Adnan Shroff v. Jefferson Sessions, III , 890 F.3d 542 ( 2018 )

Case: 17-60042 Document: 00514473096 Page: 1 Date Filed: 05/15/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60042 May 15, 2018
Lyle W. Cayce
Clerk
ADNAN ASGAR SHROFF,
Petitioner,
versus
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Adnan Shroff petitions for review of an order of the Board of Immigration
Appeals (“BIA”) deciding that his conviction of online solicitation of a minor is
an aggravated felony that subjects him to removal. Because Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562 (2017), abrogates this court’s previous
definition of a minor in this context, we grant review, reverse, and remand.
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No. 17-60042
I.
Shroff was admitted to the United States as a lawful permanent resident
in September 2009. In June 2016, he pleaded guilty of online solicitation of a
minor in violation of Texas Penal Code § 33.021(c) 1 and was given deferred
adjudication with ten years of community supervision. The Department of
Homeland Security initiated removal proceedings in July 2016, stating that
his offense rendered him removable under the Immigration and Nationality
Act of 1952 (“INA”), 8 U.S.C. § 1101(a)(43)(A), for a conviction of murder, rape,
or sexual abuse of a minor. Finding that Shroff’s offense (1) involved a minor,
(2) was sexual in nature, and (3) was abusive, the BIA determined that his
conviction qualified as sexual abuse of a minor under Contreras v. Holder,
754 F.3d 286, 293–95 (5th Cir. 2014), and dismissed Shroff’s appeal.
II.
We have no jurisdiction to review “any final order of removal against an
alien who is removable by reason of having committed” an aggravated felony.
8 U.S.C. § 1252(a)(2)(C). We do, however, review “constitutional claims or
questions of law raised upon a petition for review,” such as whether a convic-
tion qualifies as an aggravated felony. Id. § 1252(a)(2)(D); Larin–Ulloa v. Gon-
zales, 462 F.3d 456, 460–61 (5th Cir. 2006).
III.
To determine whether a conviction under Texas Penal Code § 33.021(c)
1 The statute defines online solicitation of a minor as follows:
A person commits an offense if the person, over the Internet, by electronic mail or
text message or other electronic message service or system, or through a commercial
online service, knowingly solicits a minor to meet another person, including the
actor, with the intent that the minor will engage in sexual contact, sexual
intercourse, or deviate sexual intercourse with the actor or another person.
TEX. PENAL CODE § 33.021(c).
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qualifies as sexual abuse of a minor, we apply the categorical approach, looking
to the statute of conviction and comparing the elements to those of the generic
federal offense. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The generic
definition of sexual abuse of a minor employed by this court requires that con-
duct (1) involve a child, (2) be sexual in nature, (3) and be abusive. 2 In United
States v. Rodriguez, 711 F.3d 541, 560 (5th Cir. 2013) (en banc), we defined a
minor as anyone under the age of eighteen. The Texas statute defines a minor
as “an individual who is younger than 17 years of age; or an individual whom
the actor believes to be younger than 17 years of age.” TEX. PENAL CODE
§ 33.021(a)(1).
Shroff contends that Mathis v. United States, 136 S. Ct. 2245 (2016), nul-
lifies this court’s definition of sexual abuse of a minor. Because we already use
the categorical approach to determine whether state statutes qualify as aggra-
vated felonies for purposes of removability, this assertion is unavailing. 3
Shroff further denies that his conviction meets the generic definition of sexual
abuse of a minor because no minor was involved, given that Shroff was appre-
hended in a sting operation by police posing as a fifteen-year-old. As the BIA
noted, we have rejected that proposition and have found that the relevant
question for removal purposes is whether the alien acted with the intention of
sexually exploiting a minor. 4
2United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008); United States v.
Zavala-Sustaita, 214 F.3d 601, 604−05 (5th Cir. 2000).
3 See, e.g., Contreras, 754 F.3d at 292; Rodriguez, 711 F.3d at 552–53; Najera-Najera,
519 F.3d at 512 n.2; United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006); United
States v. Dominguez–Ochoa, 386 F.3d 639, 642–43 (5th Cir. 2004).
