Khaimraj Singh v. Atty Gen USA ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-17-2004
Khaimraj Singh v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-1532
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6th & Chestnut Streets
PRECEDENTIAL 656 Public Ledger Building
Philadelphia, PA 19106
IN THE UNITED STATES COURT OF Attorneys for Petitioner
APPEALS
FOR THE THIRD CIRCUIT
______________________ PETER D. KEISLER
Assistant Attorney General, Civil
NO. 03-1532 Division
______________________ DAVID V. BERNAL
Assistant Director
ANTHONY P. NICASTRO (ARGUED)
KHAIMRAJ SINGH Trial Attorney
CHRISTOPHER C. FULLER
Petitioner LYLE D. JENTZER
United States Department of Justice
v. Office of Immigration Litigation
Ben Franklin Station
JOHN ASHCROFT, ATTORNEY P.O. Box 878
GENERAL Washington, DC 20044
OF THE UNITED STATES OF
AMERICA Attorneys for Respondent
______________________
________________________
On Petition for Review of Orders of the OPINION OF THE COURT
Board of Immigration Appeals ________________________
(Board No. A41-930-720)
______________________
BECKER, Circuit Judge.
Khaimraj Singh, a Guyanan national,
Argued June 28, 2004 petitions for review of a final order of
removal grounded upon the determination
Before: AMBRO, BECKER and that he is an aggravated felon on account
GREENBERG, Circuit Judges of his conviction for touching the breast of
his cousin, who was under sixteen years of
(Filed September17, 2004) age. The offense of conviction was 11
Del. C. § 767, “Unlawful sexual contact in
JAMES J. ORLOW the third degree,” which provides:
DAVID KAPLAN (ARGUED)
A person is guilty of unlawful
Orlow & Orlow
sexual contact in the third degree III.B. As will appear, a pattern emerges,
when the person has sexual contact causing us to conclude that, while the
with another person or causes the formal categorical approach of Taylor
victim to have sexual contact with presumptively applies in assessing whether
the person or a third person and the an alien has been convicted of an
person knows that the contact is aggravated felony, in some cases the
either offensive to the victim or language of the particular subsection of 8
occurs without the victim’s U.S.C. § 1101(a)(43) at issue will invite
consent. inquiry into the underlying facts of the
case, and in some cases the disjunctive
The question presented on this petition
phrasing of the statute of conviction will
for review—whether Singh has been
similarly invite inquiry into the specifics of
convicted of the aggravated felony of
the conviction. But in this case, neither 8
“sexual abuse of a minor,” 8 U.S.C.
U.S.C. § 1101(a)(43)(A) nor 11 Del. C.
§ 1101(a)(43)(A)—turns on whether we
§ 767 invite inquiry into the facts
must apply the so-called “formal
underlying Singh’s conviction. Therefore,
categorical approach” announced in Taylor
because Taylor’s formal categorical
v. United States, 495 U.S. 575 (1990).
approach applies to Singh’s case, we will
Under that approach, an adjudicator “must
grant the petition for review.
look only to the statutory definitions of the
prior offenses,” and may not “consider
other evidence concerning the defendant’s
I. Factual Background and Proceedings
prior crimes,” including, “the particular
Before the Immigration Judge and Board
facts underlying [a] conviction[].” Id. at
of Immigration Appeals
600. If we apply the formal categorical
approach, Singh has not been convicted of Singh is a native and citizen of Guyana.
the aggravated felony of sexual abuse of a He was admitted to the United States in
minor because § 767 does not contain an June 1988 as an immigrant. About ten
element specifying the age of the victim. years later, he touched the breast of his
If we do not apply the formal categorical cousin, who was under the age of sixteen.
approach, Singh has been convicted of the For this, the State of Delaware charged
aggravated felony of sexual abuse of a him under 11 Del. C. § 768, “Unlawful
minor because the victim of his sex sexual contact in the second degree.”
offense was, indeed, a minor. Apparently as part of a plea agreement
with the state prosecutor, Singh pled guilty
Our jurisprudence in the aggravated
to the lesser included offense of 11 Del. C.
felony area— twelve cases in all—is not a
§ 767, “Unlawful sexual contact in the
seamless web. In order to resolve the
third degree.” On May 19, 1998, the
appeal we have found it necessary to
Delaware Superior Court imposed a one-
analyze and synthesize this body of case
year suspended sentence.
law, and we do so at length, see infra Part
2
This conviction, the government
asserts, renders Singh an aggravated felon
under 8 U.S.C. § 1101(a)(43)(A), which
property derived from
provides that “sexual abuse of a minor” is
specific unlawful activity)
an aggravated felony. 1 Under 8
if the amount of the funds
exceeded $10,000;
(E) an offense described
1
“Sexual abuse of a minor” is but one in–
of the dozens of aggravated felonies (i) section 842(h) or (i) of
catalogued in the twenty-one subsections Title 18, or section 844(d),
of 8 U.S.C. § 1101(a)(43). Because the (e), (f), (g), (h), or (i) of
discussion that follows in this opinion that title (relating to
draws on many of those subsections, we explosive materials
rescribe the statute in full for the offenses);
convenience of the reader: (ii) section 922(g)(1), (2),
(3), (4), or (5), (j), (n), (o),
The term “aggravated felony” means— (p), or (r) or 924(b) or (h)
(A) murder, rape, or sexual of Title 18 (relating to
abuse of a minor; firearms offenses); or
(B) illicit trafficking in a (iii) section 5861 of Title
controlled substance (as 26 (relating to firearms
defined in section 802 of offenses);
Title 21), including a drug (F) a crime of violence (as
trafficking crime (as defined in section 16 of
defined in section 924(c) of Title 18, but not including
Title 18); a purely political offense)
(C) illicit trafficking in for which the term of
firearms or destructive imprisonment at least one
devices (as defined in year;
section 921 of Title 18) or (G) a theft offense
in explosive materials (as (including receipt of stolen
defined in section 841(c) of property) or burglary
that title); offense for which the term
(D) an offense described in of imprisonment at least
section 1956 of Title 18 one year;
(relating to laundering of (H) an offense described in
monetary instruments) or section 875, 876, 877, or
section 1957 of that title 1202 of Title 18 (relating
(relating to engaging in to the demand for or
monetary transactions in receipt of ransom);
3
(I) an offense described in in—
section 2251, 2251A, or (i) section 793 (relating to
2252 of Title 18 (relating gathering or transmitting
to child pornography); national defense
(J) an offense described in information), 798 (relating
section 1962 of Title 18 to disclosure of classified
(relating to racketeer information), 2153
influenced corrupt (relating to sabotage) or
organizations), or an 2381 or 2382 (relating to
offense described in treason) of Title 18;
section 1084 (if it is a (ii) section 421 of Title 50
second or subsequent (relating to protecting the
offense) or 1955 of that identity of undercover
title (relating to gambling intelligence agents); or
offenses), for which a (iii) section 421 of Title 50
sentence of one year (relating to protecting the
imprisonment or more may identity of undercover
be imposed; agents);
(K) an offense that— (M) an offense that—
(i) relates to the owning, (i) involves fraud or deceit
controlling, managing, or in which the loss to the
supervising of a victim or victims exceeds
prostitution business; $10,000; or
(ii) is described in section (ii) is described in section
2421, 2422, or 2423 of 7201 of Title 26 (relating
Title 18 (relating to to tax evasion) in which the
transportation for the revenue loss to the
purpose of prostitution) if Government exceeds
committed for commercial $10,000;
advantage; or (N) an offense described in
(iii) is described in any of paragraph (1)(A) or (2) of
sections 1581-1585 or section 1324(a) of this title
1588-1591 of Title 18 (relating to alien
(relating to peonage, smuggling), except in the
slavery, involuntary case of a first offense for
servitude, and trafficking which the alien has
in persons); affirmatively shown that
(L) an offense described the alien committed the
4
offense for the (and no other individual) to
purpose of assisting, violate a provision of this
abetting, or aiding chapter;
only the alien's (Q) an offense relating to a
spouse, child, or failure to appear by a
parent (and no other defendant for service of
individual) to sentence if the underlying
violate a provision offense is punishable by
of this chapter imprisonment for a term of
(O) an offense described in 5 years or more;
section 1325(a) or 1326 of (R) an offense relating to
this title committed by an commercial bribery,
alien who was previously counterfeiting, forgery, or
deported on the basis of a trafficking in vehicles the
conviction for an offense identification numbers of
described in another which have been altered
subparagraph of this for which the term of
paragraph; imprisonment is at least
(P) an offense (i) which one year;
either is falsely making, (S) an offense relating to
forging, counterfeiting, obstruction of justice,
mutilating, or altering a perjury or subornation of
passport or instrument in perjury, or bribery of a
violation of section 1543 of witness, for which the term
Title 18 or is described in of imprisonment is at least
section 1546(a) of such one year;
title (relating to document (T) an offense relating to a
fraud) and (ii) for which failure to appear before a
the term of imprisonment is court pursuant to a court
at least 12 months, except order to answer to or
in the case of a first offense dispose of a charge of a
for which the alien has felony for which a sentence
affirmatively shown that of 2 years' imprisonment or
the alien committed the more may be imposed; and
offense for the purpose of (U) an attempt or
assisting, abetting, or conspiracy to commit an
aiding only the alien's offense described in this
spouse, child, or parent paragraph.
