Singh v. Ashcroft, 03-1532.

Decision Date17 September 2004
Docket NumberNo. 03-1532.,03-1532.
PartiesKhaimraj SINGH Petitioner v. John ASHCROFT, Attorney General of the United States of America.
CourtU.S. Court of Appeals — Third Circuit

James J. Orlow, David Kaplan (Argued), Orlow & Orlow, Philadelphia, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, Anthony P. Nicastro (Argued), Trial Attorney, Christopher C. Fuller, Lyle D. Jentzer, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: AMBRO, BECKER and GREENBERG, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Khaimraj Singh, a Guyanan national, petitions for review of a final order of removal grounded upon the determination that he is an aggravated felon on account of his conviction for touching the breast of his cousin, who was under sixteen years of age. The offense of conviction was 11 Del. C. § 767, "Unlawful sexual contact in the third degree," which provides:

A person is guilty of unlawful sexual contact in the third degree when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim's consent.

The question presented on this petition for review-whether Singh has been convicted of the aggravated felony of "sexual abuse of a minor," 8 U.S.C. § 1101(a)(43)(A)-turns on whether we must apply the so-called "formal categorical approach" announced in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, an adjudicator "must look only to the statutory definitions of the prior offenses," and may not "consider other evidence concerning the defendant's prior crimes," including, "the particular facts underlying [a] conviction[ ]." Id. at 600, 110 S.Ct. 2143. If we apply the formal categorical approach, Singh has not been convicted of the aggravated felony of sexual abuse of a minor because § 767 does not contain an element specifying the age of the victim. If we do not apply the formal categorical approach, Singh has been convicted of the aggravated felony of sexual abuse of a minor because the victim of his sex offense was, indeed, a minor.

Our jurisprudence in the aggravated felony area-twelve cases in all-is not a seamless web. In order to resolve the appeal we have found it necessary to analyze and synthesize this body of case law, and we do so at length, see infra Part III.B. As will appear, a pattern emerges, causing us to conclude that, while the formal categorical approach of Taylor presumptively applies in assessing whether an alien has been convicted of an aggravated felony, in some cases the language of the particular subsection of 8 U.S.C. § 1101(a)(43) at issue will invite inquiry into the underlying facts of the case, and in some cases the disjunctive phrasing of the statute of conviction will similarly invite inquiry into the specifics of the conviction. But in this case, neither 8 U.S.C. § 1101(a)(43)(A) nor 11 Del. C. § 767 invite inquiry into the facts underlying Singh's conviction. Therefore, because Taylor' s formal categorical approach applies to Singh's case, we will grant the petition for review.

I. Factual Background and Proceedings Before the Immigration Judge and Board of Immigration Appeals

Singh is a native and citizen of Guyana. He was admitted to the United States in June 1988 as an immigrant. About ten years later, he touched the breast of his cousin, who was under the age of sixteen. For this, the State of Delaware charged him under 11 Del. C. § 768, "Unlawful sexual contact in the second degree." Apparently as part of a plea agreement with the state prosecutor, Singh pled guilty to the lesser included offense of 11 Del. C. § 767, "Unlawful sexual contact in the third degree." On May 19, 1998, the Delaware Superior Court imposed a one-year suspended sentence.

This conviction, the government asserts, renders Singh an aggravated felon under 8 U.S.C. § 1101(a)(43)(A), which provides that "sexual abuse of a minor" is an aggravated felony.1 Under 8 U.S.C § 1227(a)(2)(A)(iii), an alien convicted of an aggravated felony is removable. The Immigration Judge (IJ) agreed with the government's position, noting that "the sentencing order of the [Delaware] Court reflects clearly, under special conditions of probation, `note: victim is under 16 years of age.'" Citing 18 U.S.C. § 3509(2) (which defines the age of majority as 18), the IJ explained that "the victim was under 16 years of age and, consequently, would be classified as a minor." The IJ then looked to 18 U.S.C. § 3509(8) for the definition of "sexual abuse," which includes "sexually explicit conduct":

The term sexually explicit conduct includes touching of one's breast under [18 U.S.C. § 3509(9)(A)]. Consequently, the Court finds that the respondent has engaged in sexually explicit conduct of a child. Likewise, the Court would find that the respondent's conviction, notwithstanding the fact that the age of the victim is not specifically designated in the statute, has indeed ... engaged in sexual abuse of a minor as defined in Title 18.

The Board of Immigration Appeals (BIA) affirmed the IJ's decision without opinion. See 8 C.F.R. § 1003.1(e)(4).2 Under 8 U.S.C. § 1252(a)(2)(C) and our decision in Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir.2001), we have jurisdiction to consider our jurisdiction over this timely petition for review of a final decision of the BIA.

