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

• Decision Date: 21 October 2020
• Docket Number: No. 19-1740,19-1740
• Parties: Luis Fernando GRIJALVA MARTINEZ, a/k/a Luis Grijalva, a/k/a Luis Martinez, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

978 F.3d 860

Luis Fernando GRIJALVA MARTINEZ, a/k/a Luis Grijalva, a/k/a Luis Martinez, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America, Respondent

No. 19-1740

United States Court of Appeals, Third Circuit.

Argued September 30, 2020

Filed: October 21, 2020

Susan G. Roy [ARGUED], Law Office of Susan G. Roy, Suite 101, 163 Cranbury Road, Princeton Junction, NJ 08550, Counsel for Petitioner

Dana M. Camilleri [ARGUED], United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Washington, DC 20044, Counsel for Respondent

Before: SHWARTZ, PHIPPS, and FISHER, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Luis Fernando Grijalva Martinez petitions for review of an order of the Board of Immigration Appeals ("BIA") (1) holding that Grijalva Martinez was removable as an alien convicted of both an aggravated felony and a crime involving moral turpitude ("CIMT"), and (2) finding him ineligible for withholding of removal and protection under the Convention Against Torture ("CAT"). Because Grijalva Martinez's state conviction for criminal sexual contact constitutes both a CIMT and an aggravated felony, and because he is not entitled to withholding of removal or CAT relief, we will deny the petition for review.

I

Grijalva Martinez is a citizen of Guatemala. In November 2013, his status was adjusted from asylee to lawful permanent resident. In May 2016, he was convicted in the New Jersey Superior Court of criminal sexual contact, in violation of N.J. Stat. Ann. § 2C:14-3(b), and of endangering the welfare of children, in violation of N.J. Stat. Ann. § 2C:24-4(a)(1). The Government subsequently commenced removal proceedings against Grijalva Martinez, alleging that he was removable as an alien convicted of a CIMT, an aggravated felony, and a crime of child abuse, child neglect, or child abandonment. In proceedings before an Immigration Judge ("IJ"), Grijalva Martinez denied that the conviction rendered him removable, and applied for withholding of removal and CAT protection. With respect to his applications for relief, Grijalva Martinez asserted that he feared violence at the hands of gang members, including his former stepfather.

The IJ sustained the removability charges, finding that Grijalva Martinez's conviction for criminal sexual contact was both a CIMT under 8 U.S.C. § 1227(a)(2)(A)(i) and an aggravated felony, namely, sexual abuse of a minor, under § 1227(a)(2)(A)(iii). The IJ also found that Grijalva Martinez was ineligible for withholding of removal because he was convicted for criminal sexual contact, a particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii) and that Grijalva Martinez was ineligible for CAT relief because he had not established that he would be subject to torture if removed to Guatemala.

Grijalva Martinez appealed to the BIA, which dismissed the appeal. The BIA held that Grijalva Martinez was removable because he had been convicted of both a CIMT and an aggravated felony.¹ The BIA also adopted the IJ's findings and conclusions denying Grijalva Martinez's requests for withholding of removal and CAT relief.

Grijalva Martinez petitions for review, arguing that the IJ and BIA (1) erred in concluding that criminal sexual contact is an aggravated felony, (2) erred in concluding that his conviction is for a particularly serious crime, and (3) failed to apply the proper legal framework to his CAT claim.

II²

Grijalva Martinez does not challenge the BIA's ruling that his conviction for criminal sexual contact constitutes a CIMT, a finding that provides a ground for removal.³ He does, however, dispute that the conviction constitutes an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).

The Immigration and Nationality Act ("INA") defines the term "aggravated felony" to include "sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A) ; see also Restrepo v. Att'y Gen., 617 F.3d 787, 791 (3d Cir. 2010). To determine whether Grijalva Martinez's conviction for criminal sexual contact under N.J. Stat. Ann. § 2C:14-3(b) constitutes sexual abuse of a minor, "we employ the ‘categorical approach’ of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)." Restrepo, 617 F.3d at 791 (citing Nijhawan v. Holder, 557 U.S. 29, 34, 37, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) ); see also Esquivel-Quintana v. Sessions, ––– U.S. ––––, 137 S. Ct. 1562, 1567-68, 198 L.Ed.2d 22 (2017). Here, "[t]he categorical approach requires a two step analysis: 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." Restrepo, 617 F.3d at 791 (citing Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir. 2004) ). The statutory offense is defined by its elements. "If [the type of] conduct that meets the federal definition of sexual abuse of a minor" would meet the elements for a conviction for criminal sexual contact under New Jersey law, then Grijalva Martinez's conviction "qualifies as a conviction for sexual abuse of a minor and, by extension, an aggravated felony for which [Grijalva Martinez] is removable." Id.

