                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                    PUBLISH
                                                                      June 21, 2006
                    UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                      Clerk of Court
                               TENTH CIRCUIT



 M AURICIO VARG AS,

               Petitioner,
          v.                                            No. 05-9581
 D EPA RTM EN T O F H O ME LA ND
 SECURITY; M ARIO ORTIZ, Interim
 District Director, in his official
 capacity only; EXECUTIVE OFFICE
 OF IM M IGRATION REVIEW ;
 ALBERTO R. GONZALES, Attorney
 General,

               Respondents.



                  PETITIO N FO R R EV IEW O F A N O RD ER OF
                  THE BOA RD O F IM M IGR ATION APPEALS *
                           (B.I.A. NO . A 76-263-576)


Submitted on the briefs:

Patrick C. Hyde, Denver, Colorado, for Petitioner.

Jennifer L. Lightbody, Attorney, (Stephen J. Flynn, Senior Litigation Counsel,
with her on the brief), Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, W ashington, D.C., for Respondent.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


HA RTZ, Circuit Judge.


      Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an

aggravated felony at any time after admission is deportable.” The term

aggravated felony encompasses, among other things, “sexual abuse of a minor.”

8 U.S.C. § 1101(a)(43)(A). M auricio Vargas was ordered removed from the

country following a state conviction in Colorado for contributing to the

delinquency of a minor. He challenges the validity of his guilty plea in state

court, but we hold that we have no authority to address that claim in this

proceeding. He also contends that the Board of Immigration Appeals (BIA) erred

in concluding that his offense was an aggravated felony. W e have jurisdiction to

resolve this legal dispute under 8 U.S.C. § 1252(a)(2)(D ). Because the state

charge against M r. Vargas was for contributing to the delinquency of a minor by

inducing the minor to engage in unlawful sexual contact, we hold that he was

found guilty of an aggravated felony.

I.    B ACKGR OU N D

      M r. Vargas seeks review of a final order of removal issued by the BIA on

September 6, 2005. He is a native and citizen of M exico. He became a lawful

permanent resident of this country on April 26, 1999. In October 2000 he was


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charged in Colorado state court with three counts of sexual assault on a child.

The State later added a fourth count that alleged that he “did unlawfully,

knowingly and feloniously induce, aid and encourage a child to violate a state

law , to-wit: UNLAW FUL SEXUAL CONTACT; C.R.S. 18-3-404(1)(a); in

violation of Section 18-6-701, C .R.S.; CONTRIBUTING TO THE

DELINQUENCY OF A M INOR.” R. at 76. Under a plea agreement he pleaded

guilty to count four and the first three counts were dismissed.

      In M arch 2005 M r. Vargas received a notice to appear before an

immigration judge (IJ) to show why he should not be removed from the country

under the Immigration and Naturalization Act (INA) § 237(a)(2)(A)(iii), 8 U.S.C.

§ 1227(a)(2)(A)(iii), because of this conviction. At a removal hearing on April 6,

2005, he admitted the factual allegations in the notice to appear but contended

that he was not removable because he had pleaded guilty only to contributing to

the delinquency of a minor, w hich, he contended, is not an aggravated felony.

The IJ disagreed, stating that “the crime of contributing to the delinquency of a

minor is an aggravated felony where the respondent was found guilty of

know ingly inducing or aiding a child to commit sexual contact.” R. at 45. On

April 12, 2005, M r. V argas was ordered removed to M exico.

      M r. Vargas appealed the IJ’s ruling to the BIA, which affirmed, stating:

      The Colorado offense of contributing to the delinquency of a minor
      does not qualify categorically as “sexual abuse of a minor” because
      there are many ways of committing that offense, only some of which

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      involve sexual abuse. In such cases, we are authorized to consult a
      limited number of judicially-noticeable documents, such as a
      charging document or plea agreement, to determine whether an
      alien’s conviction under a facially overbroad statute was nevertheless
      a conviction for an aggravated felony. Cf. Shepard v. United States,
      125 S. Ct. 1254, 1260 (2005). The charging document in this case
      . . . makes it quite clear that the respondent’s contributing-to-the-
      delinquency-of-a-minor offense conforms to the generic concept of
      “sexual abuse of a minor” set forth at section 101(a)(43)(A).