II. Standard of Review

This case turns on a question of statutory interpretation-specifically, the meaning and application of the aggravated felony of "sexual abuse of a minor." As we noted in Patel v. Ashcroft, 294 F.3d 465, 467 (3d Cir.2002), "there is some confusion surrounding the proper standard of review in cases such as this." Patel, which was an aggravated felony case, discusses at length the role of Chevron deference in cases interpreting the Immigration and Nationality Act (INA) generally, and the aggravated felony statute of 8 U.S.C. § 1101(a)(43) in particular. In our most recent aggravated felony case, we described the scope of our Chevron deference thus:

"The first step in interpreting a statute is to determine `whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.'" [Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir.2002)] (quoting Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir.2001)). If the statutory meaning is clear, our inquiry is at an end. Id. If the statutory meaning is not clear, we must try to discern Congress' intent using the ordinary tools of statutory construction. See INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). "If, by employing traditional tools of statutory construction, we determine that Congress' intent is clear, that is the end of the matter." Valansi, 278 F.3d at 208 (quoting Bell v. Reno, 218 F.3d 86, 90 (2d Cir.2000)). If we are unable to discern Congress' intent using the normal tools of statutory construction, we will generally give deference to the Board's interpretation, so long as it is reasonable. Id.

Lee v. Ashcroft, 368 F.3d 218, 222 (3d Cir.2004).

Canvassing the dozen aggravated felony cases decided by this Court, one indisputable and surprising pattern emerges: We have never affirmatively deferred to an interpretation by the BIA (or an IJ) of 8 U.S.C. § 1101(a)(43), i.e., of whether the crime at issue constitutes an aggravated felony. Many times we have not even discussed Chevron deference to the BIA, irrespective of whether we ultimately agreed or disagreed with the Board. See Munroe v. Ashcroft, 353 F.3d 225 (3d Cir.2003); Wilson v. Ashcroft, 350 F.3d 377 (3d Cir.2003); Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir.2002); United States v. Graham, 169 F.3d 787 (3d Cir.1999). We also have suggested that we conduct de novo review because the question goes to our jurisdiction. See Nugent v. Ashcroft, 367 F.3d 162, 165 (3d Cir.2004); Valansi, 278 F.3d at 207-08 (citing cases). Twice we have declined to reach the question of deference because we concluded that our result would be the same on deferential review as it would on plenary review. See Patel, 294 F.3d at 468; Drakes v. Zimski, 240 F.3d 246, 251 (3d Cir.2001). In two cases, we acknowledged that we must defer to the BIA if the statute's meaning is ambiguous, but both times we held that the BIA's interpretation conflicted with the statute's plain meaning. See Lee, 368 F.3d at 224-25; Valansi, 278 F.3d at 208. In yet another case we affirmatively held that the BIA's interpretation of 18 U.S.C. § 16, which is incorporated by reference in the aggravated felony statute, 8 U.S.C. § 1101(a)(43)(F), was not subject to the general principles of Chevron, but that, even if it was, the specific interpretation at issue was unreasonable and therefore not entitled to deference. See Francis v. Reno, 269 F.3d 162, 168 & n. 8 (3d Cir.2001). Finally, two decisions appear to be more deferential to the BIA. In Gerbier v. Holmes, 280 F.3d 297, 310 (3d Cir.2002), we found the BIA's interpretation "persuasive" (hardly a strong general endorsement), while in Steele v. Blackman, 236 F.3d 130, 133 (3d Cir.2001), we stated that "if a statute administered by the INS is ambiguous, and the BIA has provided a reasonable interpretation of its language, we must simply ask whether the BIA's construction is a permissible one." Even in Steele, however, we looked more closely into the BIA's interpretation, finding it "troublesome," but we "assume [d] its validity" because even the BIA's own interpretation of the statute did not support its disposition of the case. 236 F.3d at 136 & n. 5.

Why then have we...

To continue reading

Request your trial
105 cases
  • United States v. Louisiana, Case No. 3:11-cv-00470-JWD-RLB
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • July 26, 2016
    ...text is plain and unambiguous,62 apparent purpose need not be considered. See supra Parts IV.D, V.B.1; see also, e.g., Singh v. Ashcroft, 383 F.3d 144, 150 (3d Cir. 2004). In spite of this axiom, statutes should still normally "be interpreted in harmony with their dominant purpose." Dupuy v......
  • Martinez v. Attorney Gen. of the U.S.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 21, 2020
    ...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 sexua......
  • United States v. Pavulak
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 21, 2012
    ...not necessarily “involve conduct that would be a Federal sex offense” under the formal categorical approach. See, e.g., Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir.2004) (reaching the same conclusion in comparing the Delaware crime of unlawful sexual contact in the third degree with the fe......
  • Cardiosom, L.L.C. v. United States, 08-533C
    • United States
    • Court of Federal Claims
    • April 30, 2014
    ...implicate agency expertise in a meaningful way."' Ibarra v. Holder, 736 F.3d 903, 918 n.19 (10th Cir. 2013) (quoting Singh v. Ashcroft, 383 F.3d 144, 151 (3d Cir. 2004). The judicial review withholding provision at issue in the instant motion states that "[n]othing in subclause (I) shall be......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT