Richard McKoy v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-3626
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RICHARD MCKOY,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of an
Order of the Board of Immigration Appeals
(A058-349-641)
Immigration Judge: Jack Weil
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Submitted Under Third Circuit L.A.R. 34.1(a)
October 25, 2021
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Before: GREENAWAY, JR., PHIPPS, and COWEN, Circuit Judges.
(Opinion Filed: October 26, 2021)
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OPINION*
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GREENAWAY, JR., Circuit Judge.
Richard McKoy seeks review of the final order of removal finding him removable
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), based on his conviction for unlawful contact with
a minor, in violation of 18 Pa. Cons. Stat. § 6318(a)(1). McKoy asserts that both the
Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) erred when
they concluded that § 6318(a)(1) was divisible and therefore amenable to review under
the modified categorical approach. As we explain below, we agree that the statute is
divisible and will therefore deny the petition for review.
I. Background
McKoy, a native and citizen of Jamaica, entered the United States in 2009 as a
legal permanent resident. In 2018, in the Philadelphia Court of Common Pleas, McKoy
was charged in an eight-count criminal information. He pled guilty to count one,
charging him with unlawful contact with a minor, in violation of 18 Pa. Cons. Stat.
§ 6318(a)(1), and count four, charging him with indecent assault without consent, in
violation of 18 Pa. Cons. Stat. § 3126(a)(1). Based on these offenses, McKoy was
charged with removability for having been convicted of a crime of child abuse, pursuant
to 8 U.S.C. § 1227(a)(2)(E)(i), and for having been convicted of an aggravated felony,
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).1
Before the IJ, McKoy admitted to the factual allegations in the Notice to Appear
(“NTA”), but denied the charges of removability and moved to terminate the
1
The IJ dismissed the charge made pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The
government did not seek review of that decision before either the BIA or this Court. This
opinion focuses solely on the issues raised in connection with § 1227(a)(2)(E)(i).
2
proceedings. McCoy made clear that he sought no other relief from removal. With
respect to the child abuse offense, McKoy did not question whether § 6318(a)(1) satisfied
the definition of child abuse when the victim was a minor. Instead, he argued that the
underlying Pennsylvania statute2 encompasses conduct that is broader than the generic
definition of child abuse for immigration purposes. Specifically, he focused on the fact
that someone could be convicted under the Pennsylvania statute based on conduct
involving a minor or a law enforcement officer assuming the identity of a minor, thus
encompassing conduct not involving a minor. Arguing that the statute was indivisible
under the categorical approach,3 McCoy asserted that his removal proceedings should be
terminated.
The IJ disagreed with McKoy’s position, concluding that, since § 6318(a)(1) was
2
The Pennsylvania statute at issue provides that:
A person commits an offense if he is intentionally in contact
with a minor, or a law enforcement officer acting in the performance
of his duties who has assumed the identity of a minor, for the
purpose of engaging in an activity prohibited under any of the
following, and either the person initiating the contact or the person
being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to
sexual offenses).
18 Pa. Cons. Stat. § 6318(a)(1).
3
As discussed more fully below, courts employ either a categorical or a modified
categorical approach in determining whether an alien’s conviction, rather than their
conduct, makes them removable. Esquival-Quintana v. Sessions, 137 S. Ct. 1562, 1567-
68 (2017).
3
divisible, application of the modified categorical approach was appropriate. Relying on
the criminal information, the IJ found that McKoy’s offense involved a minor, and not a
law enforcement officer posing as a minor.
Asserting that the IJ erred in finding § 6318(a)(1) divisible, McKoy sought review
before the BIA. The BIA affirmed the IJ’s decision and dismissed the appeal. McKoy
filed a timely petition for review before this Court.
II. Discussion
The BIA had jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), but jurisdiction is limited to review
of “constitutional claims and questions of law.” Hanif v. Att’y Gen., 694 F.3d 479, 483
(3d Cir. 2012) (citing 8 U.S.C. § 1252(a)(2)(D)).
Because the BIA did not summarily affirm the IJ’s order but instead issued a
separate opinion, we review the BIA’s disposition and look to the IJ’s ruling only insofar
as the BIA deferred to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We
review factual findings by the BIA for “substantial evidence, which means we must
uphold findings of fact unless the record evidence compels a contrary finding.” Li Hua
Yuan v. Att’y Gen., 642 F.3d 420, 425 (3d Cir. 2011).
“Because the BIA’s written decision in this case was an unpublished, non-
precedential decision issued by a single BIA member, to the extent it was interpreting
statutes, we will not afford it Chevron deference. Instead, those issues of statutory
interpretation, along with other questions of law, will be reviewed de novo.” Gourzong v.