Id. at 3. M r. Vargas seeks review of the BIA’s ruling. W e conclude that the BIA

properly determined that M r. Vargas committed an aggravated felony and

therefore affirm the removal order.

II.   D ISC USSIO N

      M r. Vargas challenges both his state-court conviction and its

characterization as an aggravated-felony conviction. He raises two due-process

claims with respect to his conviction. First, he asserts that his attorney during the

state criminal proceedings told him that pleading guilty to contributing to the

delinquency of a minor would not subject him to deportation. Because of this

misleading statement, he contends, he “has the right to withdraw his guilty plea.”

Aplt. Br. at 13. Second, he contends that it was unconstitutional for the state

court to accept his guilty plea because he continually maintained his innocence.

W hether these contentions have merit or not, we cannot address them. They are

beyond the scope of these proceedings. A “petitioner cannot collaterally attack

the legitimacy of his state criminal convictions in the deportation proceedings.

Thus, it is irrelevant for our purposes that an attorney might successfully have

                                         -4-
applied for the withdrawal of the guilty plea[ ] . . . .” Trench v. INS, 783 F.2d

181, 183 (10th Cir. 1986).

      W e can, however, review his contention that the offense of contributing to

the delinquency of a minor is not an aggravated felony. For several years our

review of removal orders based on aggravated felonies was extremely limited.

The Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.

No. 104-208, 110 Stat. 3009, enacted in 1996, added 8 U.S.C. § 1252(a)(2)(C),

stating:

             Notwithstanding any other provision of law . . . , no court shall
      have jurisdiction to review any final order of removal against an
      alien who is removable by reason of having comm itted a criminal
      offense covered in section 1181(a)(2) or 1227(a)(2)(A)(iii), (B), (C),
      or (D) of this title, or any offense covered by section
      1227(a)(2)(A)(ii) of this title for which both predictate offenses are,
      without regard to their date of commission, otherwise covered by
      section 1227(a)(2)(A)(i) of this title.

(emphasis added). In 2001 we held that this provision left us with jurisdiction

only to determine our jurisdiction; that is, once we determined that the petitioner

was (i) an alien (ii) deportable (iii) by reason of having comm itted an aggravated

felony, our jurisdiction was at an end and we would dismiss the petition for

review. See Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir. 2001). But the

REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, partially restored our

jurisdiction. Now, new subparagraph (D) of § 1252 (a)(2) overrides

subparagraph (C) so that we can review “constitutional claims or questions of



                                          -5-
law” raised in a petition for review of a removal order, even in an aggravated-

felony case. 8 U.S.C. § 1252(a)(2)(D ); see Papageorgiou v. Gonzales, 413 F.3d

356, 358 (3rd Cir. 2005) (“This now permits all aliens, including criminal aliens,

to obtain review of constitutional claims and questions of law upon the filing of a

petition for review . . . .”). Because M r. Vargas’s challenge to the

characterization of his conviction raises such a question of law, we have

jurisdiction to review it. See Ali v. U.S. Att’y Gen., 443 F.3d 804, 809 (11th Cir.

2006) (reviewing under subparagraph (D) a claim that guilty plea in state court

did not constitute a “conviction” for purposes of the IN A).

      The definition of aggravated felony in 8 U.S.C. § 1101(a)(43)(A) includes

“sexual abuse of a minor.” A lthough M r. Vargas challenges the BIA’s

classification of his conviction as sexual abuse of a minor, he does not challenge

the BIA’s definition of sexual abuse of a minor, which is borrowed from

18 U.S.C. § 3509. That statute defines sexual abuse to include “the employment,

use, persuasion, inducement, enticement, or coercion of a child to engage in, or

assist another person to engage in, sexually explicit conduct or the rape,

molestation, prostitution, or other form of sexual exploitation of children, or

incest w ith children.” 18 U.S.C. § 3509(a)(8); see M atter of Rodriguez-

Rodriguez, 22 I. & N. Dec. 991, 995-96 (BIA 1999) (adopting statutory definition

“as a guide”). Instead, he challenges whether the BIA could properly determine

that his offense involved the sexual abuse of a minor by looking to the allegations

                                          -6-
in the charging document rather than confining itself to the statutory definition of

contributing to the delinquency of a minor.

