




                                        10
Md. Rule 4-242(c) (2008).                 Thus, even if Rivera’s version of

events is understood as a refusal to agree that he committed the

act    that    the    prosecutor        outlined       in    the    factual     basis       she

presented for Rivera’s guilty plea, that does not change the

fact that the factual basis was, in fact, the sexual incident

with    Rivera’s        daughter,         and    therefore,           that     Rivera       was

necessarily      convicted        under    the    sexual       abuse       portion    of    the

statute.       See Rivera v. State, 2009 WL 1606767, at *9 (Md. June

10,    2009)    (holding    that     facts       that       “Rivera      engaged     in    anal

intercourse with his daughter and ‘ended upon on top’ of [her]

while rubbing her back” “provided a sufficient factual basis to

support the conclusion that Mr. Rivera violated § 3-828”).

       Finally, defense counsel’s self-serving statement regarding

the immigration implications of the guilty plea, like Rivera’s

statement of his version of events, does not raise any doubt

concerning which facts formed the basis for the plea.                                 It was

certainly      not    the   job    of     the    state      court     to     determine      the

correctness of this assertion.                  Cf. id. at *10 (noting that “the

record does not reflect that the State or the trial judge made

Mr. Rivera any assurances about the actions that [Immigration

and    Customs       Enforcement]       would     or    would      not     pursue    in     the

future”).




                                            11
                                       III.

       In sum, we conclude that the Board correctly determined

that       Rivera   was   removable   for    having   been   convicted   of   an

aggravated felony. 3

                                      DISMISSED IN PART AND DENIED IN PART




       3
       Rivera contends that the Board erred in denying his
application for protection under the CAT. We lack jurisdiction
to review this claim.       Courts generally do not possess
jurisdiction to review final orders of removal against aliens
charged with removability for having committed aggravated
felonies.   See 8 U.S.C.A. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii)
(West 2005); Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir.),
cert. denied, 129 S. Ct. 595 (2008).      Although there is an
exception for “‘constitutional claims or questions of law’”
raised in a petition for review, Saintha, 516 F.3d at 248
(quoting 8 U.S.C.A. § 1252(a)(2)(D) (West 2005)), Rivera does
not raise any such claim.




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