Rafael Larios-Reyes v. Loretta Lynch

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2170
RAFAEL ANTONIO LARIOS-REYES, a/k/a Rafael A. Reyes,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 21, 2016 Decided: December 6, 2016
Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.
Petition for review granted and order of removal vacated by
published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Niemeyer and Judge Harris joined.
ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner. Karen L. Melnik,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Himedes V. Chicas, JEZIC & MOYSE, LLC,
Silver Spring, Maryland, for Petitioner. Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Derek C. Julius,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
GREGORY, Chief Judge:
Rafael Antonio Larios-Reyes, a native and citizen of El
Salvador, seeks review of the decision of the Board of
Immigration Appeals (“BIA”) finding him removable based on his
conviction for “Third Degree Sex Offense” under Maryland
Criminal Law Article § 3-307. The BIA determined that Larios-
Reyes’s state conviction qualifies as the aggravated felony of
“sexual abuse of a minor” under § 1101(a)(43)(A) of the
Immigration and Nationality Act (“INA”) and affirmed the
immigration judge’s finding that Larios-Reyes is therefore
removable. We find that the BIA erred as a matter of law and
hold that Larios-Reyes’s conviction does not constitute the
aggravated felony of “sexual abuse of a minor” under the INA
because Maryland Criminal Law Article § 3-307 proscribes more
conduct than does the generic federal offense. We therefore
grant Larios-Reyes’s petition for review, vacate the order of
removal, and order his immediate release from Department of
Homeland Security (“DHS”) custody.
I.
Larios-Reyes entered the United States as a lawful
permanent resident in 1999, when he was four years old.
Administrative Record (“A.R.”) 450. On August 5, 2013, Larios-
Reyes was charged with “Sex Offense Second Degree” in violation
2
of Maryland Criminal Law Article § 3-306 and “Sex Abuse Minor”
in violation of § 3-602(b)(1). Id. at 765. On September 13,
2013, Larios-Reyes was indicted on both counts. Id. at 762-63.
In May 2014, Larios-Reyes and the State of Maryland reached
a plea agreement. The State dismissed the “Sex Abuse Minor”
charge and amended the “Sex Offense Second Degree” charge to the
lesser charge of “Third Degree Sex Offense” under § 3-307. Id.
at 756, 769. Larios-Reyes pleaded guilty to the amended second
charge, which states that
RAFAEL ANTONIO REYES (date of birth 09/16/94), on or
about and between November 1, 2012, and November 30,
2012[,] . . . in Montgomery County, Maryland, did
commit a sexual offense in the third degree on
[victim] (date of birth 05/23/08), to wit: fellacio,
in violation of Section 3-307 of the Criminal Law
Article against the peace, government, and dignity of
the State.
Id. at 763.
The Maryland statute under which Larios-Reyes was convicted
provides that
(a) A person may not:
(1) (i) engage in sexual contact with
another without the consent of the
other; and
(ii) 1. employ or display a dangerous
weapon, or a physical object that
the victim reasonably believes is
a dangerous weapon;
2. suffocate, strangle, disfigure,
or inflict serious physical
injury on the victim or another
3
in the course of committing the
crime;
3. threaten, or place the victim in
fear, that the victim, or an
individual known to the victim,
imminently will be subject to
death, suffocation, strangula-
tion, disfigurement, serious
physical injury, or kidnapping;
or
4. commit the crime while aided and
abetted by another;
(2) engage in sexual contact with another if
the victim is a mentally defective
individual, a mentally incapacitated
individual, or a physically helpless
individual, and the person performing
the act knows or reasonably should know
the victim is a mentally defective
individual, a mentally incapacitated
individual, or a physically helpless
individual;
(3) engage in sexual contact with another if
the victim is under the age of 14 years,
and the person performing the sexual
contact is at least 4 years older than
the victim;
(4) engage in a sexual act with another if
the victim is 14 or 15 years old, and
the person performing the sexual act is
at least 21 years old; or
(5) engage in vaginal intercourse with
another if the victim is 14 or 15 years
old, and the person performing the act
is at least 21 years old.
Md. Code Ann., Crim. Law § 3-307 (2002).
The Circuit Court for Montgomery County, Maryland,
sentenced Larios-Reyes to 364 days in prison, all suspended, and
4
five years of supervised probation and medical treatment. It
also ordered him to register as a sexual offender. A.R. 769-73.
In July 2014, when Larios-Reyes failed to report to his
probation officer or register as a sexual offender, the court
issued a warrant for his arrest. Id. at 778-81. Larios-Reyes
was arrested approximately one month later and ordered held
without bond. Id. at 757.
