Richard Amos v. Loretta Lynch

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2005

RICHARD JESUS AMOS,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

No. 14-1633

RICHARD JESUS AMOS,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petitions for Review of Orders of the Board of Immigration

Appeals.

Argued: March 24, 2015 Decided: June 10, 2015

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Petitions for review granted and order of removal vacated by

published opinion. Judge Keenan wrote the opinion, in which

Judge Motz and Judge Thacker joined.

ARGUED: Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver

Spring, Maryland, for Petitioner. Rebecca Hoffberg Phillips,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Joyce R. Branda, Acting Assistant

Attorney General, Civil Division, John S. Hogan, Senior

Litigation Counsel, Office of Immigration Litigation, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

2

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we review consolidated petitions filed by

Richard Jesus Amos, a citizen of the Philippines, challenging

decisions of the Board of Immigration Appeals (the BIA, or the

Board), which dismissed Amos’s appeal from an immigration

judge’s order of removal and denied Amos’s motion for

reconsideration. The BIA determined that Amos was removable

based on his conviction in 1990 for “causing abuse to a child,”

in violation of Maryland law.

The BIA held that this offense qualified as an “aggravated

felony” under the generic federal crime of “sexual abuse of a

minor,” as listed in 8 U.S.C. § 1101(a)(43)(A). We are not

persuaded by the BIA’s analysis and its conclusion, because the

least culpable conduct under the former Maryland statute

prohibiting sexual abuse of a child does not necessarily qualify

as the generic federal offense of “sexual abuse of a minor,” as

interpreted by the BIA. We therefore grant Amos’s petitions for

review and vacate the order for his removal.

I.

Amos entered the United States in 1980 as a lawful

permanent resident, when he was about nine years old. In 1990,

he was convicted in a Maryland state court of the crime of

“causing abuse to [a] child” (the child abuse conviction), in

3

violation of former Maryland Code, Article 27 § 35A (1988).

That statute stated in relevant part:

(a) Definitions –

(1) In this section the following words have the

meanings indicated.

(2) “Abuse” means:

(i) The sustaining of physical injury by a child as a

result of cruel or inhumane treatment or as a result

of a malicious act by any parent or other person who

has permanent or temporary care or custody or

responsibility for supervision of a child under

circumstances that indicate that the child’s health or

welfare is harmed or threatened thereby; or

(ii) Sexual abuse of a child, whether physical

injuries are sustained or not.

(3) “Child” means any individual under [18 years].

(4)(i) “Sexual abuse” means any act that involves

sexual molestation or exploitation of a child by a

parent or other person who has permanent or temporary

care or custody or responsibility for supervision of a

child. (ii) “Sexual abuse” includes, but is not

limited to: 1. Incest, rape, or sexual offense in any

degree; 2. Sodomy; and 3. Unnatural or perverted

sexual practices.

(b) Violation constitutes felony; penalty. – A parent

or other person who has permanent or temporary care or

custody or responsibility for the supervision of a

child who causes abuse to the child is guilty of a

felony and on conviction is subject to imprisonment in

the penitentiary not exceeding 15 years.

(the Maryland statute, or the former Maryland statute). Md.

Code, Art. 27 § 35A (1988) (emphasis added). The Maryland court

sentenced Amos to a term of 18 months’ imprisonment, with the

4

entire sentence suspended, and to three years of supervised

probation.

In April 2008, the Department of Homeland Security (DHS)

issued a “notice to appear” and initiated removal proceedings

against Amos based on 8 U.S.C. § 1227(a)(2)(A)(iii), which

authorizes the Attorney General to remove “[a]ny alien who is

convicted of an aggravated felony at any time after admission.”

DHS contended that Amos’s child abuse conviction qualified as an

aggravated felony, namely, the “sexual abuse of a minor,” under

8 U.S.C. § 1101(a)(43)(A) (Subsection A), which lists “murder,

rape, or sexual abuse of a minor” as qualifying aggravated

felonies. 1

Although Amos admitted the fact of his conviction, he

disputed that it qualified as an aggravated felony of “sexual

abuse of a minor.” The immigration judge (IJ) rejected Amos’s

argument, and held that Amos was removable under Subsection A.