A

Two of our precedents inform the first step of this analysis. First, in Restrepo, we deferred to the BIA's definition of the term "sexual abuse of a minor" in the INA, holding that the term is "most appropriately defined by" 18 U.S.C. § 3509(a)(8), which defines "sexual abuse" as including "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." Restrepo, 617 F.3d at 796 (quoting 18 U.S.C. § 3509(a)(8) ). We noted that the BIA viewed § 3509(a)(8) not "as a restrictive or limiting definition," but rather "as a guide in identifying the types of crimes we would consider to be sexual abuse of a minor." Id. at 796 n.10 (quoting Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (B.I.A. 1999) ).

Second, in Cabeda v. Attorney General, 971 F.3d 165 (3d Cir. 2020), we reaffirmed that § 3509(a)(8) is the touchstone of the federal generic definition of "sexual abuse of a minor" under the INA, but we also noted that § 3509(a)(8) "does not specify a mens rea requirement." Id. at 173. Because we could not "defer to a nullity," we "look[ed] elsewhere to discern the mens rea required to establish the generic federal crime." Id. Specifically, we looked to "the structure of the INA, the inherent egregious nature of an aggravated felony, and," perhaps most importantly, a "closely-related statute[ ]," 18 U.S.C. § 2243. Id. (quoting Acevedo v. Barr, 943 F.3d 619, 624 (2d Cir. 2019) ).

Section 2243, a federal criminal statute entitled "sexual abuse of a minor or ward," requires "knowing conduct as to the sexual act in question" but "establishes that no knowledge at all is required with respect to the victim's age." Id. (citing 18 U.S.C. § 2243 ); see also Acevedo, 943 F.3d at 624 ("[C]ourts have uniformly interpreted [ Section 2243 and another similar federal statute] as disclaiming mens rea requirements with respect to the victim's age." (second alteration in original) (emphasis omitted) (quoting United States v. Robinson, 702 F.3d 22, 33 (2d Cir. 2012) )). In Cabeda, we imported § 2243 ’s scienter standard for the actus reus, the sexual act, into the federal generic offense of sexual abuse of a minor, holding that the federal generic offense requires knowing conduct as to the sexual act, 971 F.3d at 173-74. We had no need, however, to address whether § 2243 ’s proviso that the Government need not prove that the perpetrator knew the victim's age applies to the federal generic offense. Id.

Today, we conclude that the federal generic offense includes both components of § 2243. Section 2243 criminalizes sexual contact with minors. Thus, it complements § 3509 ’s protection of minors who were victims of a sexual contact. Like similar state statutes concerning sexual contact with minors, see, e.g., infra n.9, § 2243 does not require proof that the defendant knew the victim's age. See 18 U.S.C. § 2243(d)(1). Moreover, to impose a requirement that the perpetrator know the victim's age would exclude from the federal generic offense a swath of sexual conduct unlawful under many state laws. See Esquivel-Quintana, 137 S. Ct. at 1571 (holding that courts may "look to state criminal codes for additional evidence about the generic meaning of sexual abuse of a minor"); Acevedo, 943 F.3d at 626 (same); Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U. L. Rev. 313, 343-44 (2003) (surveying jurisdictions and noting that a majority of states, "substitute[ ] strict liability for a requirement of mens rea" in their statutory rape laws).

Thus, we join our sister circuits and hold that the federal generic offense of sexual abuse of a minor under the INA contains no scienter requirement as to the victim's age.⁴ See, e.g., Bedolla-Zarate v. Sessions, 892 F.3d 1137, 1141 (10th Cir. 2018) ; Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014).

As a result, the federal generic offense of sexual abuse of a minor requires proof that the defendant (1) knowingly engaged in an act that constitutes criminal sexual contact; and (2) engaged in such an act with a person who is of the age the statute covers, without the need for the government to prove that the defendant knew or reasonably should have known the person's age.

B

Having identified the elements of the federal generic definition for sexual abuse of a minor, we next examine the elements of criminal sexual contact under N.J. Stat. Ann. § 2C:14-3(b) to determine whether the offenses categorically match. Section 2C:14-3(b) provides that a defendant is guilty "if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c. (1) through (5)."...