In October 2014, DHS issued Larios-Reyes a notice to
appear. DHS charged him with removability based on his
conviction under § 3-307, which DHS contended constituted the
aggravated felony of “sexual abuse of a minor” under
§ 1101(a)(43)(A) of the INA. Id. at 822. On March 27, 2015,
the immigration judge upheld the charge of removability and
ordered Larios-Reyes removed from the United States to El
Salvador. Id. at 397. Larios-Reyes appealed to the BIA.
There was no dispute on appeal that a conviction under § 3-
307--without more information on what part of § 3-307 Larios-
Reyes violated--would not constitute “sexual abuse of a minor”
under the INA. What the parties contested was whether the BIA
could consider a narrower portion of § 3-307 to determine if the
particular elements of Larios-Reyes’s conviction constituted
“sexual abuse of a minor.” The questions for the BIA, then,
were (1) whether § 3-307 is a divisible statute, meaning that it
creates multiple alternative offenses, at least one of which
5
constitutes “sexual abuse of a minor,” and if so, (2) what
portion of § 3-307 Larios-Reyes was necessarily convicted of,
and (3) whether the elements of Larios-Reyes’s conviction
matched the elements of the generic federal offense.
In an unpublished opinion issued by a single member, the
BIA first concluded that § 3-307 is a divisible statute because
it “create[s] multiple versions of the crime of sexual offense
in the third degree.” Id. at 4. The BIA then reviewed the
record of conviction and concluded that Larios-Reyes was
convicted under § 3-307(a)(3). The BIA enumerated the
“essential elements of an offense under § 3-307(a)(3)” as “that
the defendant had sexual contact with the victim, that the
victim was under 14 years of age at the time of the act, and
that the defendant was at least 4 years older than the victim.”
Id. It further found that although the conduct specified in the
indictment--fellatio--falls within the definition of “sexual
act” under Maryland law, “such conduct is also encompassed by
the definition of ‘sexual contact,’” id. at 4 n.3, which is the
conduct element in § 3-307(a)(3).
The BIA then concluded that an offense under § 3-307(a)(3)
categorically constitutes “sexual abuse of a minor” under the
INA. Id. at 5. In reaching this conclusion, the BIA did not
adopt a definition of the generic federal offense. Nor did it
refer directly to any interpretations set forth in either BIA or
6
Fourth Circuit precedent. Instead, it compared § 3-307(a)(3)’s
elements to the elements of a California statute that the BIA
had determined constituted the federal generic offense of
“sexual abuse of a minor” in In re Esquivel-Quintana, 26 I. & N.
Dec. 469 (B.I.A. 2015), aff’d, Esquivel-Quintana v. Lynch, 810
F.3d 1019 (6th Cir. 2016), cert. granted, No. 16-54, 2016 WL
3689050 (U.S. Oct. 28, 2016). A.R. 4-5. The BIA here held that
because § 3-307(a)(3)’s elements are narrower than the
California statute’s, § 3-307(a)(3) also categorically matches
the generic federal offense.
The BIA accordingly affirmed the immigration judge’s
determination that Larios-Reyes is removable as an alien
convicted of an aggravated felony under § 1101(a)(43)(A) of the
INA, and it dismissed his appeal. Larios-Reyes timely filed
this petition for review of the BIA’s decision.
II.
We generally lack jurisdiction to review any final order of
removal against an alien removable as an aggravated felon.
8 U.S.C. § 1252(a)(2)(C); Kporlor v. Holder, 597 F.3d 222, 225–
26 (4th Cir. 2010). We have limited jurisdiction, however, to
review constitutional claims or questions of law, including
whether a conviction qualifies as an aggravated felony.
8 U.S.C. § 1252(a)(2)(D); Amos v. Lynch, 790 F.3d 512, 517 (4th
7
Cir. 2015). We review this question of law de novo. Castillo
v. Holder, 776 F.3d 262, 267 (4th Cir. 2015).
A.
Under the INA, an alien is removable if he or she is
“convicted of an aggravated felony at any time after admission.”
8 U.S.C. § 1227(a)(2)(A)(iii). The INA contains a long list of
crimes that qualify as an “aggravated felony,” including “sexual
abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).
To determine whether Larios-Reyes’s conviction under § 3-
307 qualifies as “sexual abuse of a minor” under the INA, we
would usually apply the categorical approach set forth in Taylor
v. United States, 495 U.S. 575 (1990). Under this approach, we
ask 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)). We answer this by
first considering the elements of the generic federal crime.
See Taylor, 495 U.S. at 590. The state statute is a categorical
match with the federal definition “only if a conviction of the
state offense ‘“necessarily” involved . . . facts equating to
[the] generic [federal offense].’” Moncrieffe, 133 S. Ct. at
1684 (quoting Shepard v. United States, 544 U.S. 13, 24 (2005))
(alterations in original). We therefore “focus on the minimum
8
conduct necessary for a violation of the state statute, while
ensuring that there is a ‘realistic probability, not a
theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a
crime.’” Castillo, 776 F.3d at 267–68 (quoting Gonzales, 549
U.S. at 193). We look to the decisions of Maryland’s appellate
courts to see both the minimum conduct to which the statute has
been applied and those courts’ pronouncements on the minimum
conduct to which the statute might be applied. See id. at 268.
