Restrepo v. Attorney General of US

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-4741

MARIO RESTREPO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of a Final Order of

the Board of Immigration Appeals

(Agency No. A041-383-831)

Argued January 26, 2010

Before: FUENTES and FISHER, Circuit Judges,

and CONNER,* District Judge.

*

Honorable Christopher C. Conner, United States District

Judge for the Middle District of Pennsylvania, sitting by

designation.

(Filed: August 16, 2010)

Thomas E. Moseley, Esq. [ARGUED]

One Gateway Center

Suite 2600

Newark, NJ 07102

Counsel for Petitioner

Liza S. Murcia, Esq. [ARGUED]

Ari Nazarov, Esq.

Jennifer P. Williams, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

OPINION OF THE COURT

CONNER, District Judge.

Petitioner Mario Restrepo (“Restrepo”), a native and

citizen of Colombia and a lawful permanent resident of the

United States, filed the instant petition to prevent his removal

from this country based on the determination of the Board of

2

Immigration Appeals (“BIA”) that he committed an “aggravated

felony” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C.

§ 1101(a)(43)(A). In 1994, Restrepo was convicted of

“aggravated criminal sexual contact” under N.J. Stat. Ann.

§ 2C:14-3(a). Restrepo argues that this conviction does not

qualify as an aggravated felony under the Immigration and

Nationality Act (“INA”). We disagree and, as a result, we

conclude that we lack jurisdiction to review the BIA’s final

order of removal. See 8 U.S.C. § 1252(a)(2)(C). Restrepo also

contends that the removal proceedings brought against him are

time-barred, for they did not commence until a decade after his

conviction was imposed. We reject this argument as well and

we will dismiss Restrepo’s petition.

I.

On March 22, 1994, Restrepo’s daughter, Lina, was

interviewed by the police. She disclosed that on several

occasions her father had touched her breast and vagina through

her clothing with his hands. Police questioned Restrepo about

these accusations and he admitted that he first touched his

daughter inappropriately in 1990, and he had done so

intermittently for the next four years. Restrepo was charged

with third degree aggravated criminal sexual contact in violation

of N.J. Stat. Ann. § 2C:14-3(a). Under this statutory provision,

“[a]n actor is guilty of aggravated criminal sexual contact if he

commits an act of sexual contact with the victim under any of

the circumstances set forth in 2C:14-2(a)(2) through (7).” N.J.

Stat. Ann. § 2C:14-3(a). Restrepo pled guilty to a state

indictment which charged that he committed aggravated sexual

contact with a victim of at least thirteen years of age, but less

than sixteen years of age, a violation of 2C:14-2(a)(2). He was

3

sentenced to 364 days in prison and five years’ probation.

Restrepo has no criminal history which post-dates this

conviction.

In 2004, ten years after his guilty plea, the United States

Department of Immigration and Custom Enforcement

(“USICE”) served Restrepo with a notice to appear and charged

him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for

commission of an aggravated felony, to wit: sexual abuse of a

minor. Restrepo admitted the factual allegations contained in

the notice to appear and conceded removability as charged, but

he applied for a waiver of removability. A hearing on

Restrepo’s waiver request was held on December 23, 2004, after

which the immigration judge found that Restrepo was

removable and denied his application for waiver. Restrepo

appealed this decision, and the BIA affirmed on February 17,

2006. Restrepo filed a petition for review, and he also filed a

motion to reopen proceedings with the BIA, requesting that the

BIA adjust his status to that of a lawful resident pursuant to 8

U.S.C. § 1255. The BIA denied Restrepo’s motion to reopen on

July 20, 2006. Thereafter, Restrepo filed a second petition with

this Court, seeking review of the BIA’s July 20 order. On

August 11, 2006, the Court consolidated the petitions. The

government then filed an unopposed motion for remand to the

BIA on October 12, 2006. This motion was granted on April 11,

2007, and the BIA reaffirmed the decision of the immigration

judge on November 30, 2007. Restrepo now presents the instant

petition.

II.

We have jurisdiction to review final orders of removal

4

pursuant to 8 U.S.C. § 1252(a). Congress has stripped the Court

of jurisdiction, however, to review an order to remove an alien

who commits an aggravated felony. See § 1252(a)(2)(C). We

nonetheless retain jurisdiction to address this jurisdictional

prerequisite—or, more precisely, “whether an alien was

convicted of a non-reviewable aggravated felony.” Stubbs v.

Att’y Gen., 452 F.3d 251, 253 n.4 (3d Cir. 2006). The question

of whether an alien’s offense constitutes an aggravated felony

is reviewed de novo as it implicates a purely legal question that

governs the appellate court’s jurisdiction. See Valansi v.

Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). In addition, we

possess jurisdiction to hear “constitutional claims and questions

of law presented in petitions for review of final removal orders,”

even for those aliens convicted of an aggravated felony.

Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).

Our review of such claims is de novo. See De Leon-Reynoso v.

Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002). Restrepo’s statute

5

of limitations claim falls into this latter category.1 Finally, in the

proceedings below, the BIA adopted and affirmed the decision

of the immigration judge and provided additional reasoning in

support of its decision. Thus, we will review both the decision

of the immigration judge and the decision of the BIA. See Chen

v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

III.

This petition presents two principal issues for our

1

Somewhat surprisingly, Restrepo also requests that we

remand his case to the BIA for disposition of his application to

adjust his status to that of a lawful resident. We note that the

BIA previously addressed this issue. It concluded that Restrepo

failed to show that he was eligible for a status adjustment when

it denied his motion to reopen. Moreover, the BIA found

Restrepo inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) for

engaging in “acts which constitute the essential elements of a

crime involving moral turpitude” and it noted that it had already

held that Restrepo could not obtain a § 212 waiver of

removability. Restrepo contends that these holdings were

erroneous.

We lack jurisdiction to review the BIA’s denial of

Restrepo’s application. Under 8 U.S.C. § 1252(a)(2)(B), “no

court shall have jurisdiction to review—(i) any judgment

regarding the granting of relief under section . . . 245 [8 U.S.C.