5
U.S.C. § 1227(a)(2)(A)(iii), an alien designated in the statute, has indeed
convicted of an aggravated felony is . . . engaged in sexual abuse of a
removable. The Immigration Judge (IJ) minor as defined in Title 18.
agreed with the government’s position,
The Board of Immigration Appeals
noting that “the sentencing order of the
(BIA) affirmed the IJ’s decision without
[Delaware] Court reflects clearly, under
opinion. See 8 C.F.R. § 1003.1(e)(4).2
special conditions of probation, ‘note:
Under 8 U.S.C. § 1252(a)(2)(C) and our
victim is under 16 years of age.’” Citing
decision in Drakes v. Zimski, 240 F.3d
18 U.S.C. § 3509(2) (which defines the
246, 247 (3d Cir. 2001), we have
age of majority as 18), the IJ explained
jurisdiction to consider our jurisdiction
that “the victim was under 16 years of age
over this timely petition for review of a
and, consequently, would be classified as
final decision of the BIA.
a minor.” The IJ then looked to 18 U.S.C.
§ 3509(8) for the definition of “sexual
abuse,” which includes “sexually explicit
II. Standard of Review
conduct”:
This case turns on a question of
The term sexually explicit conduct
statutory interpretation—specifically, the
includes touching of one’s breast
meaning and application of the aggravated
under [18 U.S.C. § 3509(9)(A)].
felony of “sexual abuse of a minor.” As
Consequently, the Court finds that
we noted in Patel v. Ashcroft, 294 F.3d
the respondent has engaged in
sexually explicit conduct of a child.
Likewise, the Court would find that
2
the respondent’s conviction, Singh also challenges the BIA’s
notwithstanding the fact that the procedure for affirmance without
age of the victim is not specifically opinion. We approved these
streamlining regulations in Dia v.
Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en
The term applies to an offense described banc), which was decided after Singh
in this paragraph whether in violation of filed his opening brief. Although Dia
Federal or State law and applies to such may not dispose of Singh’s
an offense in violation of the law of a nondelegation and judicial economy
foreign country for which the term of arguments against the streamlining
imprisonment was completed within the regulations, those arguments would be
previous 15 years. Notwithstanding any better addressed to the Court en banc. At
other provision of law (including any all events, our resolution of this case on
effective date), the term applies alternative grounds avoids the need to
regardless of whether the conviction was confront the novel questions raised in
entered before, on, or after September Singh’s challenge to the streamlining
30, 1996. regulations.
6
465, 467 (3d Cir. 2002), “there is some Board’s interpretation, so long as it
confusion surrounding the proper standard is reasonable. Id.of review in cases such as this.” Patel,
Lee v. Ashcroft, 368 F.3d 218, 222 (3d Cir.
which was an aggravated felony case,
2004).
discusses at length the role of Chevron
deference in cases interpreting the Canvassing the dozen aggravated
Immigration and Nationality Act (INA) felony cases decided by this Court, one
generally, and the aggravated felony indisputable and surprising pattern
statute of 8 U.S.C. § 1101(a)(43) in emerges: We have never affirmatively
particular. In our most recent aggravated deferred to an interpretation by the BIA (or
felony case, we described the scope of our an IJ) of 8 U.S.C. § 1101(a)(43), i.e., of
Chevron deference thus: whether the crime at issue constitutes an
aggravated felony. Many times we have
“The first step in interpreting a
not even discussed Chevron deference to
statute is to determine ‘whether the
the BIA, irrespective of whether we
language at issue has a plain and
ultimately agreed or disagreed with the
unambiguous meaning with regard
Board. See Munroe v. Ashcroft, 353 F.3d
to the particular dispute in the
225 (3d Cir. 2003); Wilson v. Ashcroft,
case.’” [Valansi v. Ashcroft, 278
350 F.3d 377 (3d Cir. 2003); Bovkun v.
F.3d 203, 209 (3d Cir. 2002)]
Ashcroft, 283 F.3d 166 (3d Cir. 2002);
(quoting Marshak v. Treadwell,
United States v. Graham, 169 F.3d 787 (3d
240 F.3d 184, 192 (3d Cir. 2001)).
Cir. 1999). We also have suggested that
If the statutory meaning is clear,
we conduct de novo review because the
our inquiry is at an end. Id. If the
question goes to our jurisdiction. See
statutory meaning is not clear, we
Nugent v. Ashcroft, 367 F.3d 162, 165 (3d
must try to discern Congress’ intent
Cir. 2004); Valansi, 278 F.3d at 207-08
using the ordinary tools of statutory
(citing cases). Twice we have declined to
construction. See INS v.
reach the question of deference because
Cardoza-Fonseca, 480 U.S. 421,
we concluded that our result would be the
447-48 (1987). “If, by employing
same on deferential review as it would on
traditional tools of statutory
plenary review. See Patel, 294 F.3d at
construction, we determine that
468; Drakes v. Zimski, 240 F.3d 246, 251
Congress’ intent is clear, that is the
(3d Cir. 2001). In two cases, we
end of the matter.” Valansi, 278
acknowledged that we must defer to the
F.3d at 208 (quoting Bell v. Reno,
BIA if the statute’s meaning is ambiguous,
218 F.3d 86, 90 (2d Cir. 2000)). If
but both times we held that the BIA’s
we are unable to discern Congress’
interpretation conflicted with the statute’s
intent using the normal tools of
plain meaning. See Lee, 368 F.3d at 224-
statutory construction, we will
25; Valansi, 278 F.3d at 208. In yet
generally give deference to the
another case we affirmatively held that the
7
BIA’s interpretation of 18 U.S.C. § 16, expertise in a meaningful way’ but
which is incorporated by reference in the presents instead ‘a pure question of
aggravated felony statute, 8 U.S.C. statutory construction for the courts to
§ 1101(a)(43)(F), was not subject to the decide.’” (quoting Sandoval v. Reno, 166
general principles of Chevron, but that, F.3d 225, 239-40 (3d Cir. 1999) (quoting
even if it was, the specific interpretation at INS v. Cardoza-Fonseca, 480 U.S. 421,
issue was unreasonable and therefore not 446 (1987))) (alteration in original)).
entitled to deference. See Francis v. Reno, Second, we have been mindful, as in
269 F.3d 162, 168 & n.8 (3d Cir. 2001). Nugent, 367 F.3d at 165, and Valansi, 278
Finally, two decisions appear to be more F.3d at 207-08, that although the statute is
deferential to the BIA. In Gerbier v. part of Title 8, and not Title 28, of the
Holmes, 280 F.3d 297, 310 (3d Cir. 2002), United States Code, it nonetheless controls
we found the BIA’s interpretation o u r j u r i s d ic t i o n (via 8 U.S . C .