And “‘[t]o the extent that the statutory definition of [§ 3-
307(a)(3)] has been interpreted’ by the state’s appellate
courts, ‘that interpretation constrains our analysis of the
elements of state law.’” Id. (quoting United States v.
Aparicio–Soria, 740 F.3d 152, 154 (4th Cir. 2014)).
Here, the parties do not dispute that under the categorical
approach, § 3-307 is broader than any conceivable federal
definition of “sexual abuse of a minor” because § 3-307
enumerates several offenses that do not require the victim to be
a minor. See Md. Code Ann., Crim. Law § 3-307(a)(1), (2).
Under the categorical approach, then, Larios-Reyes would easily
prevail. But the Supreme Court has recognized a “narrow range
of cases” in which courts, when faced with an overbroad but
“divisible” statute, may consider whether a portion of the
statute is a categorical match to the federal generic
9
definition. Descamps v. United States, 133 S. Ct. 2276, 2284
(2013) (quoting Taylor, 495 U.S. at 602). This is called the
“modified categorical approach.”
In order for a court to apply the modified categorical
approach, a statute must be “divisible.” A statute is divisible
when it (1) “sets out one or more elements of the offense in the
alternative,” and (2) at least one of those elements or sets of
elements corresponds to the federal definition at issue. Id. at
2281; see also United States v. Cabrera-Umanzor, 728 F.3d 347,
352 (4th Cir. 2013) (stating that “general divisibility [] is
not enough; a statute is divisible . . . only if at least one of
the categories . . . constitutes, by its elements, [an
aggravated felony]”). For the first prong, the focus is on the
statute’s elements, not the facts of the crime. Then, the
inquiry is whether the statute has listed “multiple, alternative
elements, . . . effectively creat[ing] ‘several different . . .
crimes.’” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v.
Holder, 557 U.S. 29, 41 (2009)). The Supreme Court has
emphasized that a statute setting forth merely alternative means
of committing an offense will not satisfy this requirement.
Mathis v. United States, 136 S. Ct. 2243, 2255 (2016). This is
because a federal penalty may be imposed based only on what a
jury necessarily found or what a defendant necessarily pleaded
10
guilty to, and the means of commission is not necessary to
support a conviction. Id.
If a statute is divisible, then the modified categorical
approach is appropriate. This approach permits courts to
“examine a limited class of documents,” known as Shepard
documents, 1 “to determine which of a statute’s alternative
elements formed the basis of the defendant’s prior conviction.”
Descamps, 133 S. Ct. at 2284. It is then possible to compare
the particular elements of the conviction, rather than the
elements of the statute as a whole, to the federal generic
definition.
The Supreme Court has “underscored the narrow scope of” the
modified categorical approach. Id. It is “to identify, from
among several alternatives, the crime of conviction so that the
court can compare it to the generic offense.” Id. at 2285. The
Court has made clear that review under this approach “does not
authorize a sentencing court to substitute [] a facts-based
inquiry for an elements-based one. A court may use the modified
1 Shepard documents “includ[e] charging documents, plea
agreements, transcripts of plea colloquies, findings of fact and
conclusions of law from a bench trial, and jury instructions and
verdict forms.” Johnson v. United States, 559 U.S. 133, 144
(2010); see also Shepard, 544 U.S. at 26 (listing documents that
a reviewing court may consider). And in this Circuit, courts
may also consider applications for statements of charges and
statements of probable cause, so long as the statements are
expressly incorporated into the statement of charges itself.
United States v. Donnell, 661 F.3d 890, 894-96 (4th Cir. 2011).
11
approach only to determine which alternative element in a
divisible statute formed the basis of the defendant’s
conviction.” Id. at 2293. Once a court has made this
determination, it can compare that part of the statute to the
generic federal offense using the traditional categorical
approach, which remains centered on elements, not facts. Id. at
2285 (stating that the modified categorical approach “preserves
the categorical approach’s basic method”). And where an element
of the conviction is defined to include multiple alternative
means, courts must consider all of those means; an element is
not further divisible into its component parts. See id. at
2291; see also Mathis, 136 S. Ct. at 2255-57.
To begin this analysis, we must determine whether § 3-307
is a divisible statute. We agree with the BIA that it is. We
recently held in United States v. Alfaro, 835 F.3d 470, 473 (4th
Cir. 2016), that § 3-307 lists alternative sets of elements that
create multiple versions of the crime of third-degree sexual
offense. Alfaro thus confirms that § 3-307 meets the first
prong of the divisibility inquiry. Alfaro does not, however,
resolve the second prong of the divisibility test, which is
whether any set of elements in § 3-307 constitutes “sexual abuse
of a minor.”