§ 1255, dealing with adjustment of status], or (ii) any other

decision or action of the Attorney General . . . the authority for

which is specified . . . to be in the discretion of the Attorney

General[.]”

6

consideration: (1) whether Restrepo is removable for conviction

of an aggravated felony—specifically, sexual abuse of a minor,

and (2) whether the removal proceedings against Restrepo are

time-barred. The Court will address these issues in turn.

A. Was Restrepo Convicted of an Aggravated Felony?

The INA provides that “[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”

applies not only to federal offenses, but also to violations of

state law. See 8 U.S.C. § 1101(a)(43); Carachuri-Rosendo v.

Holder, ___ U.S. ___, 177 L. Ed. 2d 68, 78 n.1 (Sup. Ct. June

14, 2010). The INA defines aggravated felony to include, inter

alia, “murder, rape, or sexual abuse of a minor.” 8 U.S.C.

§ 1101(a)(43)(A). The question sub judice is whether a

conviction for aggravated criminal sexual contact, in violation

of N.J. Stat. Ann. § 2C:14-3(a), constitutes the aggravated

felony of sexual abuse of a minor under the INA.

The Supreme Court has recognized that several of the

offenses listed in the INA—including sexual abuse of a

minor—do not refer to “specific acts in which an offender

engaged on a specific occasion,” or “the specific way in which

an offender committed the crime,” but rather, they “must refer

to generic crimes.” Nijhawan v. Holder, U.S. , 129 S.

Ct. 2294, 2298, 2300 (2009). Accordingly, we employ the

“categorical approach” of Taylor v. United States, 495 U.S. 575

(1990), to determine whether an alien’s conviction constitutes

sexual abuse of a minor under the INA. Nijhawan, U.S. at

, 129 S. Ct. at 2300. The categorical approach requires a two

step analysis: first, we must ascertain the definition for sexual

7

abuse of a minor, and second, we must compare this “federal”

definition to the state statutory offense in question—in this case,

aggravated criminal sexual contact under N.J. Stat. Ann.

§ 2C:14-3(a). See Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir.

2004). Ordinarily, the categorical approach “prohibits

consideration of evidence other than the statutory definition of

the offense, thus precluding review of the particular facts

underlying a conviction.” See Stubbs, 452 F.3d at 253-54

(citing Singh, 383 F.3d at 147-48). However, where, as here, “a

statute criminalizes different kinds of conduct, some of which

would constitute [aggravated felonies] while others would not,

the court must apply a modified categorical approach by which

a court may look beyond the statutory elements to determine the

particular part of the statute under which the defendant was

actually convicted.” United States v. Stinson, 592 F.3d 460, 462

(3d Cir. 2010). If conduct that meets the federal definition of

sexual abuse of a minor is necessary for a conviction under N.J.

Stat. Ann. § 2C:14-3(a), then Restrepo’s conviction under N.J.

Stat. Ann. § 2C:14-3(a) qualifies as a conviction for sexual

abuse of a minor and, by extension, an aggravated felony for

which he is removable. See Singh, 383 F.3d at 153 (“Of course

it is irrelevant that sexually abusing a minor may be sufficient

for conviction under the statute; what matters is whether such

conduct is necessary for such a conviction.” (emphasis in

original)). If, however, the offense prohibited by N.J. Stat. Ann.

§ 2C:14-3(a) is categorically broader than the federal definition

of sexual abuse of a minor, then Restrepo’s conviction does not

render him removable.

1. Defining Sexual Abuse of a Minor

Our first task is to define the phrase “sexual abuse of a

8

minor,” as used in § 1101(a)(43). The INA contains no

definition of this phrase, but three United States Code

sections—18 U.S.C. §§ 2242, 2243, and 3509(a)—include

definitions of sexual abuse. Restrepo asserts that the proper

definition of sexual abuse of a minor appears in § 2243. The

government disagrees and contends that the definition of sexual

abuse of a minor is not clear and unambiguous. Thus, the

government argues that we must apply Chevron deference to the

BIA’s interpretation of this phrase, which is set forth in Matter

of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999).

Under the familiar principles of Chevron, “considerable weight

should be accorded to an executive department’s construction of

a statutory scheme it is entrusted to administer.” 2 Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

844 (1984). Furthermore, we have explained that Chevron

deference applies in general to the legislative framework erected

by the INA. Drakes v. Zimski, 240 F.3d 246, 250 (3d Cir.

2001).

When confronted with a potential Chevron application,

we administer a three-step analysis. First, we examine the

language of the statute to ascertain whether its meaning is plain

and unambiguous in light of the specific dispute at hand. Lee v.

2

By statute, the Attorney General is entrusted with the

administration and enforcement of the INA, which states that the

“determination and ruling by the Attorney General with respect

to questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1).

The Attorney General, in turn, has delegated this authority to the

BIA. 8 C.F.R. § 3.1(d)(1).

9

Ashcroft, 368 F.3d 218, 222 (3d Cir. 2004). When the language

of the statute is clear, our inquiry ends. Steele v. Blackman, 236

F.3d 130, 133 (3d Cir. 2001). When it is unclear, we must

endeavor to discern congressional intent by utilizing various

tools of statutory construction. Lee, 368 F.3d at 222. If this

endeavor is unsuccessful, we may defer to the interpretation of

the statute derived by the appropriate executive agency,

provided that the interpretation is reasonable. Id.; see also

Steele, 236 F.3d at 133 (noting general applicability of Chevron

deference to BIA interpretations of the INA).

Section 1101(a)(43)(A) defines “aggravated felony” to

include “murder, rape, or sexual abuse of a minor.” The INA

provides no further definition or cross reference expounding the

phrase “sexual abuse of a minor” except to state that it “applies

to an offense . . . whether in violation of Federal or State law.”

