Larios-Reyes v. Lynch

• Decision Date: 06 December 2016
• Docket Number: No. 15-2170,15-2170
• Citation: 843 F.3d 146
• Parties: Rafael Antonio Larios-Reyes, a/k/a Rafael A. Reyes, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

843 F.3d 146

Rafael Antonio Larios-Reyes, a/k/a Rafael A. Reyes, Petitioner,

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

No. 15-2170

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2016

Decided: December 6, 2016

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.

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.

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 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 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, strangulation, 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 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 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 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, –––U.S. ––––, 137 S.Ct. 368, 196 L.Ed.2d 283, 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 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). We answer...