In Alfaro, we held that § 3-307 is divisible, but we were
comparing § 3-307 to “crime of violence” under the Sentencing
12
Guidelines. Id. Here, we must determine whether any set of
elements in § 3-307 constitutes an “aggravated felony” under the
INA--a question not answered by Alfaro. We emphasize the point
that a statute might be divisible as compared to one federal
statute and not divisible as compared to another. Whether any
set of elements meets the generic federal definition will vary
depending on the generic federal definition at issue. The
second prong of the divisibility inquiry sometimes merits less
discussion, see id., but it is an important--and required--step
in the analysis. 2 Here, at least one set of elements in § 3-307
must qualify as “sexual abuse of a minor” in order for the
statute to be divisible.
We find that at least the set of elements in § 3-307(a)(5)
constitutes “sexual abuse of a minor” under the INA. Section 3-
307(a)(5) prohibits “engag[ing] in vaginal intercourse with
another if the victim is 14 or 15 years old, and the person
performing the act is at least 21 years old.” This clearly
constitutes “sexual abuse of a minor” under any conceivable
2 Indeed, had the petitioner here recognized that Alfaro
only answered the first prong of the divisibility inquiry, he
might not have conceded at oral argument that Alfaro
conclusively establishes that § 3-307 is a divisible statute in
this case.
13
federal generic definition. 3 Because at least one set of
elements matches the generic federal offense, the second prong
of the divisibility inquiry is satisfied. Section 3-307 is thus
a divisible statute for purposes of its comparison with INA
§ 1101(a)(43)(A), and we may use the modified categorical
approach to determine which statutory elements formed the basis
of Larios-Reyes’s conviction and whether those elements match
the federal generic definition.
The Shepard documents show that Larios-Reyes was convicted
under the elements listed in § 3-307(a)(3), “sexual contact with
another if the victim is under the age of 14 years, and the
person performing the sexual contact is at least 4 years older
than the victim.” The factual basis for Larios-Reyes’s plea
details one instance in which Larios-Reyes asked the victim to
touch his erect penis, which she did for 2-3 minutes, and two
instances in which Larios-Reyes asked the victim to perform
fellatio on him, which she did for 2-3 seconds each time. A.R.
767-68. Fellatio is specifically categorized as a “sexual act”
under Maryland law. See Md. Code Ann., Crim. Law § 3-301(d)(1).
Fellatio could also qualify as “sexual contact,” which Maryland
defines as “an intentional touching of the victim’s or actor’s
3And it certainly matches the definition that we proceed to
adopt here in Section II.C.
14
genital, anal, or other intimate area for sexual arousal or
gratification, or for the abuse of either party.” Id. § 3-
301(e)(1); see Partain v. State, 492 A.2d 669, 672-73 (Md. Ct.
Spec. App. 1985) (holding that cunnilingus constitutes both
“sexual act” and “sexual contact”). The Shepard documents thus
reveal that an element of Larios-Reyes’s conviction was either
“sexual act” or “sexual contact.” The Shepard documents also
establish the age elements of the offense. Larios-Reyes was
eighteen years old, and the victim was four years old.
Therefore, Larios-Reyes necessarily pleaded guilty to all of
§ 3-307(a)(3)’s elements, 4 and we affirm the BIA’s finding that
Larios-Reyes was convicted under § 3-307(a)(3).
B.
Having established that § 3-307 is a divisible statute and
that Larios-Reyes was convicted under § 3-307(a)(3), we now turn
4 The Shepard documents eliminate § 3-307(a)(4) and (a)(5)
as the basis for the conviction because they both require that
the victim be “14 or 15 years old” and that “the person
performing the sexual act [be] at least 21 years old.” Neither
element is satisfied here, because at the time of the offense,
the victim was four years old and Larios-Reyes was eighteen
years old. The Shepard documents also reveal that Larios-Reyes
was not convicted under § 3-307(a)(1) or (a)(2). The documents
do not indicate that Larios-Reyes engaged in sexual contact with
the victim under any of the aggravating circumstances listed in
§ 3-307(a)(1). Nor do the documents contain any evidence that
the victim was “a substantially cognitively impaired individual,
a mentally incapacitated individual, or a physically helpless
individual,” as required by § 3-307(a)(2). Therefore, there is
no factual basis to support the conclusion that Larios-Reyes was
necessarily convicted under any of these subsections.
