UNPUBLISHED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Petition dismissed in part and denied in part by unpublished per 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Unpublished opinions are not binding precedent in this circuit. 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 minor1 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 
12 

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.