8 U.S.C. § 1101(a)(43).

In the past we have observed that, as a matter of general

structure and context, several subsections in § 1101(a)(43)

define aggravated felonies by cross-referencing particular

criminal provisions of the United States Code and by providing

parenthetical explanations. See Patel v. Ashcroft, 294 F.3d 465,

470-71 & n.7 (3d Cir. 2002). For example, § 1101(a)(43)(M)

defines as an aggravated felony “an offense that . . . involves

fraud or deceit in which the loss to the victim or victims exceeds

$10,000[,] or . . . is described in section 7201 of Title 26

(relating to tax evasion) in which the revenue loss to the

Government exceeds $10,000[.]” We have explained that the

parenthetical explanations in these particular subsections are

descriptive in nature, and “intended only as a general illustration

of the referenced criminal statutes,” to “assist the reader who is

10

attempting to determine whether a particular offense constitutes

an aggravated felony.” Patel, 294 F.3d at 471.

In other § 1101(a)(43) subsections, explanatory

parentheticals serve to restrict or limit those offenses which may

constitute an aggravated felony under the INA. See id. at 472.

For example, § 1101(a)(43)(F) defines as an aggravated felony

“a crime of violence (as defined in section 16 of title 18, United

States Code, but not including a purely political offense) for

which the term of imprisonment [is] at least one year.” Thus,

when Congress intended to remove certain behavior from the

INA’s ambit, it did so by incorporating a restrictive, rather than

descriptive, parenthetical.

Section 1101(a)(43)(A) is devoid of any descriptive or

restrictive parentheticals and simply lists the crimes of “murder,

rape, or sexual abuse of a minor” without further definition.

When contrasted with the structure of the statute as a whole,

such an omission is instructive, for it is typically understood that

the legislature proceeds purposefully when it inserts specific

language in one statutory section but omits it in another. See

Sandoval v. Reno, 166 F.3d 225, 241 (3d Cir. 1999). In other

§ 1101(a)(43) sections, Congress specified certain aggravated

felonies by cross-referencing criminal statutory provisions. The

fact that it did not do so with “sexual abuse of a minor”

indicates that it intended that the phrase be given its common

law definition.3 See Drakes, 240 F.3d at 249 (explaining that

3

As is discussed below, in Rodriguez-Rodriguez, the

BIA took note of the common definition of “sexual abuse of a

minor” before invoking the federal definition found in § 3509.

11

“[w]here federal criminal statutes use words of established

meaning without further elaboration, courts typically give those

terms their common law definition”). Alternatively, Congress

may have intended for the BIA to utilize its expertise to define

the phrase, see Chevron, 467 U.S. at 843-44 (“If Congress has

explicitly left a gap for the agency to fill, there is an express

delegation of authority to the agency to elucidate a specific

provision of the statute by regulation.”), or it may have inserted

the generic phrase because the definition of sexual abuse of a

minor varies by state and federal law, see United States v.

Zavala-Sustaita, 214 F.3d 601, 605-06 (5th Cir. 2000)

(explaining that because sexual abuse of a minor lacks legal

specificity, it is less likely that Congress intended a narrow

reading of the phrase). In any case, the pertinent point is that the

precise definition of the phrase is most assuredly not clear and

unambiguous.

According to Restrepo, the legislative history underlying

the INA evidences an intent to define sexual abuse of a minor by

reference to the federal criminal definition contained in § 2243.

The thrust of Restrepo’s argument centers upon timing; he

deems it significant that Congress amended the definition

section of § 2243 in the same legislation that amended

§ 1101(a)(43)(A) to include sexual abuse of a minor as an

12

aggravated felony.4 Restrepo asserts that “identical words used

in different parts of the same act are intended to have the same

meaning.” Dep’t of Revenue v. ACF Indus., 510 U.S. 332, 342

(1994) (quoting Sorenson v. Sec’y of Treasury, 475 U.S. 851,

860 (1986). This maxim is inapplicable to the legislative

enactment at issue, which was omnibus legislation. Restrepo’s

argument seeks to conjoin the meaning of words used in

separate and distinct statutes. Omnibus legislation often

involves the combination of disparate matters into a single bill,

the unitary packaging of which may be designed to present the

executive with an all-or-nothing signing decision. See Black’s

Law Dictionary 186 (9th ed. 2009) (defining “omnibus bill” as

a “single bill containing various distinct matters, usually drafted

in this way to force the executive either to accept all the

unrelated minor provisions or to veto the major provision”). In

4

Congress amended the definition of “sexual abuse of a

minor” contained in 18 U.S.C. § 2243 when it passed the Amber

Hagerman Child Protection Act of 1996 (hereinafter, the

“Amber Hagerman Act”). See Amber Hagerman Child

Protection Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-31

(codified at 18 U.S.C. § 2241). The Amber Hagerman Act was

enacted as part of the Omnibus Consolidated Appropriations Act

of 1997, Pub. L. 104-208, 110 Stat. 3009-1. In a separate

portion of the omnibus bill, Congress amended

§ 1101(a)(43)(A), inserting “sexual abuse of a minor” alongside

“murder” and “rape.” See H.R. Rep. No. 104-828, at 83 (1996)

(Conf. Rep.). Amendment of § 1101(a)(43)(A) was part of the

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”).

13

most instances, there is a broad spectrum of congressional intent

in play across the distinct statutes that comprise the larger

enactment.5 Hence, Restrepo’s statutory construction argument

is unavailing.

Restrepo also asserts that the definition of aggravated

felony set forth in § 1101(a)(43)(A) subsumes an element of

violence. He invokes the rule of noscitur a sociis, which

construes an ambiguous word in the context of the words

surrounding it. Black’s Law Dictionary 1160-61 (9th ed. 2009).

