Richard Amos v. Loretta Lynch

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2005
RICHARD JESUS AMOS,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-1633
RICHARD JESUS AMOS,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Argued: March 24, 2015 Decided: June 10, 2015
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Petitions for review granted and order of removal vacated by
published opinion. Judge Keenan wrote the opinion, in which
Judge Motz and Judge Thacker joined.
ARGUED: Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver
Spring, Maryland, for Petitioner. Rebecca Hoffberg Phillips,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Joyce R. Branda, Acting Assistant
Attorney General, Civil Division, John S. Hogan, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we review consolidated petitions filed by
Richard Jesus Amos, a citizen of the Philippines, challenging
decisions of the Board of Immigration Appeals (the BIA, or the
Board), which dismissed Amos’s appeal from an immigration
judge’s order of removal and denied Amos’s motion for
reconsideration. The BIA determined that Amos was removable
based on his conviction in 1990 for “causing abuse to a child,”
in violation of Maryland law.
The BIA held that this offense qualified as an “aggravated
felony” under the generic federal crime of “sexual abuse of a
minor,” as listed in 8 U.S.C. § 1101(a)(43)(A). We are not
persuaded by the BIA’s analysis and its conclusion, because the
least culpable conduct under the former Maryland statute
prohibiting sexual abuse of a child does not necessarily qualify
as the generic federal offense of “sexual abuse of a minor,” as
interpreted by the BIA. We therefore grant Amos’s petitions for
review and vacate the order for his removal.
I.
Amos entered the United States in 1980 as a lawful
permanent resident, when he was about nine years old. In 1990,
he was convicted in a Maryland state court of the crime of
“causing abuse to [a] child” (the child abuse conviction), in
3
violation of former Maryland Code, Article 27 § 35A (1988).
That statute stated in relevant part:
(a) Definitions –
(1) In this section the following words have the
meanings indicated.
(2) “Abuse” means:
(i) The sustaining of physical injury by a child as a
result of cruel or inhumane treatment or as a result
of a malicious act by any parent or other person who
has permanent or temporary care or custody or
responsibility for supervision of a child under
circumstances that indicate that the child’s health or
welfare is harmed or threatened thereby; or
(ii) Sexual abuse of a child, whether physical
injuries are sustained or not.
(3) “Child” means any individual under [18 years].
(4)(i) “Sexual abuse” means any act that involves
sexual molestation or exploitation of a child by a
parent or other person who has permanent or temporary
care or custody or responsibility for supervision of a
child. (ii) “Sexual abuse” includes, but is not
limited to: 1. Incest, rape, or sexual offense in any
degree; 2. Sodomy; and 3. Unnatural or perverted
sexual practices.
(b) Violation constitutes felony; penalty. – A parent
or other person who has permanent or temporary care or
custody or responsibility for the supervision of a
child who causes abuse to the child is guilty of a
felony and on conviction is subject to imprisonment in
the penitentiary not exceeding 15 years.
(the Maryland statute, or the former Maryland statute). Md.
Code, Art. 27 § 35A (1988) (emphasis added). The Maryland court
sentenced Amos to a term of 18 months’ imprisonment, with the
4
entire sentence suspended, and to three years of supervised
probation.
In April 2008, the Department of Homeland Security (DHS)
issued a “notice to appear” and initiated removal proceedings
against Amos based on 8 U.S.C. § 1227(a)(2)(A)(iii), which
authorizes the Attorney General to remove “[a]ny alien who is
convicted of an aggravated felony at any time after admission.”
DHS contended that Amos’s child abuse conviction qualified as an
aggravated felony, namely, the “sexual abuse of a minor,” under
8 U.S.C. § 1101(a)(43)(A) (Subsection A), which lists “murder,
rape, or sexual abuse of a minor” as qualifying aggravated
felonies. 1
Although Amos admitted the fact of his conviction, he
disputed that it qualified as an aggravated felony of “sexual
abuse of a minor.” The immigration judge (IJ) rejected Amos’s
argument, and held that Amos was removable under Subsection A.
