Cabeda v. Attorney Gen. of the U.S.

• Decision Date: 18 August 2020
• Docket Number: No. 19-1835,19-1835
• Citation: 971 F.3d 165
• Parties: Nelida Beatriz CABEDA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

971 F.3d 165

Nelida Beatriz CABEDA, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America

No. 19-1835

United States Court of Appeals, Third Circuit.

Argued January 14, 2020

Filed: August 18, 2020

OPINION OF THE COURT

JORDAN, Circuit Judge.

We deal today with another appearance of what is known as the "categorical approach" to determining whether and how a conviction under state law will have consequences for the convicted criminal under federal law. We must apply it now in an immigration case, but, in whatever context it surfaces, it's a fair bet that this formalistic framework may result in some counterintuitive and hard-to-justify outcome. And so it does here.

Argentine citizen Nelida Beatriz Cabeda, a woman in her thirties, was convicted in Pennsylvania state court of having involuntary deviate sexual intercourse with a teenage boy. That conviction ultimately led immigration authorities to find her removable for having committed what they concluded is a state-law offense qualifying as an "aggravated felony," 8 U.S.C. § 1227(a)(2)(A)(iii), specifically the "sexual abuse of a minor," id. § 1101(a)(43)(A). Cabeda has petitioned for review of that decision, arguing that, notwithstanding her actual, admitted sexual abuse of a minor, she cannot be removed on that basis. That is so, she says, because the Pennsylvania statute under which she was convicted could conceivably be violated by conduct that falls short of satisfying all the elements of the federally defined crime of sexual abuse of a minor.

Regrettably, she is right. The categorical approach mandates our accedence to Cabeda's demand that we ignore what she actually did and focus instead on what someone else, in a hypothetical world, could have done. That's the analytical box the categorical approach puts us in. Thus, even though it is indisputable on this record – and, in fact, no one does dispute – that Cabeda repeatedly had sex with a minor, when we assess her conviction alongside the pertinent federal statutes, the categorical approach blinds us to the facts and compels us to hold that the crime of which she was convicted does not amount to the aggravated felony of "sexual abuse of a minor." It is a surpassingly strange result but required by controlling law.

I. BACKGROUND

Cabeda is a citizen of Argentina who entered the United States in 1991 as a lawful permanent resident. Many years later, as alluded to above, she repeatedly engaged in vaginal and oral sex with a 15-year-old boy. She was 34 years old at the time and well aware of the boy's age. The encounters occurred over a period of several weeks and eventually came to light after the child's mother found text messages of a sexual nature on his phone and took her concerns to the police.

Once confronted, Cabeda confessed and pled guilty in Pennsylvania state court to one count of Involuntary Deviate Sexual Intercourse, in violation of 18 Pa. Cons. Stat. § 3123(a)(7). She was sentenced to four to eight years’ imprisonment. Her crime drew the attention of federal authorities, and, after serving the minimum required term of her sentence, Cabeda was released into the custody of Immigration and Customs Enforcement agents in July of 2018. She was served with a Notice to Appear charging her with removability on two grounds: first, that she had committed the aggravated felony of sexual abuse of a minor; and second, that she had committed the crime of child abuse. Cabeda appeared before an Immigration Judge ("IJ") and denied the charges.

After the hearing, she filed a motion to terminate the immigration proceedings, arguing that her Pennsylvania conviction did not qualify as either sexual abuse of a minor or child abuse. The IJ denied the motion. He concluded that Cabeda's statute of conviction categorically qualified as the aggravated felony of "sexual abuse of a minor" for purposes of federal immigration law. The analysis proceeded in two steps. First, the IJ looked to the definition of "sexual abuse" set forth in 18 U.S.C. § 3509(a)(8), an approach previously endorsed by the Board of Immigration Appeals ("BIA") in In re Rodriguez-Rodriguez , 22 I. & N. Dec. 991 (BIA 1999). The IJ next referred to the Supreme Court's observation in Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017), that, "in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16." Id. at 1568. Thus, since Cabeda's crime of conviction likewise requires that the victim be someone "less than 16 years of age," 18 Pa. Cons. Stat. § 3123(a)(7), the IJ ruled that Cabeda's crime qualified as sexual abuse of a minor. And, since sexual abuse of a minor is one variety of child abuse, the IJ also ruled that Cabeda had committed the crime of child abuse and was therefore removable on that ground too.

