                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 18 2015

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



                            FOR THE NINTH CIRCUIT


SERGIO REYES-ALVAREZ, AKA                        No. 13-73487
Sergio Alvarez, AKA Sergio Reyes
Alvarez,                                         Agency No. A079-375-811

              Petitioner,
                                                 MEMORANDUM*
  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted December 10, 2014
                             San Francisco, California

Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.

       Petitioner Sergio Reyes-Alvarez (Reyes-Alvarez) petitions for review of a

decision of the Board of Immigration Appeals (BIA) dismissing his appeal.

Reyes-Alvarez contends that the BIA erred in concluding that his California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conviction for lewd and lascivious acts upon a child aged 14 or 15 is categorically

a conviction for a “crime of child abuse.”

      Giving Chevron deference to the BIA’s definition of the federal generic

offense of a crime of child abuse, Reyes-Alvarez’s California conviction is a

categorical match. See Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014) (en

banc) (explaining that we defer to the BIA’s definition of a federal generic offense

under “the Chevron framework if the decision is published or directly controlled

by a published decision”).

       The mens rea requirement of California Penal Code § 288(c)(1) fits within

the federal generic definition because section 288(c)(1) punishes only “willful[]”

acts, while the federal generic crime encompasses anything from “criminally

negligent” to “intentional” acts. Matter of Velazquez-Herrera, 24 I. & N. Dec.

503, 512 (BIA 2008) (defining “crime of child abuse broadly” as “any offense

involving an intentional, knowing, reckless, or criminally negligent act or omission

that constitutes maltreatment of a [person under 18 years old] or that impairs [such

a person’s] physical or mental well-being, including sexual abuse or exploitation”).

Section 288(c)(1) also meets the actus reus requirement in the federal definition

because a “lewd and lascivious act” upon a child necessarily involves

“maltreatment” of the child. Id.; see also People v. Shockley, 314 P.3d 798, 800


                                             2
(Cal. 2013) (noting that § 288 “assumes that young victims suffer profound harm

whenever they are perceived and used as objects of sexual desire”).

      As Reyes-Alvarez has not sought a stay of removal from the BIA and has

not shown that a stay of removal is warranted pending a collateral challenge to his

state court conviction, the request for a stay is denied. See Leiva-Perez v. Holder,

640 F.3d 962, 971 (9th Cir. 2011).

      PETITION DENIED.




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