On appeal from the IJ’s order of removal, the BIA reviewed
the language in the former Maryland statute and concluded that
while the part of the statute addressing sexual abuse of a child
1
DHS also contended that Amos’s conviction qualified as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F) (Subsection
F), because his conviction constituted a crime of violence.
Although the IJ concluded that Amos’s conviction rendered him
removable under Subsection F, the BIA later overruled this
decision and concluded that a violation of the Maryland statute
was not a crime of violence under Subsection F.
5
“conformed” to the meaning of “sexual abuse of a minor” under
Subsection A, the remainder of the statute prohibiting physical
injury to a child did not. The BIA therefore approved the IJ’s
application of a modified categorical analysis, which permitted
review of Amos’s underlying record of conviction to determine
which portion of the Maryland statute formed the basis of Amos’s
conviction. 2 Because the record of conviction “revealed that
[Amos] put the 5 year old victim’s penis in his mouth,” the BIA
concluded that Amos had been convicted under former
Section 35A(a)(2)(ii) and that this offense qualified as “sexual
abuse of a minor” within the meaning of Subsection A.
In reaching this conclusion, the BIA did not define the
meaning of “sexual abuse of a minor,” but instead cited an
earlier BIA decision, Matter of Rodriguez-Rodriguez, 22 I. & N.
Dec. 991 (B.I.A. 1999), stating that this prior decision
“defin[ed] ‘sexual abuse’ as employed in 18 U.S.C. § 3509 to
2
The modified categorical approach applies in limited
circumstances involving “divisible” statutes that prohibit
“multiple, alternative versions of the crime.” Descamps v.
United States, 133 S. Ct. 2276, 2284-85 (2013). A statute will
be deemed “divisible for purposes of applying the modified
categorical approach only if at least one of the categories into
which the statute may be divided constitutes, by its elements,”
the generic federal offense. United States v. Cabrera-Umanzor,
728 F.3d 347, 352 (4th Cir 2013) (emphasis omitted). When
applicable, the modified categorical approach permits review of
certain materials in the underlying criminal record to determine
which alternative crime formed the basis for the conviction.
Id. at 350.
6
cover a broad range of acts of a sexual nature.” Under 18
U.S.C. § 3509(a)(8), “sexual abuse” is defined as “the
employment, use, persuasion, inducement, enticement, or coercion
of a child to engage in, or assist another person to engage in,
sexually explicit conduct or the rape, molestation, prostitution
or other form of sexual exploitation of children, or incest with
children.” See Rodriguez-Rodriguez, 22 I. & N. Dec. at 996.
The BIA determined that this “broad range of acts” necessarily
encompassed the crime of sexual abuse of a child under the
former Maryland statute and, accordingly, dismissed Amos’s
appeal from the IJ’s removal order.
In a later decision denying Amos’s motion for
reconsideration, the BIA expanded its analysis and stated that
under Maryland law, a conviction for “sexual abuse” under former
Section 35A(a)(2)(ii) required proof of three elements: (1) that
the defendant sexually molested or exploited the victim by means
of a specific act; (2) that the victim was under the age of 18;
and (3) that the defendant was a parent or someone responsible
for the care, custody, or supervision of the victim. See
Schmitt v. State, 63 A.3d 638, 643 (Md. Ct. Spec. App. 2013).
The BIA observed that to satisfy the first element under
Maryland law, an affirmative act of molesting or exploiting a
child is not required, because the statute also encompasses an
“omission or failure to act to prevent molestation or
7
exploitation when it is reasonably possible to act.” See Degren
v. State, 722 A.2d 887, 899 (Md. 1999) (discussing different
Maryland statute using same language as relevant portion of the
former Maryland statute). Nevertheless, the BIA concluded that,
under Degren, the least culpable conduct qualifying as “causing
sexual abuse of a child” satisfied the generic federal offense
of “sexual abuse of a minor.” The only reasoning the BIA
provided for this conclusion is that the generic federal
offense, as construed in Rodriguez-Rodriguez, does not require
physical contact with the victim and “includes a broad range of
maltreatment of a sexual nature” as detailed in 18 U.S.C.