On appeal from the IJ’s order of removal, the BIA reviewed

the language in the former Maryland statute and concluded that

while the part of the statute addressing sexual abuse of a child

1

DHS also contended that Amos’s conviction qualified as an

aggravated felony under 8 U.S.C. § 1101(a)(43)(F) (Subsection

F), because his conviction constituted a crime of violence.

Although the IJ concluded that Amos’s conviction rendered him

removable under Subsection F, the BIA later overruled this

decision and concluded that a violation of the Maryland statute

was not a crime of violence under Subsection F.

5

“conformed” to the meaning of “sexual abuse of a minor” under

Subsection A, the remainder of the statute prohibiting physical

injury to a child did not. The BIA therefore approved the IJ’s

application of a modified categorical analysis, which permitted

review of Amos’s underlying record of conviction to determine

which portion of the Maryland statute formed the basis of Amos’s

conviction. 2 Because the record of conviction “revealed that

[Amos] put the 5 year old victim’s penis in his mouth,” the BIA

concluded that Amos had been convicted under former

Section 35A(a)(2)(ii) and that this offense qualified as “sexual

abuse of a minor” within the meaning of Subsection A.

In reaching this conclusion, the BIA did not define the

meaning of “sexual abuse of a minor,” but instead cited an

earlier BIA decision, Matter of Rodriguez-Rodriguez, 22 I. & N.

Dec. 991 (B.I.A. 1999), stating that this prior decision

“defin[ed] ‘sexual abuse’ as employed in 18 U.S.C. § 3509 to

2

The modified categorical approach applies in limited

circumstances involving “divisible” statutes that prohibit

“multiple, alternative versions of the crime.” Descamps v.

United States, 133 S. Ct. 2276, 2284-85 (2013). A statute will

be deemed “divisible for purposes of applying the modified

categorical approach only if at least one of the categories into

which the statute may be divided constitutes, by its elements,”

the generic federal offense. United States v. Cabrera-Umanzor,

728 F.3d 347, 352 (4th Cir 2013) (emphasis omitted). When

applicable, the modified categorical approach permits review of

certain materials in the underlying criminal record to determine

which alternative crime formed the basis for the conviction.

Id. at 350.

6

cover a broad range of acts of a sexual nature.” Under 18

U.S.C. § 3509(a)(8), “sexual abuse” is defined as “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.” See Rodriguez-Rodriguez, 22 I. & N. Dec. at 996.

The BIA determined that this “broad range of acts” necessarily

encompassed the crime of sexual abuse of a child under the

former Maryland statute and, accordingly, dismissed Amos’s

appeal from the IJ’s removal order.

In a later decision denying Amos’s motion for

reconsideration, the BIA expanded its analysis and stated that

under Maryland law, a conviction for “sexual abuse” under former

Section 35A(a)(2)(ii) required proof of three elements: (1) that

the defendant sexually molested or exploited the victim by means

of a specific act; (2) that the victim was under the age of 18;

and (3) that the defendant was a parent or someone responsible

for the care, custody, or supervision of the victim. See

Schmitt v. State, 63 A.3d 638, 643 (Md. Ct. Spec. App. 2013).

The BIA observed that to satisfy the first element under

Maryland law, an affirmative act of molesting or exploiting a

child is not required, because the statute also encompasses an

“omission or failure to act to prevent molestation or

7

exploitation when it is reasonably possible to act.” See Degren

v. State, 722 A.2d 887, 899 (Md. 1999) (discussing different

Maryland statute using same language as relevant portion of the

former Maryland statute). Nevertheless, the BIA concluded that,

under Degren, the least culpable conduct qualifying as “causing

sexual abuse of a child” satisfied the generic federal offense

of “sexual abuse of a minor.” The only reasoning the BIA

provided for this conclusion is that the generic federal

offense, as construed in Rodriguez-Rodriguez, does not require

physical contact with the victim and “includes a broad range of

maltreatment of a sexual nature” as detailed in 18 U.S.C.