Restrepo contends that violence is an integral element of murder

and rape and, therefore, it must also be an integral element of

sexual abuse of a minor. Considering the broader context of the

legislation at issue, this contention is unpersuasive. See Lee,

368 F.3d at 222 (counseling courts to examine the statutory

language, as well as “the broader context of the statute as a

whole”); see also Kelly v. Robinson, 479 U.S. 36, 43 (1986) (“In

expounding a statute, we must not be guided by a single

sentence or member of a sentence, but look to the provisions of

5

A quick perusal of the omnibus legislation in question

illustrates this point. The primary purpose of the bill is to

appropriate monies for the fiscal year ending September 30,

1997. See Omnibus Consolidated Appropriations Act, 1997,

Pub. L. 104-208, 110 Stat. 3009-1. However, the bill also

amends, inter alia, the Age Discrimination in Employment Act

and the Privacy Protection Act, and enacts, inter alia, the Child

Pornography Prevention Act of 1996 and the Amber Hagerman

Act. It is simply unreasonable to assume that Congress

legislated with uniform intent across such disparate statutes.

14

the whole law, and to its object and policy.”). When Congress

amended § 1101(a)(43)(A) to include sexual abuse of a minor,

it simultaneously amended the INA to classify crimes of

domestic violence, stalking, child abuse, child neglect, and child

abandonment as grounds for deportability. See Pub. L. No. 104-

208, 110 Stat. 3009-639-40 (codified at 8 U.S.C.

§ 1227(a)(2)(E)). The House conference report specifically

connected these two amendments, explaining that

an alien convicted of crimes of domestic

violence, stalking, or child abuse is deportable.

The crimes of rape and sexual abuse of a minor

are elsewhere classified as aggravated felonies

under INA section 101(a)(43), thus making

aliens convicted of those crimes deportable and

ineligible for most forms of immigration benefits

or relief from deportation.

H.R. Rep. No. 104-828, at 83 (1996) (Conf. Rep.). As this

passage illustrates, Congress intended to expand both the

protections afforded to minors and the penalties applicable to

15

aliens who commit crimes against minors.6 Accordingly, it

would be counterintuitive to require an element of violence and

limit the definition of sexual abuse of a minor to those offenses

appearing in § 2243. This construction would exempt from

§ 1101(a)(43)(A) numerous offenses which are considered

6

Our recourse to legislative history is appropriate in this

matter. When “statutory language does not express Congress’s

intent unequivocally, a court traditionally refers to the legislative

history and the atmosphere in which the statute was enacted in

an attempt to determine the congressional purpose.” White v.

Lord Abbett & Co. LLC, 553 F.3d 248, 254 (3d Cir. 2009)

(quoting United States v. Gregg, 226 F.3d 253, 257 (3d Cir.

2000)). We are, of course, aware that exclusive reliance upon

legislative history is not preferred, and we have surveyed the

relevant legislative history with caution. See Morgan v. Gay,

466 F.3d 276, 278 (3d Cir. 2006) (stating that reliance “on

legislative history to discern legislative intent should be done

with caution, if at all”). In the present matter, the House

conference report is useful because it suggests that Congress

intended to implement comprehensive protections for minor

victims that were expansive in nature. This reading comports

with the structure of § 1101(a)(43)(A), which purposefully

leaves murder, rape, and sexual abuse of a minor undefined. In

addition, it is consistent with the BIA’s interpretation of sexual

abuse of a minor, a factor which is relevant in the third step of

the Chevron inquiry. See infra pp. 15-17.

16

sexual abuse of a minor under state law;7 such a reading does

not comport with the legislative history examined above and the

7

For example, under New Jersey law, aggravated

criminal sexual contact consists of an act of sexual

contact—defined as “an intentional touching by the victim or

actor, either directly or through the clothing, of the victim’s or

actor’s intimate parts”—upon a victim that is at least thirteen but

less than sixteen years of age. See N.J. Stat. Ann. §§ 2C:14-1,

2C:14-2. In Pennsylvania, an actor may be guilty of indecent

assault, which is defined as a “sexual offense,” if he or she

touches any of the “sexual or other intimate parts” of a person

under the age of thirteen or, alternatively, under the age of

sixteen when the offender is four or more years older than the

victim. See 18 Pa. Cons. Stat. § 3126. Under Delaware law, an

individual is guilty of unlawful sexual contact in the second

degree when he or she intentionally touches another person

under the age of eighteen on the anus, breast, buttocks or

genitalia and the touching occurs through the clothing. See Del.

Code Ann. 11, §§ 761, 768. Each of these criminal provisions

proscribes touching through the clothing. However, § 2243

specifically exempts touching through the clothing from the

range of defined criminal conduct. Thus, were we to accept

Restrepo’s interpretation of § 1101(a)(43)(A), none of the

above-described acts—all of which are defined as criminal sex

acts against minors—would qualify as an aggravated felony

under the INA.

17

broader context in which the statute was enacted.8

We have carefully examined the text of § 1101(a)(43)(A),

the precise context in which its language is used, and the larger

framework underlying the statute’s purpose. Our inquiry leaves

us in a state of interpretive uncertainty, and we are unable to

8

Congress amended § 1101(a)(43)(A) as part of the

IIRIRA. See supra note 4. It is undeniable that the overarching

purpose of this statute is to augment the procedures for removal

of aliens who are convicted of felony offenses. For example,

the enactment mandates detention pending deportation, 8

U.S.C. § 1231; withdraws judicial discretion to impose

probation or to suspend a sentence when the offense of

conviction requires deportation, see § 1101(a)(48); facilitates

removal on an expedited basis, § 1228; eliminates a § 212(c)

waiver of deportability previously available to aggravated

felons, § 1228; significantly restricts an aggravated felon’s

opportunity for appeal by stripping courts of jurisdiction to

review orders of removal, § 1252; forbids reentry when an alien

is convicted of an aggravated felony, § 1182; and gives

retroactive effect to the aggravated felony provision, see

§ 1101(a)(43); see also see William J. Johnson, Note, When

Misdemeanors are Felonies: The Aggravated Felony of Sexual

Abuse of a Minor, 52 N.Y.L. S CH. L. R EV. 419, 428-33 (2007)

(detailing various IIRIRA provisions increasing the scope of

deportability). The comprehensive severity of this statutory

enactment strongly suggests that the narrow definition of

“sexual abuse of a minor” proposed by Restrepo is inconsistent

with congressional intent.