“persuasive” (hardly a strong general § 1252(a)(2)(C)) and we normally consider
endorsement), while in Steele v. Blackman, jurisdictional matters de novo.
236 F.3d 130, 133 (3d Cir. 2001), we
Moreover, here the IJ offered no reason
stated that “if a statute administered by the
for his decision not to apply Taylor’s
INS is ambiguous, and the BIA has
categorical approach; the BIA, by
provided a reasonable interpretation of its
affirming without opinion, gave no
language, we must simply ask whether the
considered and authoritative agency-wide
BIA’s construction is a permissible one.”
interpretation of the statute; and now on
Even in Steele, however, we looked more
petition for review, the government’s
closely into the BIA’s interpretation,
entire position on deference consists of a
finding it “troublesome,” bu t we
single citation to an admittedly vague
“assume[d] its validity” because even the
comment from this Court in Patel, 294
BIA’s own interpretation of the statute did
F.3d at 467 (“[S]ome deference is still
not support its disposition of the case. 236
required under Chevron, even though we
F.3d at 136 & n.5.
are reviewing a purely legal question such
Why then have we never found it as the BIA’s interpretation of a criminal
necessary and appropriate to defer to the statute.”). Under all these circumstances,
BIA’s or IJ’s interpretation of 8 U.S.C. we conclude that the IJ’s summary
§ 1101(a)(43)? First, as we explained in application of § 1101(a)(43)(A)—it can
Francis, the interpretation and exposition hardly be described as a full-blown
of criminal law is a task outside the BIA’s reasoned interpretation— is not entitled to
sphere of special competence. See 269 deference. As we have done in previous
F.3d at 168; see also Drakes, 240 F.3d at cases, however, we will here expressly
250 (“Chevron deference is not required reserve decision on whether some BIA
where the interpretation of a particular interpretations of § 1101(a)(43) are
statute does not ‘implicate[] agency entitled to deference.
8
III. Discussion 601, the Taylor Court adopted the “formal
categorical approach.”
Some of our cases interpreting 8 U.S.C.
§ 1101(a)(43) have employed the rule of The facts of Taylor provide an apt
Taylor, described there as the “formal illustration of the principle at work: Taylor
categorical approach,” 495 U.S. at 600. had been twice convicted of second degree
See, e.g., Francis, 269 F.3d at 171-72. burglary in Missouri. Under Missouri law,
Taylor addressed the meaning and second degree burglary encompassed
application of the term “burglary” in 18 several discrete sets of statutory elements.
U.S.C. § 924(e), which imposes enhanced As the Court explained, “All seven
sentences on defendants convicted under offenses required entry into a structure, but
the unlawful-possession-of-a-firearm they varied as to the type of structure and
statute, 18 U.S.C. § 922(g), when the the means of entry involved.” Id. at 578
defendant has three prior convictions for n.1. Compared with the definition of
specified offenses, including “burglary.” “generic burglary” adopted by the
Taylor’s analysis can be readily imported Court—“convict[ion] of any crime,
here, because 8 U.S.C. § 1101(a)(43) is regardless of its exact definition or label,
similar to 18 U.S.C. § 924(e) in that it too having the basic elements of unlawful or
enumerates offenses, conviction of which unprivileged entry into, or remaining in, a
places an alien in the category of building or structure, with intent to commit
“aggravated felon.” Taylor put the a crime,” id. at 599—not all variants of
“general issue” in interpreting this sort of Missouri second degree burglary qualified
statute as follows: under the federal sentencing enhancement
statute. Since the formal categorical
whether the sentencing court in
approach does not permit looking beyond
applying § 924(e) must look only to
the literal elements of the statute (i.e., to
the statutory definitions of the prior
the facts supporting the convictions), the
offenses, or whether the court may
Court could not say that Taylor had been
consider other evidence concerning
p r e v i o u s l y c o n v i c t ed o f c ri m es
the defendant’s prior crimes. The
encompassing the elements of generic
Courts of Appeals uniformly have
burglary. See id. at 602. Accordingly, the
held that § 924(e) mandates a
Court remanded for further development
formal categorical approach,
on the question of “which of [the M issouri
looking only to the statutory
second degree burglary] statutes were the
definitions of the prior offenses,
bases for Taylor’s prior convictions.” Id.
and not to the particular facts
The inquiry was limited to the statute of
underlying those convictions.
conviction, however, as the formal
495 U.S. at 600. Citing “the practical categorical approach “generally requires
difficulties and potential unfairness [to a the trial court to look only to the fact of
defendant] of a factual approach,” id. at conviction and the statutory definition of
9
the prior offense.” Id. The Taylor Court unnecessary for our purposes to give a
also acknowledged that, under limited comprehensive definition of “sexual abuse
circumstances, resort to the charging of a minor,” and we reserve decision on
instrument may be permissible: “[The that question. It is sufficient to say that
formal categorical approach] may permit “sexual abuse of a minor” entails some
the sentencing court to go beyond the mere conduct involving a minor, i.e., someone
fact of conviction in a narrow range of under the age of eighteen.
cases where a jury was actually required to
This is enough to defeat the
find all the [necessary] elements.” Id.government’s argument, for § 767 says
The questions presented in this case are nothing whatsoever about the age of the
readily apparent: Does Taylor’s formal victim. In full, the statute under which
categorical approach apply to “sexual Singh was convicted reads:
abuse of a minor” under 8 U.S.C.
A person is guilty of unlawful
§ 1101(a)(43)(A), and if it does, does a
sexual contact in the third degree
conviction under 11 Del. C. § 767
when the person has sexual contact
nonetheless qualify as a conviction for
with another person or causes the
sexual abuse of a minor? We find it more
victim to have sexual contact with
efficient to address the second question
the person or a third person and the
first.
person knows that the contact is
A. Under the Formal Categorical either offensive to the victim or
Approach of Taylor, Does a Conviction occurs without the victim’s
Under consent.