15
to whether § 3-307(a)(3)’s elements categorically match the
elements of the generic federal definition of “sexual abuse of a
minor.” A threshold question that we must answer before we can
compare these statutes is how to define “sexual abuse of a
minor.” The INA does not define it, and this Court has not done
so in a published opinion interpreting the INA. Therefore, we
must consider the BIA’s interpretation of this generic federal
offense, because under Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984), we are required to
defer to the BIA’s precedential interpretation of a “silent or
ambiguous” statute so long as that interpretation is not
“arbitrary, capricious, or manifestly contrary to the statute,”
id. at 844.
Although the BIA’s decision here is not precedential
because it is unpublished and was issued by a single Board
member, it relied on a precedential BIA decision, Esquivel-
Quintana. We therefore must determine whether that decision
warrants deference. See Hernandez v. Holder, 783 F.3d 189, 192
(4th Cir. 2015).
The BIA in Esquivel-Quintana considered whether the
California offense of “unlawful intercourse with a minor”
categorically constitutes “sexual abuse of a minor” under the
INA. 26 I. & N. Dec. 469. In concluding that it was a
categorical match, the BIA did not adopt a definition of the
16
federal offense to which we might defer here. Instead, it
relied on the interpretive framework set forth in In re
Rodriguez–Rodriguez, 22 I. & N. Dec. 991, 996 (B.I.A. 1999).
Esquivel-Quintana, 26 I. & N. Dec. at 470-71. We therefore must
consider that framework.
In Rodriguez–Rodriguez, the BIA looked to 18 U.S.C.
§ 3509(a)(8)--a statute that provides procedural protections for
child victims and witnesses and that lists crimes constituting
“sexual abuse”--and determined that it might serve “as a guide
in identifying the types of crimes [the BIA] would consider to
be sexual abuse of a minor.” 5 Rodriguez–Rodriguez, 22 I. & N.
Dec. at 996. The BIA expressly stated that it was “not adopting
[that] statute as a definitive standard or definition” for
purposes of § 1101(a)(43)(A) of the INA. Id. For that reason,
we held in Amos v. Lynch that there was no statutory
interpretation to which to defer under Chevron and that 18
U.S.C. § 3509(a)(8) might provide guidance but was not the
“interpretive touchstone” for determining whether a state
5 Under 18 U.S.C. § 3509(a)(8), “the term ‘sexual abuse’
includes 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.”
17
conviction qualifies as a removable offense. 6 790 F.3d at 519-
20. We also pointed out that because § 3509(a)(8) “includ[es]
‘a broad range of maltreatment of a sexual nature,’” it “does
not clarify the scope of the generic federal crime” of “sexual
abuse of a minor.” Id. at 522 (quoting Rodriguez-Rodriguez, 22
I. & N. Dec. at 996). Accordingly, we cast serious doubt on the
usefulness of Rodriguez-Rodriguez’s interpretive approach.
In Esquivel-Quintana, the BIA relied on Rodriguez-Rodriguez
to support its conclusion and did not adopt a definition of the
generic federal offense of “sexual abuse of a minor.” Esquivel-
Quintana, 26 I. & N. Dec. at 470-71. Therefore, we need not
6The Ninth and Tenth Circuits have similarly declined to
give Chevron deference to Rodriguez-Rodriguez. Rangel-Perez v.
Lynch, 816 F.3d 591, 598-99 (10th Cir. 2016) (citing Amos and
agreeing that “Rodriguez-Rodriguez . . . did not establish 18
U.S.C. § 3509(a) as the exclusive touchstone for defining the
elements of the INA’s ‘sexual abuse of a minor’ category of
‘aggravated’ felonies”); Estrada-Espinoza v. Mukasey, 546 F.3d
1147, 1157 (9th Cir. 2008) (en banc), overruled 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, 133 S. Ct.
2276 (“Chevron deference does not apply in these circumstances
because Rodriguez–Rodriguez did not interpret a statute within
the meaning of Chevron, but only provided a ‘guide’ for later
interpretation.”).
We acknowledge that three of our sister circuits have held
that Rodriguez-Rodriguez adopted § 3509(a) as the definition of
“sexual abuse of a minor” under the INA. See Velasco–Giron v.
Holder, 773 F.3d 774, 776 (7th Cir. 2014), cert. denied sub nom.
Velasco–Giron v. Lynch, 135 S. Ct. 2072 (2015); Restrepo v.
Attorney Gen., 617 F.3d 787, 792, 795–96 (3d Cir. 2010); Mugalli
v. Ashcroft, 258 F.3d 52, 58–59 (2d Cir. 2001). But as we
stated in Amos, we respectfully disagree with these circuits’
decisions. 790 F.3d at 519.
18
give Chevron deference to Esquivel-Quintana for the same reason
we declined to give it to Rodriguez–Rodriguez: the BIA did not
adopt a federal generic definition of “sexual abuse of a minor.”
Indeed, the Sixth Circuit confirmed that the BIA’s approach is
“to interpret [‘sexual abuse of a minor’] through case-by-case
adjudication.” Esquivel-Quintana, 810 F.3d at 1026.