§ 3509(a)(8). Accordingly, the BIA denied Amos’s motion for
reconsideration.
Amos filed two petitions for review with this Court, from
the initial BIA decision and from the BIA’s denial of his motion
for reconsideration. We consolidated Amos’s two petitions, in
accordance with 8 U.S.C. § 1252(b)(6). See Crespin-Valladares
v. Holder, 632 F.3d 117, 122 (4th Cir. 2011) (citing Stone v.
INS, 514 U.S. 386, 394 (1995)).
II.
A.
The central issue presented in this appeal is whether the
BIA erred in concluding that Amos’s conviction under the former
8
Maryland statute qualifies as the aggravated felony of “sexual
abuse of a minor,” within the meaning of Subsection A. We
consider this question of law de novo. 3 Castillo v. Holder, 776
F.3d 262, 267 (4th Cir. 2015).
B.
Amos argues that the BIA erred in holding that his Maryland
child abuse conviction qualifies him for removal under
Subsection A for the aggravated felony of “sexual abuse of a
minor.” According to Amos, the BIA misapplied the decision in
Rodriguez-Rodriguez, and incorrectly concluded that the least
culpable conduct under the former Maryland statute fell within
the generic federal offense listed in Subsection A. Thus, Amos
contends that his Maryland conviction does not render him
removable under Subsection A, because the conduct proscribed by
the former Maryland statute is not encompassed within the
generic federal offense of “sexual abuse of a minor.”
In response, the government argues that the BIA correctly
determined that the elements of sexual abuse under the former
Maryland statute fell within the broad meaning of “sexual abuse
3
We observe that judicial review generally is precluded in
cases involving aliens who are removable as aggravated felons.
8 U.S.C. § 1252(a)(2)(C); Kporlor v. Holder, 597 F.3d 222, 225-
26 (4th Cir. 2010). However, we retain jurisdiction to review
constitutional claims or questions of law, including the
question whether a particular underlying crime qualifies as an
aggravated felony. 8 U.S.C. § 1252(a)(2)(D); Soliman v.
Gonzales, 419 F.3d 276, 280 (4th Cir. 2005).
9
of a minor” in Subsection A. Unlike the BIA, the government
does not maintain that the Board articulated a particular
definition of “sexual abuse” in Rodriguez-Rodriguez. Rather,
the government asserts that we owe significant deference to the
BIA’s reliance on an “interpretive touchstone,” namely, the
definition of “sexual abuse” provided in 18 U.S.C. § 3509(a)(8).
Additionally, the government contends that the BIA’s application
of that “guide” in the present case permitted the BIA to
conclude that Amos’s conviction, which was based on charges of
sexual abuse rather than of physical abuse, qualified as a
removable offense under Subsection A. We disagree with the
government’s arguments.
C.
i.
Under the Immigration and Nationality Act (INA), a non-
citizen is removable if he is “convicted of an aggravated felony
at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii).
The INA defines “aggravated felony” in 8 U.S.C. § 1101(a)(43)
(the aggravated felony statute) by enumerating an extensive list
of crimes, including in Subsection A the crimes of “murder,
rape, or sexual abuse of a minor.”
In determining whether a conviction under a particular
state law qualifies as an aggravated felony for removal
purposes, we generally apply the categorical approach set forth
10
in Taylor v. United States, 495 U.S. 575 (1990). Castillo, 776
F.3d at 267-68; see also Estrada-Espinoza v. Mukasey, 546 F.3d
1147, 1152 (9th Cir. 2008) (en banc) 4 (applying categorical
approach to determine whether state crime qualified as sexual
abuse of a minor under Subsection A). Under a categorical
approach, we do not look “‘to the facts of the particular prior
case,’ but instead to whether ‘the state statute defining the
crime of conviction’ categorically fits within the ‘generic’
federal definition of a corresponding aggravated felony.”