11 Del. C. § 767 Qualify as a Conviction Since a finding of the age of the victim is
for “Sexual Abuse of a Minor”? not required for conviction, § 767 does not
appear to be an aggravated felony (or at
The government first argues that, even
least not the aggravated felony of sexual
under the formal categorical approach, a
abuse of a minor).
conviction under 11 Del. C. § 767 is a
conviction for sexual abuse of a minor. To In the face of the literal and
evaluate this argument, we follow the unambiguous text of § 767, the
Supreme Court’s two-step approach in government argues that the statute
Taylor, where it first construed the term nonetheless criminalizes sexual abuse of a
“burglary” in the federal statute, 495 U.S. minor. Of course it is irrelevant that
at 590-99, and then compared the elements sexually abusing a minor may be sufficient
of the Missouri statutes to the federal for conviction under the statute; what
definition, id. at 602. The IJ looked to 18 matters is whether such conduct is
U.S.C. § 3509(2), (8), and (9) to define necessary for such a conviction. The
“sexual abuse of a minor.” While we have government seems to argue that the overall
no quarrel with this approach, it is statutory scheme in Delaware establishes
10
that sexual abuse of a minor is necessary statutory scheme. For example, 11 Del. C.
for a conviction under § 767. Even §§ 767-773 are the gamut of traditional sex
assuming that appeals to statutes other offenses under Delaware law, from
than the statute of conviction are within misdemeanor sexual assault to first degree
the bounds of the formal categorical rape. Adopting the government’s
approach, we still cannot agree with the argument would imply not only that § 767
government’s position. is an offense against a child, but also that
§§ 768-773 are as well. This would have
10 Del. C. § 922(a)(19) provides the
the astonishing result that all sex offenses
Delaware Family Court with exclusive
in Delaware (as Delaware does not define
original crimin al jurisdic tion over
any general sex offenses outside this list)
“unlawful sexual conduct in the third
require that the victim be a child. These
degree against a child under 11 Del. C.
problems only reinforce our conclusion
§ 767.” Similarly, 11 Del. C.
from the plain meaning of the statute: 11
§ 1112(b)(4)(A) defines “sexual offender”
Del. C. § 767 does not include as an
as a person who has been convicted of
element that the victim be a minor, and
“any sexual offense upon a child under 16
accordingly, under the formal categorical
years of age under § 767, § 768, § 769,
approach of Taylor, Singh does not stand
§ 770, § 771, § 772, § 773 . . . .” The
convicted of sexual abuse of a minor.
government would have us read these
provisions as definitions of § 767. We do B. Does the Formal Categorical
not agree. There are at least two problems Approach of Taylor Apply to the
with the government’s approach. First, Aggravated Felony of “Sexual Abuse of
“against a child” and “upon a child,” in 10 a Minor”?
Del. C. § 922(a)(19) and 11 Del. C.
Because the IJ’s decision cannot stand
§ 1112(b)(4)(A), respectively, are better
if we apply Taylor’s formal categorical
read not as definitions of Del. Code Ann.
approach, we mu st turn to the
tit. 11, § 767, but rather as qualifications or
government’s fallback argument that the
limitations on the§ 767 convictions that
formal categorical approach does not apply
are intended to be within the scope of the
to “sexual abuse of a minor” under 8
jurisdictional and sex offender statutes.
U.S.C. § 1101(a)(43)(A ). If the
Unless these phrases are read as qualifiers,
government is free from the strictures of
they are superfluous—why not, in
the formal categorical approach, we would
§ 1112(b)(4)(A), simply omit “upon a
simply review the IJ’s decision under the
child under 16 years of age” if the statutes
deferential substantial evidence standard,
referred to already incorporate such a
evaluating whether the factual record
notion?
before the IJ could fairly support the
A second and independent problem conclusion that Singh was convicted of
with the government’s proposed reading is sexual abuse of a minor. See Dia, 353
that it leads to absurdities elsewhere in the F.3d at 247-49 (describing the substantial
11
evidence standard). As the record supports categorical approach.3 Thus, in the
this conclusion—indeed, Singh concedes sections that follow, we address the other
that, as a factual matter, he was convicted nine cases, which all (explicitly or
for touching the breast of his minor implicitly) take a position on Taylor’s
cousin—we would dismiss the petition if applicability.
the formal categorical approach did not
a. Cases employing the formal
apply here. But for the reasons that
categorical approach of Taylor
follow, we conclude that the formal
categorical approach does apply. We expressly invoked and applied
Taylor’s formal categorical approach in
1. Our prior aggravated felony
Francis. There, the question presented
jurisprudence
was whether “a state misdemeanor
We have decided a dozen cases conviction for vehicular homicide is a
implicating 8 U.S.C. § 1101(a)(43), and at ‘crime of violence’ within the meaning of
times we have applied the formal 18 U.S.C. § 16,” 269 F.3d at 164, which is
categorical approach of Taylor, and at incorporated by reference in the definition
other times we have not. (In the latter of “aggravated felony,” 8 U.S .C.
instances, though we have never explicitly § 1101(a)(43)(F). We concluded that the
considered and rejected Taylor’s approach,
our decisions cannot be fairly read as
employing the formal categorical 3
Two of these cases—Lee and
approach.) The question here, then, is
Patel—turn on whether certain federal
whether sexual abuse of a minor under 8
criminal offenses are directly identified
U.S.C. § 1101(a)(43)(A) is more akin to
in 8 U.S.C. § 1101(a)(43). See Lee, 368
those provisions of 8 U.S.C. § 1101(a)(43)
F.3d at 224 (holding that 8 U.S.C.
to which we have applied the formal
§ 1101(a)(43)(M)(ii) is the exclusive
categorical approach, or to those to which
category for federal tax offenses, and
we have not. We begin with a
thus that federal tax offenses are not
comprehensive survey of this Court’s
covered by 8 U.S.C.§ 1101(a)(43)
aggravated felony jurisprudence. The
(M)(i)); Patel, 294 F.3d at 470 (holding
United States Supreme Court has not
that the reference in 8 U.S.C.
decided any case involving 8 U.S.C.
§ 1101(a)(43)(N) to “alien smuggling”
§ 1101(a)(43), so we consider only our
does not overcome the specific cross-
own cases in this survey. Three of the
reference in that section to statute
twelve cases we have decided, see supra
criminalizing alien harboring, of which
Part II, do not even implicitly involve the
petitioner had been convicted). The third
question whether to use Taylor’s formal
case, Graham, resolves a scrivener’s
error in 8 U.S.C. § 1101(a)(43)(G) and
implicates Taylor only indirectly. We
return to Graham infra Part III.B.1.c.
12
petitioner’s conviction was not a crime of continued:
violence under 18 U.S.C. § 16, and
On its face, homicide by vehicle is
therefore that he was not an aggravated
certainly not an offense that “by its
felon. Although we were able to reach this
nature, involves a substantial risk
result on an analysis of 18 U.S.C. § 16 that
that physical force against the
did not implicate Taylor, Francis, 269
person or property of another may
F.3d at 168-71, we also held in the
be used in the course of committing
alternative that, under the formal
the offense.” 18 U.S.C. § 16(b).
categorical approach, Francis’s conviction
The BIA acknowledged that § 3732
did not satisfy 18 U.S.C. § 16(b)’s
involves a range of behavior that
requirement that a crime of violence be
“may or may not” fall under
one that, “by its nature, involves a
§ 16(b).
substantial risk that physical force against
the person or property of another may be The categorical approach does “permit
used in the course of committing the the sentencing court to go beyond the mere
offense.” fact of conviction in a narrow range of
cases where a jury was actually required to
We explained that under the formal
find all the elements of [the relevant]
categorical approach,
generic [offense].” Taylor, 495 U.S. at
we must look to Pennsylvania’s 602. Here, the criminal complaint stated:
definition of homicide by vehicle. .
