NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHONESAVANH NAKHOKKONG, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 18-70936 

Agency No. A023-897-181 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted January 13, 2021

Pasadena, California

Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,** District 

Judge.

Phonesavanh Nakhokkong petitions for review of the Board of Immigration 

Appeals’ (BIA) decision affirming the immigration judge’s order removing him to 

Laos, based on Nakhokkong’s conviction of sexual conduct with a minor under 15 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

FILED

APR 15 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 4

years of age in violation of Arizona Revised Statutes §§ 13-705, 13-1405. Because 

Nakhokkong’s conviction categorically qualifies as a “crime of child abuse,” see 8 

U.S.C. § 1227(a)(2)(E)(i), we deny the petition. 

The BIA’s generic definition of a crime of child abuse includes “any offense 

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

that constitutes maltreatment of a child or that impairs a child’s physical or mental 

well-being.” Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008). 

We deferred to this definition in Jimenez-Juarez v. Holder, 635 F.3d 1169, 1171

(9th Cir. 2011).

Nakhokkong’s offense of conviction qualifies as a crime of child abuse 

under this definition. He pleaded guilty to an offense that required proof of the 

following elements: (1) the defendant “intentionally or knowingly engag[ed] in 

sexual intercourse or oral sexual contact” with a minor under 15 years of age and 

(2) the defendant was at least 18 years of age or was tried as an adult. Ariz. Rev. 

Stat. §§ 13-705(F), (Q)(1); 13-1405(A)–(B). The offense satisfies the mens rea

requirement of Velazquez-Herrera’s definition because it requires an intentional or 

knowing act. And the offense satisfies the actus reus requirement because sexual 

intercourse or oral sexual contact between an adult who is at least 18 years of age 

and a minor who is under 15 years of age “categorically constitutes maltreatment 
Page 3 of 4

of a child and impairs the child’s mental well-being.” Jimenez-Juarez, 635 F.3d at 

1171 n.2.

Nakhokkong contends that his offense of conviction is overbroad because 

the defendant need not be 18 years of age or older; in theory at least, the defendant

could have been younger than 18 but “tried as an adult.” Ariz. Rev. Stat. § 13-

705(F). That the defendant is under 18, however, does not necessarily mean that 

his conviction under §§ 13-705 and 13-1405 falls outside the generic offense. 

Instead, even for a defendant under 18, the conduct supporting the conviction 

could constitute “maltreatment of a child” in some circumstances and therefore fit 

the generic definition of a “crime of child abuse.” For an offense to be overbroad,

there must be a “realistic probability,” not merely “a theoretical possibility,” that a 

defendant will be convicted on facts that extend beyond the elements of the generic 

offense. Banuelos-Ayon v. Holder, 611 F.3d 1080, 1085 (9th Cir. 2010) (quoting 

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). “To show that realistic 

probability, an offender . . . must at least point to his own case or other cases in 

which the state courts in fact did apply the statute in the special (nongeneric) 

manner for which he argues.” Duenas-Alvarez, 549 U.S. at 193. Nakhokkong has 

not identified a single case in which an offender under 18 years of age was 

convicted under these statutes for sexual contact with a minor under 15 years of 
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age, let alone a case in which the offender’s conduct did not otherwise constitute 

“maltreatment of a child.” As a result, his overbreadth challenge fails.

The BIA correctly determined that Nakhokkong’s offense of conviction 

qualifies as a “crime of child abuse” under Velazquez-Herrera’s definition of that 

term. Accordingly, we need not resolve the parties’ dispute over whether the 

BIA’s decision in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), is also 

entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 842–43 (1984). 

The motion of Immigration Law Professors, Experts, and Clinicians for 

leave to file an amicus curiae brief (Dkt. 36) is granted. 

PETITION FOR REVIEW DENIED.