§ 3509(a)(8). Accordingly, the BIA denied Amos’s motion for

reconsideration.

Amos filed two petitions for review with this Court, from

the initial BIA decision and from the BIA’s denial of his motion

for reconsideration. We consolidated Amos’s two petitions, in

accordance with 8 U.S.C. § 1252(b)(6). See Crespin-Valladares

v. Holder, 632 F.3d 117, 122 (4th Cir. 2011) (citing Stone v.

INS, 514 U.S. 386, 394 (1995)).

II.

A.

The central issue presented in this appeal is whether the

BIA erred in concluding that Amos’s conviction under the former

8

Maryland statute qualifies as the aggravated felony of “sexual

abuse of a minor,” within the meaning of Subsection A. We

consider this question of law de novo. 3 Castillo v. Holder, 776

F.3d 262, 267 (4th Cir. 2015).

B.

Amos argues that the BIA erred in holding that his Maryland

child abuse conviction qualifies him for removal under

Subsection A for the aggravated felony of “sexual abuse of a

minor.” According to Amos, the BIA misapplied the decision in

Rodriguez-Rodriguez, and incorrectly concluded that the least

culpable conduct under the former Maryland statute fell within

the generic federal offense listed in Subsection A. Thus, Amos

contends that his Maryland conviction does not render him

removable under Subsection A, because the conduct proscribed by

the former Maryland statute is not encompassed within the

generic federal offense of “sexual abuse of a minor.”

In response, the government argues that the BIA correctly

determined that the elements of sexual abuse under the former

Maryland statute fell within the broad meaning of “sexual abuse

3

We observe that judicial review generally is precluded in

cases involving aliens who are removable as aggravated felons.

8 U.S.C. § 1252(a)(2)(C); Kporlor v. Holder, 597 F.3d 222, 225-

26 (4th Cir. 2010). However, we retain jurisdiction to review

constitutional claims or questions of law, including the

question whether a particular underlying crime qualifies as an

aggravated felony. 8 U.S.C. § 1252(a)(2)(D); Soliman v.

Gonzales, 419 F.3d 276, 280 (4th Cir. 2005).

9

of a minor” in Subsection A. Unlike the BIA, the government

does not maintain that the Board articulated a particular

definition of “sexual abuse” in Rodriguez-Rodriguez. Rather,

the government asserts that we owe significant deference to the

BIA’s reliance on an “interpretive touchstone,” namely, the

definition of “sexual abuse” provided in 18 U.S.C. § 3509(a)(8).

Additionally, the government contends that the BIA’s application

of that “guide” in the present case permitted the BIA to

conclude that Amos’s conviction, which was based on charges of

sexual abuse rather than of physical abuse, qualified as a

removable offense under Subsection A. We disagree with the

government’s arguments.

C.

i.

Under the Immigration and Nationality Act (INA), a non-

citizen is removable if he is “convicted of an aggravated felony

at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii).

The INA defines “aggravated felony” in 8 U.S.C. § 1101(a)(43)

(the aggravated felony statute) by enumerating an extensive list

of crimes, including in Subsection A the crimes of “murder,

rape, or sexual abuse of a minor.”

In determining whether a conviction under a particular

state law qualifies as an aggravated felony for removal

purposes, we generally apply the categorical approach set forth

10

in Taylor v. United States, 495 U.S. 575 (1990). Castillo, 776

F.3d at 267-68; see also Estrada-Espinoza v. Mukasey, 546 F.3d

1147, 1152 (9th Cir. 2008) (en banc) 4 (applying categorical

approach to determine whether state crime qualified as sexual

abuse of a minor under Subsection A). Under a categorical

approach, we do not look “‘to the facts of the particular prior

case,’ but instead to whether ‘the state statute defining the

crime of conviction’ categorically fits within the ‘generic’

federal definition of a corresponding aggravated felony.”