      M r. Vargas contends that to determine whether a prior conviction qualifies

as an aggravated felony, we must follow the “categorical approach” set forth in

Taylor v. United States, 495 U.S. 575, 600 (1990). See, e.g., Singh v. Ashcroft,

383 F.3d 144 (3d Cir. 2004) (applying Taylor to determine whether conviction for

“[u]nlawful sexual contact in the third degree” under Delaware law constituted

sexual abuse of a minor). In Taylor the issue w as w hether a state-court

conviction was for the predicate offense of “burglary” under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e), which imposes increased sentences for

those with prior convictions of certain felonies. The Supreme Court interpreted

burglary in the ACCA to refer to “generic burglary,” meaning an “unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime.” 495 U.S. at 599. Taylor said that to determine whether prior

convictions were for generic burglary, courts could “look[] only to the statutory

definitions of the prior offenses, and not to the particular facts underlying those

convictions.” Id. at 600. In other words, only if the state statute required all the

elements of generic burglary could the defendant’s sentence be enhanced under

the ACCA. Taylor acknowledged, however, that

      [t]his categorical approach . . . may permit the sentencing court to go
      beyond the mere fact of conviction in a narrow range of cases where
      a jury was actually required to find all the elements of generic

                                          -7-
      burglary. For example, in a State whose burglary statutes include
      entry of an automobile as well as a building, if the indictment or
      information and jury instructions show that the defendant was
      charged only with a burglary of a building, and that the jury
      necessarily had to find an entry of a building to convict, then the
      Government should be allowed to use the conviction for
      enhancement.

Id. at 602. In Shepard v. United States, 544 U.S. 13 (2005), the Court applied

this categorical approach to prior convictions resulting from guilty pleas rather

than jury verdicts. It again recognized that when the prior conviction was under a

nongeneric statute, courts could look to “the terms of the charging document, the

terms of a plea agreement or transcript 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.” Id. at 26.

      W e now apply the approach of Taylor/Shepard to this case. (Because we

deny relief to M r. Vargas under this approach, we need not decide whether the

constraints of Taylor and Shepard necessarily apply in resolving whether an

offense is an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).) Colorado

Revised Statutes § 18-6-701 states, “Any person who induces, aids, or encourages

a child to violate any federal or state law , municipal or county ordinance, or court

order commits contributing to the delinquency of a minor.” This statute

encompasses a multitude of crimes, one for each predicate offense that the child

might be urged to commit. That offense could be anything from jaywalking to

murder. But the specific predicate offense must be charged and proved as an

                                          -8-
element of the offense of contributing to the delinquency of a minor. See People

v. Corpening, 837 P.2d 249, 252 (Colo. App. 1992) (jury instruction on

contributing to the delinquency of a minor was erroneous “because it failed to

state precisely which law was violated by the minor”). That is, to convict a

defendant of contributing to the delinquency of a minor, the jury “necessarily

ha[s] to find,” Taylor, 495 U.S. at 602, a specified predicate offense that the

defendant induced, aided, or encouraged the child to violate.

      Hence, § 18-6-701 is like a statute that criminalizes both generic burglary

and other offenses. To determine whether a particular conviction under the

contributing-to-the-delinquency-of-a-minor statute was for sexual abuse of a

minor, Taylor and Shepard permit review of more than the definition of the

statutory offense. “W hen the underlying statute reaches a broad range of

conduct,” some of which would constitute an aggravated felony and some of

which would not, “courts resolve the ambiguity by consulting reliable judicial

records, such as the charging document, plea agreement, or plea colloquy.”

United States v. M artinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005).

Accordingly, it was appropriate for the BIA to look at the charging document to

see what law the defendant induced, aided, or encouraged the minor to break. In

this case the charging document referenced Colo. Rev. Stat. § 18-3-404(1)(a),

titled “Unlaw ful Sexual Contact,” w hich states that “[a]ny actor who knowingly

subjects a victim to any sexual contact commits unlawful sexual contact if . . .

                                         -9-
[t]he actor knows that the victim does not consent[.]” Thus, M r. Vargas was

charged with and convicted of encouraging a child to engage in nonconsensual

sexual contact. This is unquestionably sexual abuse of a minor. See 18 U.S.C.

§ 3509(a)(8). W e hold that M r. V argas was convicted of an aggravated felony.

III.   C ON CLU SIO N

       W e AFFIRM the order of the BIA .




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