Southbound on Route 95 in the
. . 75 Pa. C.S.A. § 3732 provides:
vicinity of Comly Street the
Any person who unintentionally defendant unintentionally caused
causes the death of another person the death of the decedent # 1 Harry
while engaged in the violation of B. Rutter, Driver of vehicle # 1, by
any law of this Commonwealth or operating a 198 5 Chevrolet
municipal ordinance applying to the Caprice, Pa. License ADB 7268,
operation or use of a vehicle or to while his operating privilege was
the regulation of traffic except suspended, and in such a manner as
section 3731 (relating to driving to cause a eight vehicle accident
under influence of alcohol or between four cars, one van, and
controlled substance) is guilty of three tractor trailers and a near miss
homicide by veh icle, a by a tanker truck carrying 8000
misdemeanor of the first degree, gallons of gasoline, causing the
when the violation is the cause of deaths of two people and injuring a
death. third.
75 Pa. C.S.A. § 3732. (emphasis added).
Francis, 269 F.3d at 171-72. We Francis was therefore charged with the
13
“unintentional” conduct, of operating an the BIA in applying 8 U.S .C .
automobile in such a manner as to cause a § 1101(a)(43)(B), which categorizes as an
car accident resulting in two deaths. aggravated felony “illicit trafficking in a
controlled substance (as defined in section
Id. at 172 (some citations omitted).
802 of Title 21), including a drug
As Francis’s predicate “violation of trafficking crime (as defined in section
[the] law” for purposes of 75 Pa. Cons. 924(c) of Title 18).” In Steele, our first
Stat. § 3732 was driving with a suspended case to examine the hypothetical federal
license, and not something that “by its felony approach, we explained it this way:
nature, involves a substantial risk [of]
Section 924(c)(2) of Title 18
physical force,” 18 U.S.C. § 16(b), we
defines “drug trafficking crime” as
could not agree with the BIA that his
meaning “any felony punishable
offense was a crime of violence.
under the Controlled Substance
Significantly, we disagreed with the BIA’s
Act[,] . . . the Controlled Substance
conclusion that Francis’s conduct involved
Import and Export Act[s] . . . or the
a substantial risk of physical force because
Maritime Drug Law Enforcement
it was reckless, stating: “It may well have
Act . . . .” Accordingly, the BIA
been [reckless]. However, recklessness
finds within [this] category of
was not charged, and he was not convicted
aggravated felony convictions any
of an offense requiring that mens rea.”
federal conviction for a violation of
Francis, 269 F.3d at 173. In sum, the BIA
one of the specified statutes that is
reasoned from the facts supporting
a felony conviction under federal
Francis’s conv iction, but we felt
law, i.e., a conviction for an offense
constrained to grant the petition for review
punishable by imprisonment for
by applying Taylor’s formal categorical
over one year. See 18 U.S.C.
approach and confining our inquiry to the
§ 3559. M ore relevant for present
statute of conviction, illuminated by the
purposes, the BIA understands this
charging instrument.
. . . category to encompass
Three other cases—Steele, Gerbier, convictions for state offenses,
and Wilson—apply Taylor through their however characterized by the state,
use of the “hypothetical federal felony” (or
“hypothetical federal conviction”)
approach.4 This method was developed by qualifies as well. See Gerbier, 280 F.3d
at 313. In practice, “illicit trafficking in
a controlled substance” works very much
4
The hypothetical federal felony like “crime of violence” (as discussed
approach is only one “route” to supra in Francis), so we will discuss it
classification as an aggravated felony no further than to say that our decisions
under 8 U.S.C. § 1101(a)(43)(B); “illicit involving it are consistent with Taylor’s
trafficking in a controlled substance” categorical approach.
14
if those offenses would which an alien ‘could be convicted
be “punishable” under and punished’ under the cited
o n e o f t h e t h re e federal laws.” Matter of Barrett[,
specified federal statutes 20 I. & N. Dec. 171, 174 (BIA
if federally prosecuted, 1990)].
so long as the
Steele, 236 F.3d at 135-36 (some
hypoth etical federa l
alterations in original). The hypothetical
conviction would be a
federal felony approach is essentially the
felony under federal law,
formal categorical approach of Taylor, as
i.e., would be punishable
applied to a specific federal statute.
by a term of
imprisonment of over Though we did not actually approve the
one year. hypothetical federal felony approach in
Steele, we accepted it arguendo, because
This hypothetical federal
even it did not support the BIA’s
conviction approach “require[s] a
disposition—the proposed hypothetical
comparison between the elements
federal felony required a finding of an
of the [state] drug offense and [the
additional, prior drug conviction, a prior
elements of] a federal drug
conviction that, though existing in fact,
provision referenced in 18 U.S.C.
had not been proven in the course of
§ 924(c)(2) . . . .” Matter of Davis[,
Steele’s state criminal proceedings. Id. at
20 I. & N. Dec. 536, 544 (BIA
137. We thus granted Steele’s petition for
1992)]. Since the basis for the
review. A little over a year later, in
incapacities under the Immigration
Gerbier, we did adopt the BIA’s
Act is “convict[ion] of an
hypothetical federal felony approach to 8
aggravated felony,” 8 U.S.C.
U.S.C. § 1101(a)(43)(B). 280 F.3d at 308-
§ 1229b(a), the Board looks to what
11. But as in Steele, Gerbier’s status as a
t h e c o n v icting court m u st
recidivist had not been litigated or
necessarily have found to support
otherwise decided in his state criminal
the conviction and not to other
proceeding, and we therefore granted his
conduct in which the defendant
petition for review. Id. at 317.
may have engaged in connection
with the offense. Thus where, as In Wilson, 350 F.3d 377, the third case
here, the Service is relying on a in our hypothetical-federal-felony trilogy,
state misdemeanor conviction, the we again granted the petition for review.
requirements of this . . . category of There, the proposed hypothetical federal
“aggravated felony convictions” are felony— 21 U.S.C. § 841(a)(1), which is
“satisfied [only] by proving a the general federal felony criminal
conviction that includes all the prohibition on unauthorized manufacture,
elements of [a felony] offense for distribution, and possession with intent to
15
distribute of controlled analogous to a federal felony, we look to
substances—included an escape clause the elements of the statutory state offense,
making distribution of “a small amount of not to the specific facts.” Wilson, 350 F.3d
marihuana for no remuneration” a at 381. “Since the state statutory elements
misdemean or. S e e 21 U .S.C . would be satisfied by proof of either
§ 841(b)(1)(D) and (b)(4). Wilson had distribution or possession with intent to
possessed with the intent to distribute a distribute, we cannot draw the federal
small amount of marijuana, a misdemeanor analogy by presuming that the statute only
under N.J. Stat. Ann. § 2C:35-5(b)(11). 5 covers possession.” Id. at 382. Wilson
Wilson, 350 F.3d at 381. He argued to this may thus represent the zenith of our
Court that, because his state conviction did faithfulness to Taylor.
not necessarily imply that he sought
Two other cases also follow Taylor’s
remuneration for his distribution, it could
formal categorical approach— though only
not therefore be shown that his conduct
silently (in the case of Bovkun) or weakly
would have been a felony under federal
(in the case of Drakes). Although we did
controlled substance law—he might have
not cite Taylor in Bovkun, we plainly
been able to invoke the escape clause. Id.followed the formal categorical approach.