4 A conviction under prong two of § 33.021(a)(1)(B)―when a defendant believes the
victim is younger than seventeen―amounts to an attempt to commit sexual abuse of a minor
for purposes of the INA. Cf. United States v. Rivas, 836 F.3d 514, 515 (5th Cir. 2016); see
also 8 U.S.C. § 1101(a)(43)(A), (U) (defining “aggravated felony” to include “an attempt . . . to
commit [sexual abuse of a minor]”). That the attempt may be impossible to commit because
3
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IV.
When the BIA issued its decision, the Supreme Court had not yet decided
Esquivel-Quintana. Based on Esquivel-Quintana, Shroff contends that the
generic definition in Zavala-Sustaita and Najera-Najera is abrogated because
Esquivel-Quintana provided a generic definition of sexual abuse of a minor
requiring actual sexual contact and that the minor be under sixteen.
Examining a California statutory-rape provision, the Court found over-
broad the definition of a minor as anyone under the age of eighteen. Esquivel-
Quintana, 137 S. Ct. at 1568. Because the Court focused on the age require-
ment and did not make an express holding on the requirement of sexual con-
tact, Esquivel-Quintana does not abrogate our holding that “a sexual act does
not require physical contact with a minor to be abusive, since psychological
harm may occur even without such contact.” Contreras, 754 F.3d at 294.
The decision in Esquivel-Quintana does, however, establish an age re-
quirement that renders Shroff’s statute of conviction overbroad. An un-
published decision has already recognized that Esquivel-Quintana abrogated
Rodriguez’s holding that for purposes of statutory rape, a minor is anyone
under eighteen. 5 The government proffers that Esquivel-Quintana has no
impact on this case, however, because it is limited to “statutory rape offenses
that criminalize sexual intercourse based solely on the age of the participants.”
Esquivel-Quintana, 137 S. Ct. at 1568. Shroff was not convicted under Texas’s
statutory rape provision but instead under the provision for online solicitation
of a minor.
the conviction is procured as the result of an undercover sting operation is of no relevance
under the INA. See United States v. Farner, 251 F.3d 510, 512 (5th Cir. 2001) (holding that
a conviction procured by a sting operation amounts to an attempt to commit sexual abuse).
5 See United States v. Galvan, 699 F. App’x 314, 315 n.1 (5th Cir. 2017) (per curiam),
petition for cert. filed (Feb. 13, 2018) (No. 17-7781).
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That distinction, though colorable, is ultimately untenable. The govern-
ment is correct that Esquivel-Quintana did not rule broadly on the generic
definition of sexual abuse of a minor, but the opinion demonstrates that its
holding applies to online solicitation of a minor.
First, the Court found that the statute of conviction must “prohibit cer-
tain sexual acts based at least in part on the age of the victim” and that “[s]tat-
utory rape laws are one example of this category of crimes.” Id. at 1569. The
Court thus thought its age-specific holding would apply to a category of crimes
not unlike statutory rape. Online solicitation of a minor similarly criminalizes
conduct based solely on the age of the participants.
Second, Esquivel-Quintana looked to the INA. Sexual abuse of a minor
is categorized as an ‘“aggravated’ offense” listed alongside murder and rape,
8 U.S.C. § 1101(a)(43)(A), which the Court called “among the most heinous
crimes [the INA] defines as aggravated felonies.” Esquivel-Quintana,
137 S. Ct. at 1570. Therefore, the Court concluded that “sexual abuse of a
minor encompasses only especially egregious felonies.” Id. If actual sexual
intercourse with a seventeen-year-old is not “especially egregious,” neither is
the online solicitation of a seventeen-year-old.
The Court drew a distinction for statutes criminalizing sexual inter-
course with a minor by someone who occupies a special relationship of trust.
For those offenses, the age of consent can be higher than sixteen. Id. at 1571–
72. Given the structure of the Court’s reasoning regarding the age of consent
and especially egregious crimes, Esquivel-Quintana’s generic definition of a
minor as one under sixteen applies in the context of online solicitation of a
minor. The age limit of sixteen applies equally to both subsections of
§ 33.021(a)(1). Thus, for the offense of online solicitation of a minor to be gen-
eric, the minor must actually be under sixteen, or the defendant must believe
5
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the minor is under sixteen. Therefore, § 33.021(c) is overbroad and does not
qualify as sexual abuse of a minor for purposes of removability.
The petition for review is GRANTED. The decision of the BIA is
REVERSED. This matter is REMANDED to the BIA for proceedings as
needed.
6