In sum, the BIA here issued a nonprecedential decision to
which we need not defer. The BIA did rely on a precedential
decision, Esquivel-Quintana, that might guide our review, but we
already held in Amos that this approach is not due any Chevron
deference. Therefore, we are not required to give Chevron
deference to either the BIA’s opinion here or to Esquivel-
Quintana. 7
We are thus left to consider the BIA’s determination that
§ 3-307(a)(3) constitutes “sexual abuse of a minor” under the
INA using the principles outlined in Skidmore v. Swift & Co.,
323 U.S. 134 (1944). Under the Skidmore framework, which
prescribes a more modest amount of deference, “we may defer to
7The BIA’s other findings in Esquivel-Quintana are entitled
to Chevron deference, but they do not concern the issue here.
These include that (1) the generic federal offense of “sexual
abuse of a minor” requires a meaningful age difference between
the victim and the perpetrator, and (2) California Penal Code
§ 261.5(c) categorically constitutes “sexual abuse of a minor”
under § 1101(a)(43)(A) of the INA. Esquivel-Quintana, 26 I. &
N. Dec. at 477.
19
the agency’s opinion, based on the agency’s ‘body of experience
and informed judgment,’” but “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.” Amos, 790
F.3d at 521 (quoting Skidmore, 323 U.S. at 140).
We are not persuaded by the BIA’s analysis. Before the BIA
could answer the question whether a conviction under § 3-
307(a)(3) constitutes the aggravated felony of “sexual abuse of
a minor,” it had to compare § 3-307(a)(3)’s elements to the
elements of the federal offense. But here, the BIA did not
establish the elements of the federal offense. In fact, it did
not even explain what federal definition it was using. Instead,
the BIA compared § 3-307(a)(3)’s elements to the elements of a
California statute that was found to constitute “sexual abuse of
a minor.”
This approach is problematic for two reasons. First, the
California statute was found to be a categorical match using the
Rodriguez-Rodriguez framework, which we have held is neither due
any deference nor is particularly useful as an interpretive
tool. See Amos, 790 F.3d at 521-22. And second, the Supreme
Court has made clear that the categorical approach requires a
comparison of the elements of the state statute of conviction to
the elements of the generic federal offense, see Moncrieffe, 133
20
S. Ct. at 1684, not to the elements of another state’s statute
of conviction. By attempting to fit § 3-307(a)(3) within the
elements of a California statute, the BIA essentially used
California law to determine whether a Maryland conviction
constituted a removable offense under federal law.
Even if this type of statutory comparison was a reasonable
way to determine whether § 3-307(a)(3) matches the generic
federal definition of “sexual abuse of a minor,” the BIA erred
in its analysis. It failed to determine what conduct the
California statute encompassed and whether that conduct was also
proscribed by § 3-307(a)(3). Had the BIA done so, it might have
seen its mistake.
The BIA concluded that because the “offense [in Esquivel-
Quintana] with the elements of ‘(1) unlawful sexual intercourse
(2) with a minor under 18 years old (3) who is more than 3 years
younger than the perpetrator’ categorically constitutes sexual
abuse of a minor,” then § 3-307(a)(3), which “include[s] a
younger victim and a greater age difference than the
corresponding elements in the statute at issue in Matter of
Esquivel-Quintana,” also constitutes “sexual abuse of a minor”
under the INA. A.R. 4-5. The BIA held this “notwithstanding
that the ‘sexual contact’ proscribed by [§ 3-307(a)(3)] may
potentially be less egregious than the ‘unlawful sexual
intercourse’” in Esquivel-Quintana. Id. at 5. This is entirely
21
incorrect. That § 3-307(a)(3) criminalizes “potentially . . .
less egregious” conduct than the California statute in Esquivel-
Quintana is precisely the reason that the California statute has
no utility as a comparator--and in fact suggests that § 3-
307(a)(3) is more likely not to constitute the generic federal
offense.
Ultimately, we conclude that the BIA’s decision on this
question is not entitled to Skidmore deference. While we
recognize that the agency has a wealth of immigration expertise,
we find that the BIA was neither thorough in its analysis, valid
in its reasoning, nor consistent with precedent in the BIA or
the Fourth Circuit. See Amos, 790 F.3d at 521 (citing Skidmore,
323 U.S. at 140). Accordingly, we proceed to consider this
question of law de novo, without deferring to the BIA’s
determinations in this case.
C.
We begin by defining “sexual abuse of a minor.” We agree
with the petitioner that this Court has already established a
generic federal definition of “sexual abuse of a minor” in the
sentencing context and that the definition is equally applicable
here. In United States v. Diaz-Ibarra, we defined “sexual abuse
of a minor” for purposes of applying the Sentencing Guidelines.