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). “A state
offense is a categorical match with a federal offense only if a
conviction of the state offense necessarily involved facts
equating to the generic federal offense.” Castillo, 776 F.3d at
267 (quoting Moncrieffe, 133 S. Ct. at 1684) (citation and
brackets omitted).
When applying a categorical approach, we typically begin by
considering the required elements of the generic federal crime.
See Taylor, 495 U.S. at 590, 592 (explaining that a federal
statute describing a generic crime “must” employ a “uniform,
4
Overruled in part on other grounds by United States v.
Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc)
(per curiam), abrogated by Descamps v. United States, 133 S. Ct.
2276 (2013).
11
categorical definition[] to capture all offenses of a certain
[type] . . . regardless of technical definitions and labels
under state law). This approach allows federal laws to be
applied uniformly to determine the effect of prior state
convictions. See id. at 590-91; Estrada-Espinoza, 546 F.3d at
1157-58.
The generic federal crime at issue in the present case,
“sexual abuse of a minor” under Subsection A, is not defined in
the INA. We therefore turn to consider the BIA’s interpretation
of the meaning of this generic federal offense.
ii.
We generally give substantial deference to the BIA’s
precedential decisions interpreting the INA, because “Congress
conferred on the BIA decisionmaking power to decide such
questions of law.” Martinez v. Holder, 740 F.3d 902, 909 (4th
Cir. 2014) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999), and Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984)). Under the holding in
Chevron, we are required to accept the BIA’s construction of an
otherwise silent or ambiguous statute, unless such construction
is “arbitrary, capricious, or manifestly contrary to the
statute.” 467 U.S. at 843-44. Also, we “may not substitute”
our “own construction of a statutory provision for a reasonable
interpretation” by the BIA. Id. at 844.
12
In prior cases, we have applied the principles of Chevron
to the BIA’s precedential interpretation of generic federal
crimes listed in the aggravated felony statute. 5 See Castillo,
776 F.3d at 266-67 (considering BIA’s interpretation of “theft
offense” in the aggravated felony statute, and assuming that
BIA’s definition was reasonable under Chevron); Soliman, 419
F.3d at 281-83 (engaging in Chevron analysis but declining to
apply deference because BIA’s definition of “theft offense”
conflicted with Congress’s intent to exclude crimes involving
obtaining property by fraud). However, the principles of
Chevron deference are not applicable to the Board’s decision in
Amos’s case because, although issued by a three-judge panel of
the BIA, it was an unpublished decision that does not carry
precedential weight.
A potential complication nevertheless arises in our
analysis here, because the BIA relied in Amos’s case on
Rodriguez-Rodriguez, a precedential BIA decision to which
Chevron deference can apply. See Hernandez v. Holder, 783 F.3d
189, 192 (4th Cir. 2015) (explaining that nonprecedential BIA
5
Although we generally defer to the BIA’s interpretation of
the generic federal crimes listed in the INA, we do not defer to
the BIA’s application of those definitions to particular state
statutes. Whether the elements of a particular state offense
are a categorical match with the elements of a generic federal
offense requires an analysis of state criminal law, which does
not lie within the BIA’s authority or expertise. Soliman v.
Gonzales, 419 F.3d 276, 281 (4th Cir. 2005).
13
decision relied on precedential decision that was entitled to
deference). Thus, we first must consider the decision in
Rodriguez-Rodriguez to determine whether and to what extent it
impacts our review of Amos’s case.
The question before the BIA in Rodriguez-Rodriguez was
whether a Texas statutory offense of “indecency with a child by
exposure” constituted “sexual abuse of a minor” under Subsection
A, even though the Texas crime did not require as an element
that the perpetrator have physical contact with the child
victim. 22 I. & N. Dec. at 991-92. Addressing the undefined,
generic federal crime of “sexual abuse of a minor” found in
Subsection A, the BIA observed that unlike other subsections of
the aggravated felony statute, Congress did not cite in
Subsection A any federal criminal statute defining “sexual
abuse.” Id. at 994-95. Thus, the BIA concluded that Congress
did not intend that the generic federal crime of “sexual abuse
of a minor” be limited to the federal statutes that criminalize
“sexual abuse” and “sexual abuse of a minor.” Id. at 995-96
(citing 18 U.S.C. §§ 2242, 2243). Those statutes limit “sexual
abuse” to acts involving physical contact with specific body
parts of the victim. Id.; see 18 U.S.C. § 2246(2). The BIA
explained that because “states categorize and define sex crimes
against children in many different ways,” the definitions of the
federal offenses in Sections 2242, 2243, and 2246 were “too
14
restrictive to encompass the numerous state crimes that can be
viewed as sexual abuse and the diverse types of conduct that
would fit within the term as it commonly is used.” 22 I. & N.