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). “A state

offense is a categorical match with a federal offense only if a

conviction of the state offense necessarily involved facts

equating to the generic federal offense.” Castillo, 776 F.3d at

267 (quoting Moncrieffe, 133 S. Ct. at 1684) (citation and

brackets omitted).

When applying a categorical approach, we typically begin by

considering the required elements of the generic federal crime.

See Taylor, 495 U.S. at 590, 592 (explaining that a federal

statute describing a generic crime “must” employ a “uniform,

4

Overruled in part on other grounds by United States v.

Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc)

(per curiam), abrogated by Descamps v. United States, 133 S. Ct.

2276 (2013).

11

categorical definition[] to capture all offenses of a certain

[type] . . . regardless of technical definitions and labels

under state law). This approach allows federal laws to be

applied uniformly to determine the effect of prior state

convictions. See id. at 590-91; Estrada-Espinoza, 546 F.3d at

1157-58.

The generic federal crime at issue in the present case,

“sexual abuse of a minor” under Subsection A, is not defined in

the INA. We therefore turn to consider the BIA’s interpretation

of the meaning of this generic federal offense.

ii.

We generally give substantial deference to the BIA’s

precedential decisions interpreting the INA, because “Congress

conferred on the BIA decisionmaking power to decide such

questions of law.” Martinez v. Holder, 740 F.3d 902, 909 (4th

Cir. 2014) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999), and Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842-43 (1984)). Under the holding in

Chevron, we are required to accept the BIA’s construction of an

otherwise silent or ambiguous statute, unless such construction

is “arbitrary, capricious, or manifestly contrary to the

statute.” 467 U.S. at 843-44. Also, we “may not substitute”

our “own construction of a statutory provision for a reasonable

interpretation” by the BIA. Id. at 844.

12

In prior cases, we have applied the principles of Chevron

to the BIA’s precedential interpretation of generic federal

crimes listed in the aggravated felony statute. 5 See Castillo,

776 F.3d at 266-67 (considering BIA’s interpretation of “theft

offense” in the aggravated felony statute, and assuming that

BIA’s definition was reasonable under Chevron); Soliman, 419

F.3d at 281-83 (engaging in Chevron analysis but declining to

apply deference because BIA’s definition of “theft offense”

conflicted with Congress’s intent to exclude crimes involving

obtaining property by fraud). However, the principles of

Chevron deference are not applicable to the Board’s decision in

Amos’s case because, although issued by a three-judge panel of

the BIA, it was an unpublished decision that does not carry

precedential weight.

A potential complication nevertheless arises in our

analysis here, because the BIA relied in Amos’s case on

Rodriguez-Rodriguez, a precedential BIA decision to which

Chevron deference can apply. See Hernandez v. Holder, 783 F.3d

189, 192 (4th Cir. 2015) (explaining that nonprecedential BIA

5

Although we generally defer to the BIA’s interpretation of

the generic federal crimes listed in the INA, we do not defer to

the BIA’s application of those definitions to particular state

statutes. Whether the elements of a particular state offense

are a categorical match with the elements of a generic federal

offense requires an analysis of state criminal law, which does

not lie within the BIA’s authority or expertise. Soliman v.

Gonzales, 419 F.3d 276, 281 (4th Cir. 2005).

13

decision relied on precedential decision that was entitled to

deference). Thus, we first must consider the decision in

Rodriguez-Rodriguez to determine whether and to what extent it

impacts our review of Amos’s case.

