Stubbs v. Attorney General of U.S., 04-4316.

• Decision Date: 29 June 2006
• Docket Number: No. 04-4316.,04-4316.
• Citation: 452 F.3d 251
• Parties: Jerome STUBBS, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 251

452 F.3d 251

Jerome STUBBS, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 04-4316.

United States Court of Appeals, Third Circuit.

Argued November 16, 2005.

Filed June 29, 2006.

Thomas E. Moseley, Esquire (Argued), Newark, NJ, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, Janice K. Redfern, Esquire, Daniel Goldman, Esquire (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before BARRY, and AMBRO, Circuit Judges, POLLAK,^* District Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Jerome Stubbs, a Jamaican national, petitions for review of a final order of removal based on the determination of the Board of Immigration Appeals ("BIA" or "Board") that he committed an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (stating that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable") and 8 U.S.C. § 1101(a)(43)(A) (stating that "`aggravated felony' means. . . sexual abuse of a minor"). For the reasons set out below, we conclude that Stubbs' conviction for "endangering welfare of children" under N.J. Stat. Ann. § 2C:24-4(a) is not "sexual abuse of a minor." We therefore grant the petition for review, vacate the order of removal, and remand to the BIA for further proceedings consistent with this opinion.

I. Factual Background

Jerome Stubbs was born in Jamaica in 1980 and was admitted to the United States as a lawful permanent resident in 1998. In 2002, Stubbs pled guilty to one count of third-degree "endangering welfare of children" in violation of N.J. Stat. Ann. § 2C:24-4(a) and was sentenced to two years probation.¹

The offense of conviction provides that

[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in [the New Jersey protective-welfare statutes,] is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

N.J. Stat. Ann. § 2C:24-4(a).²

Two years after his conviction, United States Immigration and Customs Enforcement served Stubbs with a notice to appear, charging him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(A) for having been convicted of the aggravated felony of sexual abuse of a minor.³ Stubbs appeared before an Immigration Judge ("IJ") and admitted the factual allegations in the notice to appear, but denied removability. On June 16, 2004, the IJ found Stubbs removable as an aggravated felon. The IJ considered the statute of conviction and the charging instrument and determined that Stubbs' offense came within the definition of "sexual abuse of a minor" articulated by the BIA in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 1999 WL 731793 (B.I.A.1999), thus making the offense an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).

Stubbs appealed the IJ's order of removal to the BIA and it affirmed. It considered Stubbs' record of conviction, specifically the charging instrument, and held that "[i]nasmuch as [Stubbs] engaged in sexual conduct with a child under the age of 18, [his] criminal activity clearly falls within [the] definition of sexual abuse of a minor provided by the Board in [Rodriguez-Rodriguez]." Stubbs now petitions for review to us.⁴

II. Discussion

Under the Immigration and Nationality Act ("INA"), "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). "The term `aggravated felony' means," inter alia, "murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). Stubbs argues that (1) the BIA erred by considering the charging instrument and thus failing to limit its analysis to the statute of conviction in accordance with the "formal categorical approach," and (2) his offense under N.J. Stat. Ann. § 2C:24-4(a) does not constitute "sexual abuse of a minor" for purposes of 8 U.S.C. § 1101(a)(43)(A). We conclude that, although the BIA's departure from the categorical approach was appropriate here, it erroneously read the statute of conviction as satisfying its own interpretation of "sexual abuse of a minor."

A. The Categorical Approach

The parties dispute whether the BIA properly considered the charging instrument or whether its analysis should have been limited to the statute of conviction in accordance with the "categorical approach" announced in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This approach prohibits consideration of evidence other than the statutory definition of the offense, thus precluding review of the particular facts underlying a conviction. Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir.2004). As a practical matter, application of the "categorical approach" would exclude consideration of the charging instrument in the record or any other evidence about the specifics of Stubbs' conduct.