Dec. at 996.
The BIA also discussed in Rodriguez-Rodriguez a statute
providing procedural protections for child victims and
witnesses, 18 U.S.C. § 3509(a)(8). The BIA observed that this
statute defines “sexual abuse” more broadly as “the employment,
use, persuasion, inducement, enticement, or coercion of a child
to engage in, or assist another person to engage in, sexually
explicit conduct or the rape, molestation, prostitution, or
other form of sexual exploitation of children, or incest with
children.” Id. at 995 (quoting 18 U.S.C. § 3509(a)(8)).
Three of our sister circuits have concluded that the BIA,
in its discussion of Section 3509(a)(8) in Rodriguez-Rodriguez,
adopted that statute as its definition of “sexual abuse” for
purposes of determining whether a state offense qualifies as
“sexual abuse of a minor” under Subsection A. See Mugalli v.
Ashcroft, 258 F.3d 52, 58-59 (2d Cir. 2001) (describing
Rodriguez-Rodriguez as adopting a definition applicable
nationwide); Restrepo v. Attorney Gen., 617 F.3d 787, 792, 795-
96 (3d Cir. 2010) (deferring under Chevron to the BIA’s
“definition” in Rodriguez-Rodriguez by reference to § 3509(a));
see also Velasco-Giron v. Holder, 773 F.3d 774, 776 (7th Cir.
15
2014), cert. denied sub nom. Velasco-Giron v. Lynch, 2015 U.S.
LEXIS 3016 (May 4, 2015) (explaining that the Seventh Circuit
repeatedly has applied Chevron deference to the BIA’s
“reasonable approach” in Rodriguez-Rodriguez). Respectfully, we
disagree with this conclusion reached by our sister circuits.
Although the BIA recognized that the broad definition in
Section 3509(a)(8) is consistent with the common understanding
of “sexual abuse,” the BIA expressly stated that it was “not
adopting [that] statute as a definitive standard or definition”
for purposes of application in Subsection A. Rodriguez-
Rodriguez, 22 I. & N. Dec. at 996 (emphasis added). Instead,
the BIA “invoke[d] [the definition in Section 3509(a)(8)] as a
guide in identifying the types of crimes [it] would consider to
be sexual abuse of a minor.” Id. at 996 (emphasis added).
We therefore conclude that the BIA did not adopt in
Rodriguez-Rodriguez a particular definition of the generic
federal crime of “sexual abuse of a minor” for application of
Subsection A. We observe that the Ninth Circuit drew a similar
distinction in declining to defer to Rodriguez-Rodriguez, by
focusing on the BIA’s adoption of an “advisory guideline” rather
than a “uniform definition” of “sexual abuse of a minor.”
Estrada-Espinoza, 546 F.3d at 1157.
Using Section 3509(a)(8) as a “guide,” the BIA held in
Rodriguez-Rodriguez that the crime of “sexual abuse of a minor”
16
in Subsection A was broad enough to encompass the Texas statute
of “indecency with a child by exposure,” because the generic
federal offense does not require as an element that the
perpetrator have physical contact with the victim. 22 I. & N.
Dec. at 996. Beyond this limited holding, however, the BIA did
not provide direction regarding the elements of the generic
federal crime of “sexual abuse of a minor.” See Estrada-
Espinoza, 546 F.3d at 1157-58 (explaining that Rodriguez-
Rodriguez did not offer a particularized meaning of the generic
offense necessary to perform a Taylor analysis).