522 F.3d 343 (4th Cir. 2008). We looked to the Eleventh
Circuit’s reasoning in United States v. Padilla-Reyes, 247 F.3d
22
1158 (11th Cir. 2001), an immigration case, and we adopted that
court’s definition wholesale. See Diaz-Ibarra, 522 F.3d at 351-
52.
In Padilla-Reyes, the court looked to the common meaning of
the phrase “sexual abuse of a minor.” 247 F.3d at 1163-64. It
determined that it made more sense to consider the phrase’s
plain meaning than to cross-reference other federal statutes,
because “where Congress intended an aggravated felony subsection
to depend on federal statutory law it explicitly included the
statutory cross-reference,” and so “the lack of an explicit
statutory reference in the § 1101(a)(43)(A) subsection indicates
Congress’s intent to rely on the plain meaning of the terms.”
Id. at 1164.
The Padilla-Reyes court explained that “[a]mong the
relevant definitions for abuse, Webster’s includes ‘misuse[;]
. . . to use or treat so as to injure, hurt, or damage[;] . . .
to commit indecent assault on[;] . . . the act of violating
sexually[;] . . . [and] rape or indecent assault not amounting
to rape.’” Id. at 1163. And “for sexual, Webster’s includes
‘of or relating to the sphere of behavior associated with
libidinal gratification.’” Id. The court concluded that “the
word ‘sexual’ in the phrase ‘sexual abuse of a minor’ indicates
that the perpetrator’s intent in committing the abuse is to seek
libidinal gratification,” and that the common understanding of
23
“abuse” in this context is that it does not require physical
contact. Id. The court therefore concluded that “the phrase
‘sexual abuse of a minor’ means a perpetrator’s physical or
nonphysical misuse or maltreatment of a minor for a purpose
associated with sexual gratification.” Id.
Significantly, the Eleventh Circuit in Padilla-Reyes
crafted the definition of “sexual abuse of a minor” in the
immigration context--under § 1101(a)(43)(A) of the INA. In
Diaz-Ibarra, we held that the Padilla-Reyes definition also
applies to “sexual abuse of a minor” under the Sentencing
Guidelines. 522 F.3d at 351-52. In doing so, we implied that
the federal generic definition of “sexual abuse of a minor” is
the same in the sentencing and immigration contexts.
This is further confirmed by the Commentary to the
Sentencing Guidelines in effect at the time, which stated that
“aggravated felony” under the Guidelines “has the meaning given
that term in section 101(a)(43) of the Immigration and
Nationality Act (8 U.S.C. § 1101(a)(43)).” U.S. Sentencing
Guidelines Manual § 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n
2007). 8 Because the crime is the same under the Sentencing
Guidelines and the INA, the definition of “sexual abuse of a
8The current Commentary to the Sentencing Guidelines
retains this language. See U.S. Sentencing Guidelines Manual
§ 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n 2015).
24
minor” adopted by this Court in the sentencing context is also
applicable in the immigration context. 9 And this makes sense,
because the utility of a “generic” definition is that it applies
in different contexts. To find otherwise would mean “sexual
abuse of a minor” has multiple “generic” federal definitions, an
outcome that ordinarily will contravene both the categorical
approach’s governing principles and common sense.
We now hold that the generic federal definition of “sexual
abuse of a minor” set forth in Diaz-Ibarra is applicable to the
INA. Therefore, under the INA, “‘sexual abuse of a minor’ means
the ‘perpetrator’s physical or nonphysical misuse or
maltreatment of a minor for a purpose associated with sexual
gratification.’” Diaz-Ibarra, 522 F.3d at 352 (quoting Padilla-
Reyes, 247 F.3d at 1163). And because we now have a definition
of the federal generic offense, we can determine whether a
9
The Fifth Circuit has made a similar observation in an
unpublished opinion. See Ramos-Garcia v. Holder, 483 F. App’x
926, 929 n.14 (5th Cir. 2012) (acknowledging that “[m]ost of the
cases discussing the definition of ‘sexual abuse of a minor’
under § 1101(a)(43) do so in a sentencing rather than an
immigration context,” but noting that it could find “no reason
. . . why those cases are not applicable [to the INA] for
purposes of determining the generic meaning of ‘sexual abuse of
a minor’ under the same statutory provision”). And in two
unpublished opinions, we have applied the Diaz-Ibarra definition
to “sexual abuse of a minor” under the INA. See Waffi v.
Mukasey, 285 F. App’x 26, 27 (4th Cir. 2008) (using Diaz-
Ibarra’s definition of “sexual abuse of a minor” to determine
whether the statute at issue categorically matched the offense
under the INA); Alvarado v. Holder, 398 F. App’x 942, 943 (4th
Cir. 2010) (same).
25
conviction under § 3-307(a)(3) categorically qualifies as that
federal offense.