18

discern the clear and unmistakable intent of Congress with

respect to the definition of “sexual abuse of a minor.” Thus, we

must look to the BIA’s interpretation of the phrase and

determine whether that interpretation is reasonable. In Matter

of Rodriguez-Rodriguez, an en banc panel of the BIA

thoroughly examined the statutory language, legislative intent,

and legislative purpose behind the INA’s enactment. See 22 I.

& N. Dec. 991. The panel determined that although “sexual

abuse of a minor” was undefined in the immigration statute, the

legislature’s unmistakable intent “was to expand the definition

of aggravated felony and to provide a comprehensive statutory

scheme to cover crimes against children.” Id. at 994. Thus,

Rodriguez-Rodriguez concluded that “sexual abuse of a minor”

was most appropriately defined by § 3509(a)(8), a code section

relating to the rights of child victims and witnesses in federal

criminal cases. Id. at 995-96. Section 3509(a)(8) defines sexual

abuse to include “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.” § 3509(a)(8).

The panel explained that the broad nature of § 3509’s

definition was consistent with congressional intent to enact

immigration legislation which comprehensively addressed the

range of misconduct perpetrated against children while

accommodating the divergent ways in which states categorize

and define child sex crimes. As part of its rationale, the Board

also looked to the common law definition of “sexual abuse,”

defined by Black’s Law Dictionary as “illegal sex acts

performed against a minor by a parent, guardian, relative, or

19

acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990).

According to Rodriguez-Rodriguez, “the common usage of the

term includes a broad range of maltreatment of a sexual

nature,” 9 a reading compatible with § 3509.10 22 I. & N. Dec. at

995-96. Significantly, the BIA recognized that it was “not

obliged to adopt a federal or state statutory provision” to define

“sexual abuse of a minor.” Id. at 994. As the Second Circuit

has explained:

It would be troubling if the BIA had done no

more than pluck the definition of “sexual abuse of

a minor” from § 3509(a). That statute sets forth

procedures for protecting child victims and child

witnesses in the course of federal litigation . . . .

We agree that the § 3509(a) definition is

appropriate not simply because it appears

somewhere in the United States Code, but

because it is consonant with the generally

understood broad meaning of the term “sexual

abuse” as reflected in Black’s: “An illegal sex act,

9

The panel’s recourse to Black’s Law Dictionary

comports with the accepted method of affording terms their

common definition when they are left undefined by Congress.

See Drakes, 240 F.3d at 249.

10

The Rodriguez-Rodriguez panel was careful to note

that it was not adopting § 3509(a)(8) as a restrictive or limiting

definition, “but invok[ing] it as a guide in identifying the types

of crimes we would consider to be sexual abuse of a minor.”

Rodriguez-Rodriguez, 22 I. & N. at 996.

20

esp. one performed against a minor.” See Black’s

Law Dictionary, 10 (7th ed. 1999).

Mugalli v. Ashcroft, 258 F.3d 52, 58-59 (2d Cir. 2001) (footnote

omitted). We agree with the Second Circuit that the

reasonableness of the BIA’s resort to § 3509(a) to define “sexual

abuse of a minor” is rooted in the consonance between that

statutory provision and the commonly accepted definition of

“sexual abuse.”

We conclude that the BIA’s definition of sexual abuse of

a minor is a reasonable one and that it is appropriate to exercise

Chevron deference. Accordingly, we will define sexual abuse

of a minor by reference to § 3509(a). Not only is our conclusion

consistent with principles of statutory construction, it also

represents a logical extension of our precedent. Indeed, this is

not the first time we have been presented with a question

concerning the meaning of sexual abuse of a minor. In Singh v.

Ashcroft, 383 F.3d 144 (3d Cir. 2004), we were asked to decide

whether a conviction for “unlawful sexual contact in the third

degree” under Delaware law constitutes “sexual abuse of a

minor” under § 1101(a)(43)(A). The petitioner in that matter,

Khaimraj Singh, was convicted for touching the breast of his

cousin, who was under the age of sixteen. Id. at 148. When he

later appeared before an immigration judge, he was deemed

removable as an aggravated felon. Id. at 149-50. The

immigration judge reached this disposition by invoking § 3509’s

definition of “sexual abuse,” but he did not apply the categorical

approach mandated by Taylor. See id. at 150, 152. We

criticized this interpretive analysis and elected not to apply

Chevron deference where “the IJ offered no reason for his

decision not to apply Taylor’s categorical approach,” and the

21

BIA affirmed without opinion. Id. at 152. We nonetheless

explained that we had “no quarrel” with the immigration judge’s

invocation of § 3509 and we reserved decision on whether that

code section appropriately defined sexual abuse of a minor. Id.

at 153.

Two years later, we assumed, without deciding, that the

BIA’s interpretation of sexual abuse of a minor was appropriate.

See Stubbs, 452 F.3d at 255-56. Furthermore, two of our sister

circuits have explicitly adopted the definition supplied in

Rodriguez-Rodriguez via Chevron deference, while several

others have assumed that § 3509 represents an appropriate

definition of “sexual abuse of a minor.” See Gaiskov v. Holder,

567 F.3d 832, 835 (7th Cir. 2009); James v. Mukasey, 522 F.3d

250, 254 (2d Cir. 2008); Mugali v. Ashcroft, 258 F.3d 52, 55-56

(2d Cir. 2001); see also Vargas v. Dep’t of Homeland Sec., 451

F.3d 1105, 1107-08 (10th Cir. 2006) (assuming applicability of

§ 3509 definition); Bahar v. Ashcroft, 264 F.3d 1309, 1311-12

(11th Cir. 2001) (holding that the Rodriguez-Rodriguez

interpretation is not unreasonable); Zavala-Sustaita, 214 F.3d

601, 606-08 (5th Cir. 2000) (explaining that § 3509 definition

is consistent with § 1101(a)(43)(A)’s definition of sexual abuse

of a minor). In contrast, the Ninth Circuit is the only federal

appellate court to reject the Rodriguez-Rodriguez interpretation.

In Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008)

(en banc), the Ninth Circuit held that Chevron deference was

inappropriate, and it defined sexual abuse of a minor by

reference to § 2243. We do not find the ratio decidendi of

Estrada-Espinoza to be persuasive for several reasons. First, it

would be difficult to conjure up two more divergent fact

patterns. Estrada-Espinoza, age twenty, was ensconced in a

22

consensual relationship with his fifteen- or sixteen-year-old

girlfriend. 546 F.3d at 1150. Both sets of parents approved of

the relationship, and, ultimately, the couple raised a child

together. Id. at 1150, 1160. Driven by these compelling facts,

and armed with a heuristic survey of statutory rape law, the

Ninth Circuit found no “abuse” element in Estrada-Espinoza’s

conviction.11 Id. at 1152-56. In stark contrast, Restrepo’s

sexual touching of his daughter, commencing when she was

only twelve years old,12 is patently non-consensual and abusive.

Second, the Estrada-Espinoza court’s statutory

11

The Estrada-Espinoza court surveyed the common

contemporary meaning of sexual abuse of a minor, with

particular emphasis on the word “abuse.” Id. at 1152-55. It

concluded that, under contemporary standards, not all sexual

activity with older adolescents—such as sixteen- and seventeen-

year-olds—is abusive. Id. at 1153. Although its rather myopic

analysis of statutory rape law is dicta, the court clearly utilized

this analysis to justify its determination that § 2243 is consistent

with the “generic sense in which [sexual abuse of a minor] is

now used in the criminal codes of most states.” See Taylor, 495

U.S. at 598.

12

Restrepo was charged with acts of sexual contact that

occurred “from 1992 to approximately December of 1993[,]”

but Restrepo admitted to police that he began fondling his

daughter in 1990, approximately four years prior to his March

1994 arrest. Thus, according to Restrepo’s own admission, his

daughter—who was born on July 15, 1977—was twelve years

old when the offense began.

23

construction analysis is fatally flawed. Concluding that the

generic elements of sexual abuse of a minor are defined in 18

U.S.C. § 2243, the court rationalizes Congress’s failure to cross-

reference § 2243 in § 1101(a)(43)(A) as follows:

[T]here is a clear distinguishing characteristic

between the aggravated felonies that are linked to

other statutory provisions and those that are not.

Those that refer to a broad category of offenses,

using a potentially ambiguous phrase, reference

other statutory provisions for clarification. On the

other hand, those that refer to a specific crime

which is already clearly defined in criminal law

have no need for a cross-reference.

546 F.3d at 1155. We disagree with this analysis. We believe

it is far more likely that Congress eschewed cross references for

crimes identified only by common parlance, such as murder,

rape, sexual abuse of a minor, and theft because these terms are

not clearly defined and cannot be clearly defined by a simple

cross-reference. To the contrary, Congress purposefully did not

employ cross-references for these generic crimes to ensure the

incorporation of a broad range of diverse state statutory

definitions.

“Theft” is a prime example of a broad term that

potentially falls within the ambit of many state statutory

definitions. Indeed, the language of the INA implicitly

acknowledges that there are a variety of “theft” and “burglary”

offenses. See 8 U.S.C. § 1101(a)(43)(G) (listing “a theft offense

(including receipt of stolen property) or burglary offense for

which the term of imprisonment [is] at least one year” as an

24

aggravated felony). Theft offenses range from “steal[ing]

property” 13 to “knowingly possess[ing] stolen property” 14 to

13

N.Y. Penal Law § 155.25; see also United States v.

Graham, 169 F.3d 787 (3d Cir. 1999) (holding that an alien who

was convicted of petit larceny under N.Y. Penal Law § 155.25

and received a sentence of one year was removable under the

INA). Some statutes include specifications as to the value of the

property stolen. See, e.g., Cal. Penal Code § 487(a) (prohibiting

the taking of “money, labor, or real or personal property . . . of

a value exceeding four hundred dollars”); see also Ramirez-

Villalpando v. Holder, 601 F.3d 891 (9th Cir. 2010) (holding

that a conviction under Cal. Penal Code 487(a) is a conviction

for an aggravated felony under the INA). Another variation

appearing in many statutes is an element of intent. See, e.g.,

Conn. Gen. Stat. § 53a-119 (“A person commits larceny when,

with intent to deprive another of property or to appropriate the

same to himself or a third person, he wrongfully takes, obtains

or withholds such property from an owner.”); see also Almeida

v. Holder, 588 F.3d 778, 789 (2d Cir. 2009) (holding that a

conviction under either theory of intent articulated in Conn.

Gen. Stat. §53a-119 is a conviction for an aggravated felony).

In addition, there may be a multitude of nuances to a single

statutory definition. For example, Conn. Gen. Stat. § 53a-119

contains a basic definition of larceny, followed by a list of

eighteen offenses included in that definition.

14

See N.Y. Penal Law § 165.50 (“A person is guilty of

criminal possession of stolen property in the third degree when

he knowingly possesses stolen property, with intent to benefit

25

“us[ing] the services or property of another person entrusted to

[the defendant] or placed in his or her possession . . . for a

limited use.” 15 The phrase “sexual abuse of a minor” similarly

himself or a person other than an owner thereof or to impede the

recovery by an owner thereof, and when the value of the

property exceeds three thousand dollars.”); see also Burke v.

Mukasey, 509 F.3d 695 (5th Cir. 2007) (holding that a

conviction under N.Y. Penal Law § 165.50 is an aggravated

felony conviction).

15

Nev. Rev. Stat. Ann. § 205.0832(1)(b); see also Nolos

v. Holder, 2010 U.S. App. LEXIS 14060 (5th Cir. 2010)

(holding that Nev. Rev. Stat. Ann. § 205.0832(1)(b) meets the

court’s “generic definition of theft” and therefore qualifies as an

aggravated felony).