The government countered that There, the petitioner had been convicted of
Wilson’s conviction was for possession, ma king te rr or istic thr ea ts u n d er
not distribution (though both distribution Pennsylvania law,6 and the government
and possession-with-intent were included
in New Jersey’s law, see supra note 5),
6
and that he therefore would not have been In full, 18 Pa. Cons. Stat. § 2706eligible for the escape clause. We rejected (1998) (in effect at the time of Bovkun’s
the government’s invitation to look beyond conviction) provided:
the New Jersey statute itself, citing Steele A person is guilty of a
and Gerbier for the proposition that “in misdemeanor of the first
evaluating whether a state violation is degree if he threatens to
commit any crime of
violence with intent to
5
N.J. Stat. Ann. § 2C:35-5(a)(1) terrorize another or to
provides that it is unlawful “[t]o cause evacuation of a
manufacture, distribute or dispense, or to building, place of
possess or have under his control with assembly, or facility of
intent to manufacture, distribute or public transportation, or
dispense, a controlled dangerous otherwise to cause serious
substance or controlled substance public inconvenience, or in
analog.” N.J. Stat. Ann. § 2C:35- reckless disregard of the
5(b)(11) provides that marijuana is such risk of causing such terror
a controlled substance. or inconvenience.
16
sought to classify him as an aggravated noted above, see supra Part III.A
felon under 8 U.S.C. § 1101(a)(43)(F) (discussing Taylor’s two-step approach),
(incorporating 18 U.S.C. § 16 by Taylor requires both interpretation of the
reference), for committing “a crime of federal statute describing the offense, and
violence.” 7 Bovkun argued that “mere a comparison with the statute of criminal
public inconvenience” would not qualify conviction. Though most of our
as a crime of violence, but we rejected his aggravated felony cases have turned on the
argument because it confused the actus
reus of the offense (“threat[] to commit a
crime of violence”) and the mens rea
defraud, deceive or injure
(“with intent to . . . or reckless disregard of
another person, or knowing
. . .”). Bovkun, 283 F.3d at 170. We held
that the person is
that it was the actus reus of the state
facilitating a fraud or injury
offense that had to be aligned with the
to be perpetrated by
federal statute, and on that basis we
anyone, the person:
concluded that a Pennsylvania conviction
(1) Alters any written
for making terroristic threats was a crime
instrument of another
of violence as defined in 18 U.S.C. § 16.
person without the other
Finally, in Drakes, we considered 8 person’s authority; or
U.S.C. § 1101(a)(43)(R), which classifies (2) Makes, completes,
as an aggravated felony “an offense executes, authenticates,
relating to . . . forgery.” Though the facts issues or transfers any
were not entirely clear, the petitioner had written instrument which
been convicted of second-degree forgery purports to be the act of
under Delaware law in connection with another person, whether
providing a false name to the Delaware real or fictitious, who did
State Police during a traffic stop.8 As not authorize that act, or to
have been executed at a
time or place or in a
7
In relevant part, 18 U.S.C. § 16(a) numbered sequence other
defines a “crime of violence as “an than was in fact the case or
offense that has as an element the use, to be a copy of an original
attempted use, or threatened use of when no original existed;
physical force against the person or or
property of another.” (3) Possesses a written
instrument, knowing that it
8
In relevant part, 11 Del. C. § 861 was made, completed or
provides: altered under
(a) A person is guilty of circumstances constituting
forgery when, intending to forgery.
17
second step, Drakes concentrated more on F.3d at 226 (citing N.J. Stat. Ann. 2C:20-
the first. In Drakes, we discussed at length 4 10 ); Valansi, 278 F.3d at 210 (quoting 18
the meaning of “forgery” in 8 U.S.C.
§ 1101(a)(43)(R). See 240 F.3d at 248-50.
Upon determinin g that “Congress (1) creates or reinforces a
evidenced an intent to define forgery in its false impression, including
broadest sense,” id. at 249, it became easy false impressions as to law,
to conclude that 11 Del. C. § 861 came value, intention or other
within the wide sweep of the offenses state of mind; but
described in 8 U.S.C. § 1101(a)(43)(R), deception as to a person’s
see Drakes, 240 F.3d at 250. Thus Drakes intention to perform a
only briefly touched on Taylor’s second promise shall not be
step—the formal categorical approach as inferred from the fact alone
we have been discussing it. that he did not
subsequently perform the
b. Cases not employing the formal
promise;
categorical approach of Taylor
(2) prevents another from
We turn now to the cases in which we acquiring information
did not confine ourselves to the formal which would affect his
categorical approach of Taylor. All three judgment of a transaction;
such cases—Nugent, Munroe, and or
Valansi—concerned 8 U .S.C . (3) fails to correct a false
§ 1101(a)(43)(M)(i), which defines as an impression which the
aggravated felony an offense that deceiver previously created
“involves fraud or deceit in which the loss or reinforced, or which the
to the victim or victims exceeds $10,000.” deceiver knows to be
In all three cases, the relevant criminal influencing another to
statute did not include a “loss greater than whom he stands in a
$10,000” element. See Nugent, 367 F.3d fiduciary or confidential
at 168 n.2 (quoting 18 Pa. Cons. Stat. relationship.
§ 3922(a)9); Munroe, 252
10
In full, N.J. Stat. Ann. 2C:20-4
provides:
9
In full, 18 Pa. Cons. Stat. § 3922(a) A person is guilty of theft
provides: if he purposely obtains
A person is guilty of theft property of another by
if he intentionally obtains deception. A person
or withholds property of deceives if he purposely:
another by deception. A a. Creates or reinforces a
person deceives if he false impression, including
intentionally: false impressions as to law,
18
U.S.C. § 656 11 ).12 Yet in these cases we
expressly rested our holding on the
value, intention or
other state of mind,
and including, but
the group addressed.
not limited to, a
false impression that 11
In relevant part, 18 U.S.C. § 656the person is provides:
soliciting or Whoever, being an officer,
collecting funds for director, agent or employee
a charitable purpose; of, or connected in any
but deception as to a capacity with any . . .
person’s intention to national bank . . .
perform a promise embezzles, abstracts,
shall not be inferred purloins or willfully
from the fact alone misapplies any of the
that he did not moneys, funds or credits of
subsequently such bank . . . shall be
perform the [fined and/or imprisoned].
promise; We also note that in Valansi’s
b. Prevents another from plea agreement, she stipulated (for
acquiring information Sentencing Guidelines purposes) only
which would affect his that the value of the embezzled funds
judgment of a transaction; “was in excess of $1,000.” Valansi, 278
or F.3d at 206.
c. Fails to correct a false
12
impression which the Although none of these statutes has
deceiver previously created an amount-of-loss element (i.e., some
or reinforced, or which the minimum threshold amount of loss that
deceiver knows to be must be met for a conviction), there are
influencing another to cognate statutes that do. See, e.g., Cal.
whom he stands in a Penal Code § 487(a) (grand theft is
fiduciary or confidential committed “[w]hen the money, labor, or
relationship. real or personal property taken is of a
The term “deceive” does value exceeding four hundred dollars
not, however, include ($400)”); Wash. Rev. Code
falsity as to matters having § 9A.56.030(1)(a) (theft in the first
no pecuniary significance, degree is theft of “[p]roperty or services
or puffing or exaggeration which exceed(s) one thousand five
by statements unlikely to hundred dollars in value other than a
deceive ordinary persons in firearm”).
19
underlying facts about the amount of loss required element. Some but not all
involved: In Nugent, 367 F.3d at 169, the convictions under 18 U.S.C. § 656bad check at issue was in the amount of qualify as an aggravated felony
$4831.26 (and thus insufficient to support under that definition: a conviction
the aggravated felony classification); in for embezzlement with specific
Munroe, 353 F.3d at 226, several bad intent to defraud qualifies as an
checks written by the petitioner totaled in offense involving fraud or deceit,
excess of $10,000 (and thus were and thus an aggravated felony; a
sufficient to support the aggravated felony conviction with only the specific
classification). intent to injure does not.
