Amos v. Lynch

• Decision Date: 10 June 2015
• Docket Number: 14–1633.,Nos. 13–2005,s. 13–2005
• Parties: Richard Jesus AMOS, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent. Richard Jesus Amos, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

790 F.3d 512

Richard Jesus AMOS, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

Richard Jesus Amos, Petitioner

v.Loretta E. Lynch, Attorney General, Respondent.

Nos. 13–2005

14–1633.

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2015.

Decided: June 10, 2015.

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.

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Opinion

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.

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 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 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 “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 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, 210 Md.App. 488, 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 exploitation when it is reasonably possible to act.” See Degren v. State, 352 Md. 400, 722 A.2d 887, 899 (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, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) ).

II.

A.

The central issue presented in this appeal is whether the BIA erred in concluding that Amos's conviction under the former 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 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...