4
Att’y Gen., 826 F.3d 132, 136 (3d Cir. 2016) (citing Mahn v. Att’y Gen., 767 F.3d 170,
173 (3d Cir. 2014) (internal citations omitted)). “Moreover, ‘we owe no deference to the
[administrative] interpretation of a state criminal statute.’” Castillo v. Att’y Gen., 729
F.3d 296, 302 (3d Cir. 2013) (quoting Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir.
2005)).
When determining if a particular state crime renders an alien removable, “the
immigration courts look to see if the statute matches the federal definition of a qualifying
crime. This is known as the ‘categorical approach.’” Hillocks v. Atty. Gen’l, 934 F.3d
332, 336 (3d Cir. 2019). “[T]he categorical approach does not call for the consideration
of the facts of a particular case.” Id. at 338. Instead, “[w]e presume that the state
conviction rested upon the least of the acts criminalized by the statute, and then we
determine whether that conduct would fall within the federal definition of the crime.” Id.(quoting Esquival-Quintana v. Sessions, 137 S. Ct. 1562, 1567 (2017)) (internal quotation
marks omitted). “[A]n indictment and jury instructions could indicate, by referencing
one alternative term to the exclusion of all others, that the statute contains a list of
elements, each one of which goes toward a separate crime.” Mathis v. United States, 136
S. Ct. 2243, 2257 (2016).
“Courts ‘modify’ this approach where a crime has multiple alternative elements—
facts that a prosecutor must prove, and a jury must find, beyond a reasonable doubt.”
Hillocks, 934 F.3d at 338. “[T]he modified approach ‘helps implement the categorical
approach’ when a defendant was convicted of violating a divisible statute.” Id. (quoting
5
Descamps v. United States, 570 U.S. 254, 263 (2013)). Applying the modified
categorical approach, we may “consult a limited class of documents . . . to determine
which alternative formed the basis of the defendant’s . . . conviction.” Descamps, 570
U.S. at 257.
Looking only at the statute of conviction, we cannot tell if McKoy was convicted
of a crime satisfying the definition of child abuse because he may have engaged in
conduct that did not involve a child. That is, § 6318(a)(1) prohibits conduct involving
either a minor or a “law enforcement officer acting in the performance of his duties who
has assumed the identity of a minor.” “[F]aced with an alternatively phrased statute [we
must] determine whether its listed items are elements or means.” Mathis, 136 S. Ct. at
2256. To aid in this endeavor, we turn to Pennsylvania’s model jury instructions. The
relevant model jury instruction provides that:
The defendant has been charged with unlawful contact with a minor. To
find the defendant guilty of this offense, you must find that each of the
following three elements has been proven beyond a reasonable doubt:
First, that the defendant was intentionally in contact with [a minor] [a law
enforcement officer acting in the performance of [his] [her] duties who had
assumed the identity of a minor];
Second, that the contact was for the purpose of engaging in an unlawful act,
that is, [list specific offense under 18 Pa. C.S. chapter 31 relating to sexual
offenses] [open lewdness] [prostitution] [acts involving obscene and other
sexual materials and performances] [sexual abuse of children] [sexual
exploitation of children]. [Where the Commonwealth has charged more
than one such act, the following instruction should also be given: If you
find this element is proven beyond a reasonable doubt, you must indicate
on the verdict form which act or acts you find to have been so proven];
6
Third, that either the defendant or the person being contacted is within this
Commonwealth.
Pennsylvania Suggested Standard Criminal Jury Instructions, Pa. SSJI (Crim) 15.6318.
According to McKoy, the two alternatives set forth in the first element reflect only
means of committing the underlying crime because the jury instructions do not require
jury unanimity on the question of who the victim is. This argument misapprehends the
import of the jury instructions. The bracketed information indicates that a jury would
only be charged as to one of the alternative victims – either a minor or a law enforcement
officer acting in the performance of his or her duties who had assumed the identity of a
minor, but not both. As a result, the jury would have to be unanimous in its decision,
thus making the statute divisible and allowing us to apply the modified categorical
approach.
Under the modified categorical approach, we can examine the criminal
information setting forth the charges against McKoy.4 That criminal information clearly
indicates that the victim involved in counts one and four (the two counts to which McKoy
pled guilty) was “G.R. Age: 15,” A.R. 210, and not a law enforcement officer posing as a
minor. Thus, McKoy was convicted of a crime involving child abuse and is removable
4
“[L]ogic dictates that a court endeavoring to conclude which subsection [a
defendant] pled guilty to violating would have to 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.’” United States v. Blair, 734 F.3d
218, 225 (3d Cir. 2013) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).
7
pursuant to 8 U.S.C. § 1227(a)(2)(E)(i).
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
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