The question before the BIA in Rodriguez-Rodriguez was

whether a Texas statutory offense of “indecency with a child by

exposure” constituted “sexual abuse of a minor” under Subsection

A, even though the Texas crime did not require as an element

that the perpetrator have physical contact with the child

victim. 22 I. & N. Dec. at 991-92. Addressing the undefined,

generic federal crime of “sexual abuse of a minor” found in

Subsection A, the BIA observed that unlike other subsections of

the aggravated felony statute, Congress did not cite in

Subsection A any federal criminal statute defining “sexual

abuse.” Id. at 994-95. Thus, the BIA concluded that Congress

did not intend that the generic federal crime of “sexual abuse

of a minor” be limited to the federal statutes that criminalize

“sexual abuse” and “sexual abuse of a minor.” Id. at 995-96

(citing 18 U.S.C. §§ 2242, 2243). Those statutes limit “sexual

abuse” to acts involving physical contact with specific body

parts of the victim. Id.; see 18 U.S.C. § 2246(2). The BIA

explained that because “states categorize and define sex crimes

against children in many different ways,” the definitions of the

federal offenses in Sections 2242, 2243, and 2246 were “too

14

restrictive to encompass the numerous state crimes that can be

viewed as sexual abuse and the diverse types of conduct that

would fit within the term as it commonly is used.” 22 I. & N.

Dec. at 996.

The BIA also discussed in Rodriguez-Rodriguez a statute

providing procedural protections for child victims and

witnesses, 18 U.S.C. § 3509(a)(8). The BIA observed that this

statute defines “sexual abuse” more broadly as “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.” Id. at 995 (quoting 18 U.S.C. § 3509(a)(8)).

Three of our sister circuits have concluded that the BIA,

in its discussion of Section 3509(a)(8) in Rodriguez-Rodriguez,

adopted that statute as its definition of “sexual abuse” for

purposes of determining whether a state offense qualifies as

“sexual abuse of a minor” under Subsection A. See Mugalli v.

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

Rodriguez-Rodriguez as adopting a definition applicable

nationwide); Restrepo v. Attorney Gen., 617 F.3d 787, 792, 795-

96 (3d Cir. 2010) (deferring under Chevron to the BIA’s

“definition” in Rodriguez-Rodriguez by reference to § 3509(a));

see also Velasco-Giron v. Holder, 773 F.3d 774, 776 (7th Cir.

15

2014), cert. denied sub nom. Velasco-Giron v. Lynch, 2015 U.S.

LEXIS 3016 (May 4, 2015) (explaining that the Seventh Circuit

repeatedly has applied Chevron deference to the BIA’s

“reasonable approach” in Rodriguez-Rodriguez). Respectfully, we

disagree with this conclusion reached by our sister circuits.

Although the BIA recognized that the broad definition in

Section 3509(a)(8) is consistent with the common understanding

of “sexual abuse,” the BIA expressly stated that it was “not

adopting [that] statute as a definitive standard or definition”

for purposes of application in Subsection A. Rodriguez-

Rodriguez, 22 I. & N. Dec. at 996 (emphasis added). Instead,

the BIA “invoke[d] [the definition in Section 3509(a)(8)] as a

guide in identifying the types of crimes [it] would consider to

be sexual abuse of a minor.” Id. at 996 (emphasis added).

We therefore conclude that the BIA did not adopt in

Rodriguez-Rodriguez a particular definition of the generic

federal crime of “sexual abuse of a minor” for application of

Subsection A. We observe that the Ninth Circuit drew a similar

distinction in declining to defer to Rodriguez-Rodriguez, by

focusing on the BIA’s adoption of an “advisory guideline” rather

than a “uniform definition” of “sexual abuse of a minor.”

Estrada-Espinoza, 546 F.3d at 1157.

Using Section 3509(a)(8) as a “guide,” the BIA held in

Rodriguez-Rodriguez that the crime of “sexual abuse of a minor”

16

in Subsection A was broad enough to encompass the Texas statute

of “indecency with a child by exposure,” because the generic

federal offense does not require as an element that the

perpetrator have physical contact with the victim. 22 I. & N.

Dec. at 996. Beyond this limited holding, however, the BIA did

not provide direction regarding the elements of the generic

federal crime of “sexual abuse of a minor.” See Estrada-

Espinoza, 546 F.3d at 1157-58 (explaining that Rodriguez-

Rodriguez did not offer a particularized meaning of the generic

offense necessary to perform a Taylor analysis).

