Cadapan v. Attorney Gen. of the United States

• Decision Date: 03 March 2014
• Docket Number: No. 13–1944.,13–1944.
• Court: U.S. Court of Appeals — Third Circuit
• Parties: George Acupanda CADAPAN, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

749 F.3d 157

George Acupanda CADAPAN, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 13–1944.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit

LAR 34.1(a) March 3, 2014.

Opinion filed: March 20, 2014.

Publication Granted May 9, 2014.

Valerie A. Burch, Esq., The Shagin Law Group, Harrisburg, PA, for Petitioner.

Eric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., Christina J. Martin, Esq., Carmel A. Morgan, Esq., United States Department of Justice, Washington, DC, for Respondent.

Before: RENDELL, SMITH and HARDIMAN, Circuit Judges.

OPINION

RENDELL, Circuit Judge:

Petitioner George Acupanda Cadapan, a native and citizen of the Philippines and a lawful permanent resident of the United States, petitions for review of the decision by the Board of Immigration Appeals (“BIA”) finding him removable for having been convicted of an “aggravated felony” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(A). He argues that his conviction under the Pennsylvania indecent assault statute, 18 Pa. Cons.Stat. § 3126(a)(7), does not qualify as an aggravated felony under the Immigration and Nationality Act (“INA”). For the reasons that follow, we disagree. Cadapan also contends that he was never admitted to the United States and that therefore he is not removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which applies to “an alien who is convicted of an aggravated felony at any time after admission.” Cadapan, however, never raised this argument before the BIA. Because he failed to exhaust his administrative remedies, we lack jurisdiction over this claim. We will deny Cadapan's petition.

I.

On August 31, 2011, following a jury trial in the Court of Common Pleas of Cumberland County, Pennsylvania, Cadapan was convicted of three offenses: (1) indecent assault with a person less than 13 years of age, in violation of 18 Pa. Cons.Stat. § 3126(a)(7); (2) indecent assault without consent, in violation of 18 Pa. Cons.Stat. § 3126(a)(1); and (3) corruption of minors, in violation of 18 Pa. Cons.Stat. § 6301(a)(1). On November 29, 2011, Cadapan was sentenced to a term of imprisonment not less than 6 months nor more than 23 months; a term of imprisonment of not less than 3 months nor more than 23 months, to run concurrently; and supervised probation for 36 months, respectively. On April 11, 2012, Cadapan was granted parole by the Court of Common Pleas. He was transferred to the custody of the Department of Homeland Security (“DHS”) the next day.

DHS charged Cadapan with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who, after admission, was convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(A)—specifically, sexual abuse of a minor. DHS also charged Cadapan with removability under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien convicted of a crime of child abuse based on his conviction for the corruption of minors under Pennsylvania law. Cadapan conceded removability on the latter charge but denied the aggravated felony charge.¹ He argued that the Pennsylvania statute for indecent assault encompassed conduct that could not be considered sexual abuse of a minor under the federal statute. In an oral decision, the Immigration Judge (“IJ”) rejected this argument and concluded that Cadapan was removable on both grounds. The BIA subsequently dismissed Cadapan's appeal.

II.

We have jurisdiction over only one of the two claims Cadapan raises on appeal because the other is unexhausted.²See8 U.S.C. § 1252(d)(1) (stating that a court may review a final order of removal only if “the alien has exhausted all administrative remedies”). For the first time, Cadapan argues that the BIA erred in ordering him removed as an alien who had been admitted to the United States, see8 U.S.C. § 1227(a)(2)(A)(iii), because he was never admitted to the United States.³ He concedes that he never raised this particular issue before the IJ or BIA. We have held that “[t]he exhaustion requirement attaches to each particular issue raised by the petitioner.” Castro v. Att'y Gen., 671 F.3d 356, 365 (3d Cir.2012). Therefore, Cadapan's argument regarding whether or not he was ever “admitted” to the United States is unexhausted and we lack jurisdiction to consider it.

Cadapan's second argument, however, is properly before this Court. The INA defines an aggravated felony as, inter alia, a conviction for “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Cadapan argues that conduct that meets the federal definition of sexual abuse of a minor is not necessary for a conviction under the Pennsylvania statute for indecent assault. He therefore argues that he did not commit an aggravated felony. For the following reasons we disagree.

Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att'y Gen., 400 F.3d 157, 162 (3d Cir.2005). We review the decision of the IJ, however, to the extent that the BIA deferred to or adopted the IJ's reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Our review of legal questions is de novo, subject to the principles of deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Catwell v. Att'y Gen., 623 F.3d 199, 205 (3d Cir.2010).

We apply the categorical approach in determining whether Cadapan's conviction constitutes sexual abuse of a minor under the INA. See Restrepo v. Att'y Gen., 617 F.3d 787, 791 (3d Cir.2010). We proceed in two steps: “first, we must ascertain the definition for sexual abuse of a minor, and second we must compare this ‘federal’ definition to the state statutory offense in question.” Id. If conduct meeting the federal definition of sexual abuse of a minor is necessary for a conviction under 18 Pa. Cons.Stat. § 3126(a)(7), then Cadapan's conviction under the statute “qualifies as a conviction for sexual abuse of a minor and, by extension, an aggravated felony for which he is removable.” Id.

The BIA and IJ properly turned to 18 U.S.C. § 3509(a)(8) as “a guide in identifying the types of crimes we would consider to be sexual abuse of minor” under 8 U.S.C. § 1101(a)(43)(A). Id. at 796 n. 10 (quoting Matter of Rodriguez–Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999)). In Restrepo, we determined that Chevron deference was appropriate with respect to the BIA's definition of sexual abuse of a minor. 617 F.3d at 796. We therefore adopted the BIA's approach in Matter of Rodriguez–Rodriguez, which was to use § 3509(a)(8) as a reference point for what should be considered sexual abuse of a minor. Id. We noted that such an approach was reasonable because the definition set forth in § 3509(a)(8) was consistent with “the commonly accepted definition of ‘sexual abuse’ ” in Black's Law Dictionary. Id. We also noted that Congress had intended to incorporate a broad range of state crimes under the umbrella of “sexual abuse of a minor.” Id. at 798.

Section 3509(a)(8) defines 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.” 18 U.S.C. § 3509(a)(8). Pennsylvania's statute for indecent assault provides, in relevant part, that:

A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and ... (7) the complainant is less than 13 years of age.

18 Pa. Cons.Stat. § 3126(a)(7). The BIA held that conduct covered by the Pennsylvania statute categorically qualifies as “molestation” or “sexual exploitation” of a child within the meaning of 18 U.S.C. § 3509(a)(8). ( See App. 4.)

Cadapan mischaracterizes the BIA's decision, stating that the agency “incorrectly concluded that one type of sexual abuse—‘molestation’—necessarily encompasses all conduct prohibited by Subsection (a)(7) of Pennsylvania's indecent assault statute.” Appellant's Br. 16. He neglects the BIA's finding that the conduct also could be considered another “form of sexual exploitation of children.” 18 U.S.C. § 3509(a)(8). Instead, Cadapan focuses on the decision of the IJ, which stated that under a modified categorical approach, all conduct falling under the “indecent contact” portion of the Pennsylvania statute (the portion of the statute under which Cadapan was convicted) qualifies as “molestation.” ⁴ Cadapan argues that the IJ improperly employed the Black's Law Dictionary definition of molestation and that the IJ should have employed the definition provided in Rule 414 of the Federal Rules of Evidence. He says that the definition of molestation provided in Rule 414 is narrower and does not include all conduct which would be considered “indecent contact” under the Pennsylvania statute. In particular, Cadapan notes that “indecent contact” may include touching of “the backs of the legs ... shoulders, neck, and back.” Commonwealth v. Fisher, 47 A.3d 155, 158 (Pa.Super.Ct.2012). In contrast, under Rule 414, there must be touching of “the genitalia, anus, groin, breast, inner thigh, or buttocks.” 18 U.S.C. § 2246(3).⁵ Consequently, he argues that Cadapan's conviction does not constitute sexual abuse of a minor or, by extension, an aggravated felony.

As an initial matter, we agree with the BIA that conduct covered by the indecent assault statute categorically constitutes “other form[s] of sexual exploitation” of a child.⁶18 U.S.C. § 3509(a)(8). On this issue alone, Cadapan's petition could be dismissed. We also agree, however, that molestation includes all conduct covered by “indecent contact.” Cadapan does not...