The methodology employed in Rodriguez-Rodriguez stands in
stark contrast with the BIA’s approach in Castillo, in which the
Board provided a fixed definition of the generic federal crime
of “theft offense” in 8 U.S.C. § 1101(a)(43)(G), 6 another
removable offense listed in the aggravated felony statute. See
Castillo, 776 F.3d at 266-67 (describing the BIA’s definition of
“theft offense” articulated in In re V-Z-S-, 22 I. & N. Dec.
1338 (B.I.A. 2000) and refined in In re Garcia-Madruga, 24 I. &
N. Dec. 436 (B.I.A. 2008)). Based on the BIA’s interpretation
of the generic crime of “theft offense” and the Board’s adoption
of a definition with distinct elements, reviewing courts are
6
The aggravated felony statute lists as a removable offense
in subsection (a)(43)(G): “a theft offense (including receipt of
stolen property) or burglary offense for which the term of
imprisonment is at least one year.”
17
able to apply that definition to determine whether a particular
state offense is encompassed within the generic federal crime.
See id. at 270 (holding that Virginia statutory crime of
unauthorized use of a vehicle did not categorically match
definition of “theft offense”); see also Omargharib v. Holder,
775 F.3d 192, 197 & n.9 (4th Cir. 2014) (concluding that
Virginia statutory crime of larceny did not categorically match
definition of “theft offense”); Almeida v. Holder, 588 F.3d 778,
789 (2d Cir. 2009) (holding that conviction for second-degree
larceny in Connecticut fell within definition of “theft
offense”).
Because the BIA did not supply a definition of the crime of
“sexual abuse of a minor” in Rodriguez-Rodriguez, the portion of
that opinion subject to Chevron deference is limited to the
conclusion: (1) that the generic federal offense does not
require as an element that the perpetrator have physical contact
with the victim; and (2) that the Texas statute of “indecency
with a child by exposure” falls within Subsection A. See
Rodriguez-Rodriguez, 22 I. & N. Dec. at 996; see also Aguirre-
Aguirre, 526 U.S. at 424-25 (holding that BIA’s interpretation
of a term in the INA warrants Chevron deference when BIA “gives
ambiguous statutory terms concrete meaning through a process of
case-by-case adjudication”) (citation and internal quotation
marks omitted).
18
iii.
We therefore turn to consider the BIA’s decision that Amos
is subject to removal based on his violation of the former
Maryland statute. Because the decision is not afforded
precedential weight, we apply the principles of deference
articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944).
See Martinez, 740 F.3d at 909-10. Under the holding in
Skidmore, we may defer to the agency’s opinion, based on the
agency’s “body of experience and informed judgment.” 323 U.S.
at 140. However, the degree of deference that we accord depends
on our consideration of the persuasiveness of the BIA’s analysis
as demonstrated by its thoroughness, validity of reasoning, and
consistency with other decisions. Id.
As we have explained, in deciding whether an underlying
state conviction falls within the meaning of a generic federal
offense, we typically would compare the elements of the generic
federal offense of “sexual abuse of a minor” with the statutory
elements of the former Maryland crime of sexual abuse of a
child. However, because the BIA has not defined the generic
federal offense, either in Rodriguez-Rodriguez or in the present
case, such an analysis is impossible to perform in the typical
manner. See Estrada-Espinoza, 546 F.3d at 1158 (explaining that
“[w]ithout defined elements, a comparison of the state statute
with the federally-defined generic offense is not possible”).
19
In concluding that Amos’s Maryland conviction qualifies as
an aggravated felony under Subsection A, the BIA opined that the
“least culpable conduct” under the sexual abuse portion of the
former Maryland statute, namely, the “failure to act to prevent
sexual abuse” of a child when “one has a duty to do so,” is
encompassed within the generic federal crime of “sexual abuse of
a minor.” 7 See Degren, 722 A.2d at 899. To support its
conclusion, the Board cited the holding of Rodriguez-Rodriguez
that the generic federal offense does not require that the
defendant make physical contact with the child victim. The
Board also relied on the discussion of Section 3509(a)(8) in
Rodriguez-Rodriguez, and its characterization of the term
“sexual abuse” as covering a “broad range” of sexual misconduct.