The "categorical approach" is presumptively applied in assessing whether an alien has been convicted of an aggravated felony. Francis v. Reno, 269 F.3d 162, 171 (3d Cir.2001). This approach does not, however, apply when either the terms of "the federal statute enumerating categories of crimes ... (the `enumerating statute'), [or] the criminal statute of conviction. . . (the `statute of conviction')" invite further inquiry into the facts. Singh, 383 F.3d at 161. In either context, the IJ, the BIA, and our Court are permitted to abandon the constraints of the "categorical approach" and consider the charging instrument and the plea colloquy for additional information regarding the offense. See e.g., Singh, 383 F.3d at 163 (considering "the charging instrument" or "a formal guilty plea"); Valansi v. Ashcroft, 278 F.3d 203, 214 (3d Cir.2002) (considering offense as charged in the indictment and statements during the plea colloquy).⁵ Our Court has held that the "enumerating statute" in this case, 8 U.S.C. § 1101(a)(43)(A), does not invite further inquiry and thus does not demand the abandonment of the "categorical approach." Singh, 383 F.3d at 164 (holding that "sexual abuse of a minor" in the INA does not invite further inquiry). The remaining question is whether the New Jersey statute pursuant to which Stubbs was convicted (the "statute of conviction") invites further inquiry into the facts. We hold that it does.

The categorical approach is inappropriate when the "disjunctive phrasing of the statute of conviction . . . invite[s] inquiry into the specifics of the conviction." Id. at 148. Specifically, "where some variations of the crime of conviction meet the aggravated-felony requisites and others do not, we have . . . allowed further inquiry to see which variation was actually committed." Id. at 162; see also Valansi, 278 F.3d at 214 (underlying facts should be considered when "some, but not all, of the convictions under [the statute of conviction] qualify as [an] offense under [the enumerating statute]"). Stubbs argues that his "statute of conviction" (N.J.Stat. Ann. § 2C:24-4(a)) is not phrased "in the disjunctive in any relevant way," and thus the BIA erred in moving beyond the statute of conviction and examining the charging instrument in the record. See Singh, 383 F.3d at 163. We disagree.

To repeat, N.J. Stat. Ann. § 2C:24-4(a) provides for conviction of a person who either (a) "engages in sexual conduct which would impair or debauch the morals of the child" or (b) "causes the child harm that would make the child an abused or neglected child as defined in [state protective-welfare statutes]." A conviction could lie under this statute for "willfully failing to provide proper and sufficient food" for a child pursuant to N.J. Stat. Ann. § 9:6-1, one of the enumerated protective-welfare statutes. This offense would hardly constitute "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A). The BIA was therefore correct in concluding further inquiry was justified, as it was "unclear from the face of the statute in this case, which includes conduct which both may and may not involve sexual abuse of a minor, exactly which variation of the statute the respondent was convicted of violating." In re Stubbs, No. A-46634722, 2004 WL 2943557 (B.I.A. Nov. 9, 2004). Accordingly, the BIA's examination of the charging instrument was appropriate, and it correctly concluded that Stubbs was convicted under the prong of N.J. Stat. Ann. § 2C:24-4(a) that prohibits "engag[ing] in sexual conduct which would impair or debauch the morals of the child."

B. Sexual Abuse of a Minor

Having determined that the BIA properly considered the charging instrument in addition to the statute of conviction, we turn to whether "engag[ing] in sexual conduct which would impair or debauch the morals of the child" pursuant to N.J. Stat. Ann. § 2C:24-4(a) constitutes "sexual abuse of a minor" under the INA. We conclude that the answer is no.

1. The criminal record does not support "sexual abuse of a minor."

According to the Board, the charging instrument indicated Stubbs had "engaged in sexual conduct . . . with a child under the age of 16" (emphasis added). The Board concluded that, "[i]nasmuch as the respondent engaged in sexual conduct with a child," his conduct satisfied the definition of "sexual abuse of a minor" (emphasis added). The charging instrument actually states, however, in language tracking the statute of conviction, only that Stubbs was charged with "engag[ing] in sexual conduct which would impair or debauch the morals of a child under the age of sixteen, to wit: [child's initials], date of birth [date omitted]." Neither ...