Of course, some criminal conduct that might be

characterized as “theft” does not qualify as an aggravated felony

under § 1101(a)(43)(G). See, e.g., Cal. Veh. Code § 10851(a)

(“Any person who drives or takes a vehicle not his or her own,

without the consent of the owner thereof, and with intent either

to permanently or temporarily deprive the owner thereof of his

or her title to or possession of the vehicle . . . or any person who

is a party or an accessory to or an accomplice in the driving or

unauthorized taking or stealing, is guilty of a public offense[.]”),

Or. Rev. Stat. § 165.800 (“A person commits the crime of

identity theft if the person, with the intent to deceive or defraud,

obtains, possesses, transfers, creates, utters or converts to the

person’s own use the personal identification of another

person.”); see also Penuliar v. Mukasey, 528 F.3d 603, 611-14

26

covers a broad assortment of statutes16 and criminal activities.

Finally, were we to limit the definition of sexual abuse of

a minor to the conduct proscribed in § 2243, a host of

misconduct criminalized by state law would not qualify as an

aggravated felony under the INA. For instance, any state statute

that criminalizes inappropriate touching of a minor through the

clothing is beyond the scope of § 2243, which requires a “sexual

act” as defined in 18 U.S.C. § 2246, and which does not include

touching through the clothing. Felony convictions under a

variety of state criminal code provisions would not qualify as

aggravated felonies if we relied on § 2243 for the definition of

sexual abuse of a minor.17 Such a result would run counter to

(9th Cir. 2008) (holding that a conviction under Cal. Veh. Code

§ 10851(a) does not categorically qualify as an aggravated

felony conviction), Mandujano-Real v. Mukasey, 526 F.3d 585

(9th Cir. 2008) (holding that a conviction under Or. Rev. Stat.

§ 165.800 is not a conviction for an aggravated felony theft

offense).

16

See, e.g., Alaska Stat. §§ 11.41.434, 11.41.436,

11.41.438, 11.41.440, D.C. Code §§ 22-3009.01, 22-3009.02,

Me. Rev. Stat. Ann. tit. 17-A, § 254, Md. Code Ann., Crim. Law

§ 3-602, Utah Code Ann. § 76-5-401.1, Wyo. Stat. Ann. §§ 6-2-

314, 6-2-315, 6-2-316, 6-2-317. Even the Estrada-Espinoza

court acknowledged that “sexual abuse of a minor” is “a

common title for offenses under state criminal codes.” 546 F.3d

at 1156.

17

See supra notes 6 and 7 and accompanying text.

27

Congress’ clear intent to expand the scope of activities

constituting an aggravated felony. The Estrada-Espinoza court’s

definition of sexual abuse of a minor does not give effect to this

legislative purpose.

We note with interest that the Ninth Circuit recently

retreated from its position in Estrada-E spinoz a .

Notwithstanding its certainty in Estrada-Espinoza that Congress

“intended the ‘aggravated felony’ of ‘sexual abuse of a minor’

to incorporate the definition of ‘sexual abuse of a minor’ in 18

U.S.C. § 2243,” 546 F.3d at 1152 n.2, the Ninth Circuit

subsequently explained that Estrada-Espinoza’s “holding was

intended to define statutory rape laws only.” United States v.

Medina-Villa, 567 F.3d 507, 515 (9th Cir. 2009).

For all of these reasons, we reject the analysis set forth in

Estrada-Espinoza.

2. Applying the Categorical Approach

To complete the Taylor analysis, we must compare the

definition of aggravated criminal sexual contact under N.J. Stat.

Ann. § 2C:14-3(a) with our definition of sexual abuse of a

minor. Section 2C:14-3(a) provides that “[a]n actor is guilty of

aggravated criminal sexual contact if he commits an act of

sexual contact with the victim under any of the circumstances

set forth in 2C:14-2(a)(2) through (7).” N.J. Stat. Ann. § 2C:14-

3(a). In Restrepo’s case, the sexual contact for which he was

convicted was the intentional touching of his daughter’s breasts

28

and vagina through her clothing.18 The circumstances set forth

in § 2C:14-2(a)(2) through (7) are phrased in disjunctive form,

and, therefore, we must identify the specific subsection under

which Restrepo was convicted.19 Singh, 383 F.3d at 162; see

also Valansi, 278 F.3d at 214. Restrepo’s charging instrument

alleges that he “did commit act(s) of aggravated criminal sexual

contact upon L.R., a child of at least (13) but less than (16)

years, with said defendant being related to L.R. by blood or

affinity to the third degree[.]” Hence, the circumstances listed

in N.J. Stat. Ann. § 2C:14-2(a)(2), (“The victim is at least 13 but

less than 16 years old”), and (a)(2)(a), (“The actor is related to

the victim by blood or affinity to the third degree”), are the

relevant circumstances with respect to the “act of sexual

contact” that led to Restrepo’s conviction. Under Taylor, we

must now determine whether conduct that constitutes “sexual

abuse of a minor” is necessary for a conviction under these

18

N.J. Stat. Ann. § 2C:14-1(d) defines “sexual contact”

as “an intentional touching by the victim or actor, either directly

or through clothing, of the victim’s or actor’s intimate parts for

the purpose of degrading or humiliating the victim or sexually

arousing or sexually gratifying the actor. Sexual contact of the

actor with himself must be in view of the victim whom the actor

knows to be present[.]”

19

The statutory definition of the offense is phrased in

disjunctive form, and it is therefore appropriate to apply the

modified categorical approach. Hence, we examine the

charging instrument, to determine which subsections apply to

Restrepo’s conviction. See Singh, 383 F.3d at 162.

29

provisions of New Jersey law.