Valansi, in which the petitioner had Valansi, 278 F.3d at 217.
embezzled over $400,000 in cash and
Under a strict reading of Taylor’s
checks in her capacity as a bank teller, 278
formal categorical approach, this would be
F.3d at 205, bears further discussion. The
the end of the story, because a conviction
monetary threshold was clearly reached in
under 18 U.S.C. § 656 does not necessarily
Valansi. See 278 F.3d at 209 (“Valansi
establish fraudulent intent any more than
does not dispute that her conviction
Singh’s conviction under 11 Del. C. § 767
s a ti s f ie s t he $ 10 ,0 0 0 m o n e t a ry
necessarily establishes sexual abuse of a
requirement.”). The case turned instead on
minor (because, after all, some but not all
whether Valansi’s crime “involve[d] fraud
convictions under 11 Del. C. § 767 involve
or deceit.” In an extensive discussion of
a minor victim). The Valansi panel went
18 U.S.C. § 656, the Court focused on the
on, however:
mens rea requirement that had been
judicially imposed on the statute: The We have cautioned that where “a
embezzler must do so “with the intent to criminal statute on its face fits the
injure or defraud the bank.” Valansi, 278 INA’s deportability classification .
F.3d 210 (citing United States v. . . [,][t]o go beyond the offense as
Schoenhut, 576 F.2d 1010, 1024 (3d Cir. charged and scrutinize the
1978) (citing United States v. Schmidt, 471 underlying facts would change our
F.2d 385 (3d Cir. 1972))). We held that inquiry from a jurisdictionalone into a full consideration
this disjunctive mens rea of the merits. Such an approach would fly
requirement—either intent to defraud or in the face of the jurisdiction limiting
intent to injure suffices— put the statute language of IIRIRA.” Drakes, 240 F.3d at
with one foo t in 8 U.S .C. 247-48. However, in this case we have
§ 1101(a)(43)(M )(i) and one foot out: determined that the criminal statute does
not fit squarely within the INA’s
The p la in meaning of
deportability classification because some,
§ 1101(a)(43)(M)(i) defines an
but not all, of the convictions under 18
aggravated felony as an offense that
U.S.C. § 656 qualify as offenses involving
has fraud or deceit as at least one
fraud or deceit. Because we are unable to
20
determine from the face of the statute Taylor’s categorical approach. Thus,
whether Valansi’s conviction is among whatever disagreements there were within
those that qualify as an aggravated felony, the panel in Valansi, all agreed that the
we must take the additional step of case required a look beyond the literal
examining the underlying facts to elements of 18 U.S.C. § 656.
determine whether Valansi pled guilty to
c. A governing principle?
an offense involving fraud or deceit.
Our survey complete, the question we
Valansi, 278 F.3d at 214 (alterations in
now pose is whether these
original). Ultimately, we concluded that
decisions—some applying Taylor, some
[i]n Valansi’s case, the specific not—can be reconciled under a governing
intent to defraud was not principle. We believe that they can. As
established. It appears that Valansi Taylor itself demonstrates, there are two
was counseled to avoid admitting to facets to these cases: the federal statute
that intent, and the plea colloquy enumerating categories of crimes on the
fails to pin down the mens rea one hand (the “enumerating statute”), and
element sufficiently for us to the criminal statute of conviction, whether
conclude that Valansi acted with federal or state, on the other (the “statute
the intent to defraud rather than to of conviction”). While Taylor’s formal
injure her employer. categorical approach presumptively
applies in comparing the two, under
Id. at 217. Accordingly, we granted the
certain conditions, both the enumerating
petition for review.
statute and the statute of conviction can
In dissent, Judge Scirica concluded that require a departure from the formal
embezzlement under 18 U.S.C. § 656 is categorical approach.
always a crime of fraud or deceit, and
In the case of the enumerating statute,
therefore had no need to analyze the
a departure from the formal categorical
i n t e n t - t o - d e f r a u d / i n te n t - to - i n j u r e
approach seems warranted when the terms
distinction. While this seems more
of the statute invite inquiry into the facts
consistent with the formal categorical
underlying the conviction at issue. The
approach of Taylor, Judge Scirica’s dissent
qualifier “in which the loss to the victim or
still relies on (1) the plea colloquy (to
victims exceeds $10,000” in 8 U.S.C.
establi sh that V alansi c om mitte d
§ 1101(a)(43)(M)(i) is the prototypical
embezzlement, and not “abstract[ion],
example—it expresses such a specificity of
purloin[ing], or . . . misappli[cation]”), and
fact that it almost begs an adjudicator to
(2) the factual record (to establish the
examine the facts at issue. This principle
fiduciary relationship between Valansi and
explains our holdings in Nugent and
her employing bank necessary to satisfy
Munroe. Another example would be an
his definition of embezzlement). Both
enumerating statute specifying crimes
steps are beyond the strict scope of
“committed within the last two years.”
21
Such a statute could not be read to cover imprisonment is at least one year,” invites
only crimes which have “within the last inquiry into the alien’s actual sentence.
two years” as an element; instead, a court See Graham, 169 F.3d at 790-91. In
would read “within the last two years” as contrast, provisions like 8 U.S.C.
a limiting provision on crimes that would § 1101(a)(43)(J), which classifies as an
otherwise qualify. aggravated felony certain racketeering and
gambling offenses “for which a sentence
In contrast, cases interpreting relatively
of one year imprisonment or more may be
unitary cate gorical c once pts— like
imposed,” seem to direct inquiry toward
“forgery” (Drakes), “burglary” (Taylor
the statutory sentencing scheme, not the
itself) or “crime of violence” (Francis and
alien’s actual sentence. See Graham, 169
Bovkun)—do not look to underlying facts
F.3d at 790-91.
because the enumerating statute does not
invite any such inquiry. Likewise, the Turning to the statute of conviction,
hypothetical federal felony trilogy (Steele, there are also cases where a look into the
Gerbier, and Wilson) asks only whether underlying facts—or at least the charging
the elements of a federal criminal statute instrument—is called for. Valansi is a
can by satisfied by reference to the actual good example of such a case: There, the
statute of conviction; this presents no statute of conviction was phrased in the
invitation to depart from Taylor’s formal disjunctive—a mens rea of either intent to
categorical approach and examine the defraud or intent to injure would suffice
underlying facts. for conviction—which, in our view, called
for an exploration of which of the
Though we have little case law on
alternative elements was the actual basis
point, the contrast we have described
for conviction. Statutes phrased in the
appears to be mirrored in the references in
disjunctive are akin to, and can be readily
8 U.S.C. § 1101(a)(43) to the duration of
converted to, statutes structured in outline
sentences. Correcting for the scrivener’s
form, with a series of numbered or letter
error in 8 U.S.C. § 1101(a)(43)(G), we
elements. See, e.g., statutes cited supra
held in Graham, 169 F.3d at 791, that that
notes 8-10. Such statutes may sometimes
section specifies theft and burglary
more clearly invite further inquiry into
offenses “for which the term of
exactly which subsection the defendant
imprisonment [imposed is] at least one
violated. The exercise of analyzing
year.” This obviously invites an inquiry
disjunctive statutes for an invitation to
into the sentence actually imposed on the
further inquiry is much more difficult than
alien, rather than a categorical inquiry into
that described in the preceding paragraphs,
the statutory punishment for the offense.
for it poses the vexing question of how far
Similarly, provisions like 8 U.S.C.
below the judgment or plea colloquy the
§ 1101(a)(43)(S), which classifies as an
court may look. The cases are few and the
aggravated felony certain obstruction of
jurisprudence is not clear. However, in the
justice offenses “for which the term of
hope that it may shed some light on this
22
troublesome area, we will do our best to Taylor itself, in some ways, provides
analyze the problem. an example. Taylor was convicted of
second-degree burglary under some
We have used a numbered subsection
section of Mo. Rev. Stat. § 560 (1969); the
of such a statute as a statute of conviction
Court remanded for consideration of
for purposes of the Taylor inquiry. See
whether he was convicted under §§
Wilson, 350 F.3d at 381 (citing N.J. Stat.