The methodology employed in Rodriguez-Rodriguez stands in

stark contrast with the BIA’s approach in Castillo, in which the

Board provided a fixed definition of the generic federal crime

of “theft offense” in 8 U.S.C. § 1101(a)(43)(G), 6 another

removable offense listed in the aggravated felony statute. See

Castillo, 776 F.3d at 266-67 (describing the BIA’s definition of

“theft offense” articulated in In re V-Z-S-, 22 I. & N. Dec.

1338 (B.I.A. 2000) and refined in In re Garcia-Madruga, 24 I. &

N. Dec. 436 (B.I.A. 2008)). Based on the BIA’s interpretation

of the generic crime of “theft offense” and the Board’s adoption

of a definition with distinct elements, reviewing courts are

6

The aggravated felony statute lists as a removable offense

in subsection (a)(43)(G): “a theft offense (including receipt of

stolen property) or burglary offense for which the term of

imprisonment is at least one year.”

17

able to apply that definition to determine whether a particular

state offense is encompassed within the generic federal crime.

See id. at 270 (holding that Virginia statutory crime of

unauthorized use of a vehicle did not categorically match

definition of “theft offense”); see also Omargharib v. Holder,

775 F.3d 192, 197 & n.9 (4th Cir. 2014) (concluding that

Virginia statutory crime of larceny did not categorically match

definition of “theft offense”); Almeida v. Holder, 588 F.3d 778,

789 (2d Cir. 2009) (holding that conviction for second-degree

larceny in Connecticut fell within definition of “theft

offense”).

Because the BIA did not supply a definition of the crime of

“sexual abuse of a minor” in Rodriguez-Rodriguez, the portion of

that opinion subject to Chevron deference is limited to the

conclusion: (1) that the generic federal offense does not

require as an element that the perpetrator have physical contact

with the victim; and (2) that the Texas statute of “indecency

with a child by exposure” falls within Subsection A. See

Rodriguez-Rodriguez, 22 I. & N. Dec. at 996; see also Aguirre-

Aguirre, 526 U.S. at 424-25 (holding that BIA’s interpretation

of a term in the INA warrants Chevron deference when BIA “gives

ambiguous statutory terms concrete meaning through a process of

case-by-case adjudication”) (citation and internal quotation

marks omitted).

18

iii.

We therefore turn to consider the BIA’s decision that Amos

is subject to removal based on his violation of the former

Maryland statute. Because the decision is not afforded

precedential weight, we apply the principles of deference

articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944).

See Martinez, 740 F.3d at 909-10. Under the holding in

Skidmore, we may defer to the agency’s opinion, based on the

agency’s “body of experience and informed judgment.” 323 U.S.

at 140. However, the degree of deference that we accord depends

on our consideration of the persuasiveness of the BIA’s analysis

as demonstrated by its thoroughness, validity of reasoning, and

consistency with other decisions. Id.

As we have explained, in deciding whether an underlying

state conviction falls within the meaning of a generic federal

offense, we typically would compare the elements of the generic

federal offense of “sexual abuse of a minor” with the statutory

elements of the former Maryland crime of sexual abuse of a

child. However, because the BIA has not defined the generic

federal offense, either in Rodriguez-Rodriguez or in the present

case, such an analysis is impossible to perform in the typical

manner. See Estrada-Espinoza, 546 F.3d at 1158 (explaining that

“[w]ithout defined elements, a comparison of the state statute

with the federally-defined generic offense is not possible”).