Cabeda appealed the IJ's decision to the BIA. She argued that the IJ had erred in two ways – first, by failing to apply what she claims is a new generic definition of sexual abuse of a minor prescribed by Esquivel-Quintana , and second, by concluding that her crime of conviction was a categorical match for the federal generic crime of sexual abuse of a minor.¹ The BIA agreed that the IJ had erred by failing to use Esquivel-Quintana ’s "new" definition of sexual abuse of a minor. But it concluded that the Pennsylvania statutes at play in the comparison of state and federal law are nevertheless a categorical match to that new definition, even though the BIA never specified what it believed that new definition to be. It accordingly upheld the IJ's ruling that Cabeda was removable as an aggravated felon.

Cabeda now petitions for review.

II. DISCUSSION²

The Immigration and Nationality Act designates certain crimes as "aggravated felon[ies.]" 8 U.S.C. § 1101(a)(43). If an alien commits such a crime while present in the United States, he or she becomes subject to removal from this country. Id . § 1227(a)(2)(A)(iii). The IJ and BIA both determined that Cabeda had committed the aggravated felony of sexual abuse of a minor – an understandable conclusion, given her admitted and repeated sexual abuse of a minor. But Cabeda's conduct is irrelevant; it's her conviction that counts. Supreme Court precedent tells us we are not to "look ... to the facts of the particular ... 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 , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (internal quotation marks and citation omitted).

In this case that means we are required to decide whether the pertinent Pennsylvania statutes defining and criminalizing involuntary deviate sexual intercourse are a categorical match to the federal generic crime of sexual abuse of a minor. The offenses proscribed by the state statutes "must be viewed in the abstract," to see whether they "share[ ] the nature of the federal offense that serves as a point of comparison." Id . Thus, "a state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense." Id . (internal quotation marks, alterations, omission, and citation omitted).

A. The Generic Federal Offense of Sexual Abuse of a Minor

The term "sexual abuse of a minor," 8 U.S.C. § 1101(a)(43)(A), is not defined in the Immigration and Nationality Act ("INA"). See Restrepo v. Att'y Gen., 617 F.3d 787, 792 (3d Cir. 2010) (noting that the INA "contains no definition of this phrase"). The INA does define other aggravated felonies by expressly cross-referencing various criminal statutes. See, e.g. , 8 U.S.C. § 1101(a)(43)(B) (stating that 21 U.S.C.§ 802 provides the definition of "illicit trafficking in a controlled substance"); id . § 1101(a)(43)(C) (stating that 18 U.S.C. § 921 provides the definition of "illicit trafficking in firearms or destructive devices"); id . § 1101(a)(43)(D) (making "laundering of monetary instruments[,]" at least past a monetary threshold and as defined in 18 U.S.C. § 1956, an aggravated felony). But no such cross-reference is provided to give precise content to the term "sexual abuse of a minor." That, of course, leads to some uncertainty in discerning the elements of that generic federal crime.

The BIA dealt with this uncertainty in its en banc decision in In re Rodriguez-Rodriguez , 22 I. & N. Dec. 991 (BIA 1999), by turning to 18 U.S.C. § 3509(a)(8), "a code section relating to the rights of child victims and witnesses in federal criminal cases." Restrepo , 617 F.3d at 796. Section 3509(a)(8) defines sexual abuse to include "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." 18 U.S.C. § 3509(a)(8). Later, applying the interpretive approach set forth in the Supreme Court's landmark decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we deferred to and adopted the BIA's analysis in our opinion in Restrepo v. Attorney General . We reasoned that the absence of a definition in the statute indicated that the meaning of "sexual abuse of a minor" is not clear and unambiguous. Restrepo , 617 F.3d at 795-97. We noted "that the BIA's definition of sexual abuse of a minor [in Rodriguez-Rodriguez ] is a reasonable one and that it [was therefore] appropriate to exercise Chevron deference." Id. at 796. Accordingly, in our Circuit and for purposes of applying the categorical approach in the context of an immigration case, an analysis of the generic crime of "sexual abuse of a minor"...