D.
We reiterate that at this step in the analysis, our task is
to compare statutory elements only. We do not consider whether
Larios-Reyes’s actual conduct constitutes “sexual abuse of a
minor”; we ask only whether § 3-307(a)(3) matches the generic
federal definition. Shepard documents serve the limited purpose
of clarifying which element or set of elements create the basis
for the conviction. They have no role to play in our subsequent
comparison of that portion of the statute to the generic federal
offense. Accordingly, we now turn to consider the scope of § 3-
307(a)(3)’s elements.
Under Maryland law, “‘sexual contact,’ as used in [§] 3-
307[(a)(3)] . . . , means an intentional touching of the
victim’s or actor’s genital, anal, or other intimate area for
sexual arousal or gratification, or for the abuse of either
party.” Md. Code Ann., Crim. Law § 3-301(e)(1) (emphasis
added). “Sexual contact” is defined in the disjunctive, meaning
that there are multiple ways to accomplish it. Maryland courts
have held that the State need not show that a defendant acted
for the purpose of sexual gratification in order to be
convicted, because acting for such a purpose is just one of the
ways that a defendant’s conduct might constitute “sexual
26
contact.” See, e.g., Dillsworth v. State, 503 A.2d 734, 737
(Md. Ct. Spec. App. 1986), aff’d, 519 A.2d 1269 (Md. 1987)
(rejecting defendant’s argument that his conduct did not
constitute “sexual contact” because there was no evidence that
he acted for the purpose of “sexual arousal or gratification,”
and stating that “[t]o include the necessity to show sexual
arousal or gratification as a requisite of ‘abuse’ would be to
require an unnecessary redundancy--to use the words ‘for abuse’
in vain”). A showing that a defendant acted with the intent to
abuse could also sustain a conviction.
The Maryland Court of Special Appeals has interpreted
“abuse” in § 3-307 as not limited to “a physical attack intended
to inflict sexual injury.” LaPin v. State, 981 A.2d 34, 43 (Md.
Ct. Spec. App. 2009). Rather, “a touching for the purpose of
‘abuse’ [under § 3-307] refers to a wrongful touching, a
touching of another person’s intimate area for a purpose that is
harmful, injurious or offensive.” Id. The Maryland Court of
Appeals has further recognized that “the buttocks are an
intimate area within the meaning of [§] 3–301[],” finding
specifically that “[t]he touching of the buttocks is therefore
proscribed by [§] 3–307(a)(3).” Bible v. State, 982 A.2d 348,
358 (Md. 2009). Hence, a conviction could be sustained under
§ 3-307(a)(3) based on an adult’s intentional touching of a
minor’s buttocks for a “harmful, injurious or offensive”--but
27
not sexually gratifying--purpose. See Alfaro, 835 F.3d at 473
n.1 (recognizing this interpretation of “sexual contact” as used
in § 3-307).
Under the federal generic definition of “sexual abuse of a
minor,” acting for the purpose of sexual gratification is an
element of the offense. Indeed, in Alfaro, we emphasized that
“sexual abuse of a minor” as defined in Diaz-Ibarra “is a
‘broad’ phrase ‘capturing physical or nonphysical conduct,’ and
it is the sexual-gratification element that polices the line
between lawful and unlawful conduct.” Alfaro, 835 F.3d at 476
(quoting United States v. Perez–Perez, 737 F.3d 950, 953 (4th
Cir. 2013)) (citation omitted). We went on, “[T]he intent to
gratify sexual urges is central to the offense of sexual abuse
of a minor . . . and therefore is part of the ordinary meaning
of the phrase ‘sexual abuse.’” Id. at 476-77.
In Maryland, a perpetrator need not act for the purpose of
sexual gratification in order to be convicted under § 3-
307(a)(3). Acting for the purpose of abuse is enough. And
Maryland’s appellate courts have interpreted “abuse” to include
much more conduct than what the INA criminalizes. Because we
are constrained by Maryland’s interpretation of the scope of its
own laws, see Castillo, 776 F.3d at 268, we find that § 3-
307(a)(3) is broader than the federal generic offense of “sexual
abuse of a minor.” Accordingly, we hold that a conviction for
28
“Third Degree Sex Offense” under Maryland Criminal Law Article
§ 3-307(a)(3) does not constitute the aggravated felony of
“sexual abuse of a minor” under § 1101(a)(43)(A) of the INA.
III.
The BIA erred as a matter of law in finding that Larios-
Reyes’s conviction under Maryland Criminal Law Article § 3-307
constitutes the aggravated felony of “sexual abuse of a minor”
under the INA. We therefore grant Larios-Reyes’s petition for
review, vacate the order of removal, and order his immediate
release from DHS Custody.
PETITION FOR REVIEW GRANTED
AND ORDER OF REMOVAL VACATED
29