560.045, .050, .055, .060, .070, .075, or
Ann. § 2C:35-5(b)(11), which specifically
.080. Taylor, 495 U.S. at 578 n.1. These
criminalizes marijuana). In Wilson,
seven separate statutory sections, each of
however, the numbered paragraphs of §
which contained different factual
2C:35-5(b) were distinct offenses carrying
predicates for the same crime with the
separate penalties, not alternate types of
same penalty, are in practice very similar
conduct that constituted the same offense.
to a single statute defining a crime, with
The lesson there is that sometimes
seven numbered subsections containing
disjunctive parts of statutes of conviction
alternate factual predicates. And in
represent distinct offenses, with distinct
Taylor, the Supreme Court found that this
punishments. Where different crimes with
division invited further inquiry.
different penalties are involved, under the
categorical approach, further inquiry is Since any statute that is phrased in the
clearly invited into which particular crime disjunctive can be readily converted to
the petitioner was actually convicted of. outline form, it would be strange to think
that Congress intended the application of
In other statutes, disjunctive wording
the categorical approach to turn on the
or outline formatting simply describes
typography used by the statute’s drafters.
variations of the same offense, with no
Commonly, the best way to resolve the
difference in punishment and no
question raised by a conviction under a
distinction on the judgment of conviction.
statute phrased in the disjunctive, or
Even here, though, further inquiry might
structured in outline form, will be to look
be warranted, as we found in Valansi,
to the charging instrument or to a formal
because the face of the statute might not
guilty plea (as we did in Valansi, for
make clear whether the conviction
example). But even in such cases, we
qualifies as an aggravated felony. It is not
have not taken the further step of looking
clear that only those disjunctions reflected
to facts outside the charging instrument or
in the penalty or the judgment of
further plea; we leave for another day the
conviction are relevant for the purposes of
question whether statutes phrased in the
§ 1101(a)(43); where some variations of
disjunctive invite such inquiry beyond a
the crime of conviction meet the
charging instrument or a formal plea.
aggravated-felony requisites and others do
not, we have thus allowed further inquiry As suggested above, our jurisprudence
to see which variation was actually is not a seamless web. In Wilson, we did
committed. not conduct any further inquiry into the
23
underlying facts of the conviction, even Singh’s petition, we need not resolve the
though the statute at issue was phrased in matter, because Singh’s statute of
the disjunctive. As discussed above, the conviction is not phrased in the disjunctive
petitioner had been convicted under N.J. in a relevant way. The statute is phrased in
Stat. Ann. § 2C:35-5(a)(1), which made it the disjunctive, both with respect to its
unlawful “[t]o manufacture, distribute or actus reus (which can be either (1) sexual
dispense, or to possess or have under his contact or (2) causing sexual contact) and
control with intent to manufacture, its mens rea
d i s t r i b u t e o r d i s p en s e , [ c er t a in
(which can be either (a) knowing that the
substances].” Despite this disjunctive
contact is offensive to the victim, or (b)
phrasing, we declined to examine whether
knowing that the contact occurs without
Wilson had engaged in distribution or
the victim’s consent). But none of this
possession with the intent to distribute.
gives insight into the question whether 11
Subject to our discussion in the margin,13
Del. C. § 767 constitutes “sexual abuse of
this may be in tension with our earlier
a minor” because, though any combination
decision in Valansi. But there may also be
of actus reus and mens rea seem to suffice
other cases in which a statute phrased in
as the actus reus and mens rea of “sexual
the disjunctive would not invite further
abuse,” the statute is silent on the critical
inquiry; we cannot with great confidence
matter of the age of the victim.
draw any general rule on this point from
our cases. 2. Does the formal categorical approach
apply here?
At all events, for purposes of deciding
At long last, we come to the operative
question in this case: Does Taylor’s formal
13
It seems that, in Wilson, we declined categorical approach apply to 8 U.S.C.
to take the disjunctive phrasing as an § 1101(a)(43)(A) and 11 Del. C. § 767?
invitation to make further inquiry We have already indicated that Singh’s
because the disjunctive words of N.J. statute of conviction does not invite us to
Stat. Ann. § 2C:35-5(a)(1) did not go beyond the formal categorical
differentiate between offenses for approach, because it is not phrased in the
purposes of judgment and penalty (unlike disjunctive in a relevant way. Thus we
the numbered paragraphs of subsection m u s t a s k w he th er 8 U .S.C .
(b) of that statute, which carried separate § 1101(a)(43)(A) (and specifically “sexual
penalties). As noted above, however, it abuse of a minor”) invites inquiry—that is,
is possible that a disjunctive definition of whether it is more like the amount-of-loss
a single offense, for state law purposes of provision of 8 U.S.C. § 1101(a)(43)(M)(i),
judgment and penalty, might nonetheless or more like provisions for “burglary,” 8
invite further inquiry for the purposes of U.S.C. § 1101(a)(43)(G), or “crime of
§ 1101(a)(43)’s definition of an violence,” 8 U.S.C. § 1101(a)(43)(F).
aggravated felony.
24
We think it clear that “sexual abuse of IV. Conclusion
a minor” belongs in the latter category.
In view of our conclusion in Part III.B
First, it is listed in the same subsection as
that Taylor’s formal categorical approach
“murder” and “rape,” two terms that share
applies to “sexual abuse of a minor” under
the common law pedigree of “burglary,”
8 U.S.C. § 1101(a)(43)(A) and 11 Del. C.
which was examined in Taylor itself.
§ 767, our analysis in Part III.A stands:
Applying the maxim noscitur a sociis,14 we
Because§ 767 does not establish the age of
would place “sexual abuse of a minor” in
the victim, a conviction under that statute
a similar mold. Second, nothing in the
is not the aggravated felony of sexual
phrase “sexual abuse of a minor” signals
abuse of a minor. Because Singh has not
that a factual investigation is called for.
been convicted of an aggravated felony,
Congress could have enacted, for example,
we have jurisdiction and will grant the
the language “any sex offense, where the
petition for review.
victim of such offense was a minor”; such
language, parallel to provisions like 8
U.S.C. § 1101(a)(43)(G) & (S), might
direct our inquiry into the facts of the
crime rather than its definition. Third, in
an area that so routinely implicates state
laws, Congress is presumed to legislate
against the backdrop of existing state
statutes. The widespread existence of state
statutes specifically criminalizing sexual
abuse of a minor, see, e.g., Ala. Code
§ 13A-6-67 (“Sexual abuse in the second
degree”); Cal. Penal Code § 288.5(“Continuous sexual abuse of a child”); 11
Del. C. § 778 (“Continuous sexual abuse
of a child”); 18 Pa. Cons. Stat. § 6312(“Sexual abuse of children”), supports the
conclusion that Congress intended
Taylor’s formal categorical approach to be
applied in this case.
14
“The meaning of a word is or may be
known from the accompanying words.”
Black’s Law Dictionary 1060 (6th ed.
1990).
25