We are not persuaded by the BIA’s analysis. Although the
BIA in Rodriguez-Rodriguez held that the offense of “sexual
abuse of a minor” under the INA does not require physical
7
Although the former Maryland crime of “child abuse” is
quite broad and included facially divisible crimes involving
both physical abuse or sexual abuse, only the sex abuse portion
of that statute potentially qualifies as a removable offense
under Subsection A. Because we ultimately conclude that the
former Maryland crime of sexual abuse of a child does not
qualify as “sexual abuse of a minor” under Subsection A, we need
not consult Amos’s underlying conviction record to determine
which portion of the facially divisible statute formed the basis
of his conviction. See Cabrera-Umanzor, 728 F.3d at 352 (for
application of the modified categorical approach, which requires
consultation of the underlying record, “one of the categories
into which the statute may be divided” must constitute, “by its
elements,” the generic federal offense (emphasis omitted)).
20
contact with the victim, and such contact also is not required
under the relevant portion of the Maryland statute, see Walker
v. State, 69 A.3d 1066, 1085-86 (Md. 2013) (discussing current
versions of the statute), that conclusion does not resolve the
issue issue before us. We still are faced with the question
whether the failure to act to prevent sexual abuse, the least
culpable conduct under the relevant portion of the former
Maryland statute, is encompassed within the offense of “sexual
abuse of a minor” for purposes of subsection A.
The BIA’s reference in this case to Section 3509(a)(8)
likewise offers no assistance in resolving the question before
us. The BIA merely noted that, in Rodriguez-Rodriguez, the
Board stated that Section 3509(a)(8) defined the term “sexual
abuse” as including “a broad range of maltreatment of a sexual
nature.” That assessment, however, does not clarify the scope
of the generic federal crime, or explain why the conduct of
failing to act to prevent sexual abuse is included within that
undefined scope.
As set forth above, Section 3509(a)(8) describes “sexual
abuse” as the “employment, use, persuasion, inducement,
enticement, or coercion of a child to engage in, or assist
another person to engage in, sexually explicit conduct or the
rape, molestation, prostitution, or other form of sexual
exploitation of children, or incest with children.” (emphasis
21
added). This “guide” cited by the BIA describes affirmative
acts by a perpetrator acting as a principal in the commission of
acts of sexual abuse, as well as affirmative acts by one who is
“assisting” another in the commission of acts of sexual abuse.
Even if the generic federal offense of “sexual abuse of a minor”
encompasses all forms of “assisting” another in committing
sexual abuse, the former Maryland statute applies to conduct
beyond the affirmative act of providing such assistance. In
Degren, the Court of Appeals of Maryland emphasized that sexual
abuse includes both “the affirmative acts of watching and
failing to intervene” in sexual abuse and the “omission or
failure to act when a child is being sexually abused.” 722 A.2d
at 899. Thus, contrary to the BIA’s analysis, the “guide”
provided by Section 3509(a)(8) does not support a conclusion
that the failure to act to prevent child abuse, the least
culpable conduct under the former Maryland statute, necessarily
is encompassed within the generic offense of “sexual abuse of a
minor” in Subsection A.
Accordingly, we are not persuaded by the BIA’s analysis or
its conclusion that the term “sexual abuse of a minor” under
Subsection A necessarily encompasses the failure to act to
prevent sexual abuse, the least culpable conduct under the
former Maryland statute. We therefore hold that the BIA erred
as a matter of law in concluding that Amos’s conviction of child
22
abuse under the former Maryland statute qualifies as an
aggravated felony under Subsection A. See Castillo, 776 F.3d at
267.
III.
For these reasons, we grant Amos’s consolidated petitions
for review, and we vacate the order for his removal.
PETITIONS FOR REVIEW GRANTED
AND ORDER OF REMOVAL VACATED
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