19

In concluding that Amos’s Maryland conviction qualifies as

an aggravated felony under Subsection A, the BIA opined that the

“least culpable conduct” under the sexual abuse portion of the

former Maryland statute, namely, the “failure to act to prevent

sexual abuse” of a child when “one has a duty to do so,” is

encompassed within the generic federal crime of “sexual abuse of

a minor.” 7 See Degren, 722 A.2d at 899. To support its

conclusion, the Board cited the holding of Rodriguez-Rodriguez

that the generic federal offense does not require that the

defendant make physical contact with the child victim. The

Board also relied on the discussion of Section 3509(a)(8) in

Rodriguez-Rodriguez, and its characterization of the term

“sexual abuse” as covering a “broad range” of sexual misconduct.

We are not persuaded by the BIA’s analysis. Although the

BIA in Rodriguez-Rodriguez held that the offense of “sexual

abuse of a minor” under the INA does not require physical

7

Although the former Maryland crime of “child abuse” is

quite broad and included facially divisible crimes involving

both physical abuse or sexual abuse, only the sex abuse portion

of that statute potentially qualifies as a removable offense

under Subsection A. Because we ultimately conclude that the

former Maryland crime of sexual abuse of a child does not

qualify as “sexual abuse of a minor” under Subsection A, we need

not consult Amos’s underlying conviction record to determine

which portion of the facially divisible statute formed the basis

of his conviction. See Cabrera-Umanzor, 728 F.3d at 352 (for

application of the modified categorical approach, which requires

consultation of the underlying record, “one of the categories

into which the statute may be divided” must constitute, “by its

elements,” the generic federal offense (emphasis omitted)).

20

contact with the victim, and such contact also is not required

under the relevant portion of the Maryland statute, see Walker

v. State, 69 A.3d 1066, 1085-86 (Md. 2013) (discussing current

versions of the statute), that conclusion does not resolve the

issue issue before us. We still are faced with the question

whether the failure to act to prevent sexual abuse, the least

culpable conduct under the relevant portion of the former

Maryland statute, is encompassed within the offense of “sexual

abuse of a minor” for purposes of subsection A.

The BIA’s reference in this case to Section 3509(a)(8)

likewise offers no assistance in resolving the question before

us. The BIA merely noted that, in Rodriguez-Rodriguez, the

Board stated that Section 3509(a)(8) defined the term “sexual

abuse” as including “a broad range of maltreatment of a sexual

nature.” That assessment, however, does not clarify the scope

of the generic federal crime, or explain why the conduct of

failing to act to prevent sexual abuse is included within that

undefined scope.

As set forth above, Section 3509(a)(8) describes “sexual

abuse” as 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.” (emphasis

21

added). This “guide” cited by the BIA describes affirmative

acts by a perpetrator acting as a principal in the commission of

acts of sexual abuse, as well as affirmative acts by one who is

“assisting” another in the commission of acts of sexual abuse.

Even if the generic federal offense of “sexual abuse of a minor”

encompasses all forms of “assisting” another in committing

sexual abuse, the former Maryland statute applies to conduct

beyond the affirmative act of providing such assistance. In

Degren, the Court of Appeals of Maryland emphasized that sexual

abuse includes both “the affirmative acts of watching and

failing to intervene” in sexual abuse and the “omission or

failure to act when a child is being sexually abused.” 722 A.2d

at 899. Thus, contrary to the BIA’s analysis, the “guide”

provided by Section 3509(a)(8) does not support a conclusion

that the failure to act to prevent child abuse, the least

culpable conduct under the former Maryland statute, necessarily

is encompassed within the generic offense of “sexual abuse of a

minor” in Subsection A.

Accordingly, we are not persuaded by the BIA’s analysis or

its conclusion that the term “sexual abuse of a minor” under

Subsection A necessarily encompasses the failure to act to

prevent sexual abuse, the least culpable conduct under the

former Maryland statute. We therefore hold that the BIA erred

as a matter of law in concluding that Amos’s conviction of child

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abuse under the former Maryland statute qualifies as an

aggravated felony under Subsection A. See Castillo, 776 F.3d at

267.

III.

For these reasons, we grant Amos’s consolidated petitions

for review, and we vacate the order for his removal.

PETITIONS FOR REVIEW GRANTED

AND ORDER OF REMOVAL VACATED

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