Section 3509(a)(8)20 provides that “the term ‘sexual

abuse’ includes the employment, use, persuasion, inducement,

enticement, or coercion of a child to engage in . . . sexually

explicit conduct[.]” Additionally, § 3509(a)(9) defines

“sexually explicit conduct” to include “sexual contact[,]” which

refers to “the intentional touching, either directly or through

clothing, of the genitalia, anus, groin, breast, inner thigh, or

buttocks of any person with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify sexual desire of any person[.]”

Considering the breadth of conduct encompassed by these

provisions, it is plain that an individual convicted of “aggravated

criminal sexual contact” under N.J. Stat. Ann. § 2C:14-3(a) has

necessarily engaged in an act within the definition of “sexual

abuse of a minor” provided by § 3509. Therefore, Restrepo’s

conviction falls within the ambit of “sexual abuse of a minor,”

which constitutes an aggravated felony under § 1101(a)(43).

As previously noted, supra Part II, we are without

jurisdiction to review an order to remove an alien who

committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C).

In light of our conclusion that Restrepo’s conviction qualifies as

a conviction for an aggravated felony, we lack jurisdiction to

20

As previously discussed, we have concluded that it is

appropriate to defer to the BIA’s definition of sexual abuse of

a minor, elucidated in Rodriguez-Rodriguez. Thus, like the

BIA, we will rely on 18 U.S.C. § 3509 “as a guide in identifying

the types of crimes we would consider to be sexual abuse of a

minor.” 22 I. & N. Dec. at 996.

30

review the BIA’s order, and we will not disturb it.

B. Are the Removal Proceedings Time-Barred?

Restrepo invokes 28 U.S.C. § 2462, a federal “catch-all”

statute of limitations, to argue that the removal proceeding

initiated against him in 2004 was untimely. Section 2462

provides that proceedings for the enforcement of “any civil fine,

penalty, or forfeiture” must be commenced no later than five

years from the date when the claim accrued, except as otherwise

provided by law. Restrepo contends that deportation is a

forfeiture and/or a penalty, and he asserts that the removal action

against him—which was initiated approximately ten years after

his conviction—is time-barred.

The BIA rejected Restrepo’s argument, concluding that

removal is not a civil penalty or forfeiture. It also noted that

under 8 U.S.C. § 1229(d), Restrepo had “no legally enforceable

right to have removal proceedings commenced within any

specific time frame after the date of the conviction rendering

[him] removable.” 21 For these reasons, the BIA declined to

apply § 2462’s “catch-all” statute of limitations to the removal

proceedings against Restrepo. Despite our discomfiture with the

prolonged delay in initiation of removal proceedings, we are

21

Section 1229(d) provides for expeditious

commencement of removal proceedings, but it also states that

“[n]othing in this subsection shall be construed to create any

substantive or procedural right or benefit that is legally

enforceable by any party against the United States or its

agencies or officers or any other person.” § 1229(d)(2).

31

compelled to concur in the conclusions of the BIA.

At the outset, we note that the record is devoid of any

reasonable explanation for USICE’s failure to initiate

proceedings against Restrepo until ten years after his conviction,

and eight years after the definition of “aggravated felony” was

amended to include sexual abuse of a minor. We find this

enforcement history troubling, and it begs the question which we

posed to the Attorney General at oral argument, in essence: is it

not appropriate to impose some statute of limitations governing

the period within which the USICE may prosecute the removal

of aliens convicted of aggravated felonies? Our inquiry is

rhetorical, however, in that the statute imposes no time

constraints on such proceedings, and the task of creating a

limitations period lies with the legislature, not the judiciary. See,

e.g., Lonchar v. Thomas, 517 U.S. 314, 328 (1996)

(commenting on the “institutional inappropriateness” of making

policy “through an ad hoc judicial exception, rather than through

congressional legislation or through the formal rulemaking

process”); see also Rothensies v. Electric Storage Battery Co.,

329 U.S. 296, 303 (1946) (noting that “it is for Congress rather

than for the courts to create and limit” exceptions to statutory

limitations periods). Section 1229 directs the government to

“begin any removal proceedings as expeditiously as possible

after the date of conviction[,]” § 1229(d)(1), but it imposes no

time limitation upon government action, and it specifically

disclaims the creation of any enforceable rights.

Restrepo’s § 2462 argument relies upon a quotation from

the 1948 Supreme Court case of Fong Haw Tan v. Phelan, 333

U.S. 6, 10 (1948): “[Removal] is the forfeiture for misconduct

of a residence in this country. Such a forfeiture is a penalty.”

32

Restrepo’s reliance on this statement is misplaced, because it

does not address the question of whether removal proceedings

qualify as a forfeiture or a penalty for purposes of § 2462,22 and

because it is squarely refuted by a host of cases from the

Supreme Court and this Court, holding that removal is not a

penalty.23 Thus, we conclude that § 2462’s five-year statute of

limitations does not apply to removal proceedings.

22

In Fong Haw Tan, the Court was merely noting that

deportation is a “drastic measure” with “considerable”

consequences for the alien. Id. Fong Haw Tan addressed the

circumstances under which an alien was considered to be

“sentenced more than once[,]” and thereby removable, under a

law which has since been repealed. Id. at 7-8. The Court

remarked on the harsh consequences of deportation in order to

justify a narrow construction of the language at issue. Id. at 10.

Consequently, the quoted language does not control the question

of whether Restrepo’s removal proceedings are untimely under

§ 2462.

23

For instance, in INS v. Lopez-Mendoza, 468 U.S. 1032

(1984), Justice O’Connor wrote that “[a] deportation proceeding

is . . . not [intended] to punish an unlawful entry[.]” Id. at 1038.

Decades earlier, Chief Justice Taft similarly stated that “[i]t is

well settled that deportation, while it may be burdensome and

severe for the alien, is not a punishment.” Mahler v. Eby, 264

U.S. 32, 39 (1924). Judges of this Court have also explained

that “deportation statutes are not penal in nature.” Bufalino v.

INS, 473 F.2d 728, 739 (3d Cir. 1973) (Adams, C.J.,

concurring).

33

IV.

For the reasons explained above, we will deny the

petition for review.

34