Khaimraj Singh v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

9-17-2004

Khaimraj Singh v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1532

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6th & Chestnut Streets

PRECEDENTIAL 656 Public Ledger Building

Philadelphia, PA 19106

IN THE UNITED STATES COURT OF Attorneys for Petitioner

APPEALS

FOR THE THIRD CIRCUIT

______________________ PETER D. KEISLER

Assistant Attorney General, Civil

NO. 03-1532 Division

______________________ DAVID V. BERNAL

Assistant Director

ANTHONY P. NICASTRO (ARGUED)

KHAIMRAJ SINGH Trial Attorney

CHRISTOPHER C. FULLER

Petitioner LYLE D. JENTZER

United States Department of Justice

v. Office of Immigration Litigation

Ben Franklin Station

JOHN ASHCROFT, ATTORNEY P.O. Box 878

GENERAL Washington, DC 20044

OF THE UNITED STATES OF

AMERICA Attorneys for Respondent

______________________

________________________

On Petition for Review of Orders of the OPINION OF THE COURT

Board of Immigration Appeals ________________________

(Board No. A41-930-720)

______________________

BECKER, Circuit Judge.

Khaimraj Singh, a Guyanan national,

Argued June 28, 2004 petitions for review of a final order of

removal grounded upon the determination

Before: AMBRO, BECKER and that he is an aggravated felon on account

GREENBERG, Circuit Judges of his conviction for touching the breast of

his cousin, who was under sixteen years of

(Filed September17, 2004) age. The offense of conviction was 11

Del. C. § 767, “Unlawful sexual contact in

JAMES J. ORLOW the third degree,” which provides:

DAVID KAPLAN (ARGUED)

A person is guilty of unlawful

Orlow & Orlow

sexual contact in the third degree III.B. As will appear, a pattern emerges,

when the person has sexual contact causing us to conclude that, while the

with another person or causes the formal categorical approach of Taylor

victim to have sexual contact with presumptively applies in assessing whether

the person or a third person and the an alien has been convicted of an

person knows that the contact is aggravated felony, in some cases the

either offensive to the victim or language of the particular subsection of 8

occurs without the victim’s U.S.C. § 1101(a)(43) at issue will invite

consent. inquiry into the underlying facts of the

case, and in some cases the disjunctive

The question presented on this petition

phrasing of the statute of conviction will

for review—whether Singh has been

similarly invite inquiry into the specifics of

convicted of the aggravated felony of

the conviction. But in this case, neither 8

“sexual abuse of a minor,” 8 U.S.C.

U.S.C. § 1101(a)(43)(A) nor 11 Del. C.

§ 1101(a)(43)(A)—turns on whether we

§ 767 invite inquiry into the facts

must apply the so-called “formal

underlying Singh’s conviction. Therefore,

categorical approach” announced in Taylor

because Taylor’s formal categorical

v. United States, 495 U.S. 575 (1990).

approach applies to Singh’s case, we will

Under that approach, an adjudicator “must

grant the petition for review.

look only to the statutory definitions of the

prior offenses,” and may not “consider

other evidence concerning the defendant’s

I. Factual Background and Proceedings

prior crimes,” including, “the particular

Before the Immigration Judge and Board

facts underlying [a] conviction[].” Id. at

of Immigration Appeals

600. If we apply the formal categorical

approach, Singh has not been convicted of Singh is a native and citizen of Guyana.

the aggravated felony of sexual abuse of a He was admitted to the United States in

minor because § 767 does not contain an June 1988 as an immigrant. About ten

element specifying the age of the victim. years later, he touched the breast of his

If we do not apply the formal categorical cousin, who was under the age of sixteen.

approach, Singh has been convicted of the For this, the State of Delaware charged

aggravated felony of sexual abuse of a him under 11 Del. C. § 768, “Unlawful

minor because the victim of his sex sexual contact in the second degree.”

offense was, indeed, a minor. Apparently as part of a plea agreement

with the state prosecutor, Singh pled guilty

Our jurisprudence in the aggravated

to the lesser included offense of 11 Del. C.

felony area— twelve cases in all—is not a

§ 767, “Unlawful sexual contact in the

seamless web. In order to resolve the

third degree.” On May 19, 1998, the

appeal we have found it necessary to

Delaware Superior Court imposed a one-

analyze and synthesize this body of case

year suspended sentence.

law, and we do so at length, see infra Part

2

This conviction, the government

asserts, renders Singh an aggravated felon

under 8 U.S.C. § 1101(a)(43)(A), which

property derived from

provides that “sexual abuse of a minor” is

specific unlawful activity)

an aggravated felony. 1 Under 8

if the amount of the funds

exceeded $10,000;

(E) an offense described

1

“Sexual abuse of a minor” is but one in–

of the dozens of aggravated felonies (i) section 842(h) or (i) of

catalogued in the twenty-one subsections Title 18, or section 844(d),

of 8 U.S.C. § 1101(a)(43). Because the (e), (f), (g), (h), or (i) of

discussion that follows in this opinion that title (relating to

draws on many of those subsections, we explosive materials

rescribe the statute in full for the offenses);

convenience of the reader: (ii) section 922(g)(1), (2),

(3), (4), or (5), (j), (n), (o),

The term “aggravated felony” means— (p), or (r) or 924(b) or (h)

(A) murder, rape, or sexual of Title 18 (relating to

abuse of a minor; firearms offenses); or

(B) illicit trafficking in a (iii) section 5861 of Title

controlled substance (as 26 (relating to firearms

defined in section 802 of offenses);

Title 21), including a drug (F) a crime of violence (as

trafficking crime (as defined in section 16 of

defined in section 924(c) of Title 18, but not including

Title 18); a purely political offense)

(C) illicit trafficking in for which the term of

firearms or destructive imprisonment at least one

devices (as defined in year;

section 921 of Title 18) or (G) a theft offense

in explosive materials (as (including receipt of stolen

defined in section 841(c) of property) or burglary

that title); offense for which the term

(D) an offense described in of imprisonment at least

section 1956 of Title 18 one year;

(relating to laundering of (H) an offense described in

monetary instruments) or section 875, 876, 877, or

section 1957 of that title 1202 of Title 18 (relating

(relating to engaging in to the demand for or

monetary transactions in receipt of ransom);

3

(I) an offense described in in—

section 2251, 2251A, or (i) section 793 (relating to

2252 of Title 18 (relating gathering or transmitting

to child pornography); national defense

(J) an offense described in information), 798 (relating

section 1962 of Title 18 to disclosure of classified

(relating to racketeer information), 2153

influenced corrupt (relating to sabotage) or

organizations), or an 2381 or 2382 (relating to

offense described in treason) of Title 18;

section 1084 (if it is a (ii) section 421 of Title 50

second or subsequent (relating to protecting the

offense) or 1955 of that identity of undercover

title (relating to gambling intelligence agents); or

offenses), for which a (iii) section 421 of Title 50

sentence of one year (relating to protecting the

imprisonment or more may identity of undercover

be imposed; agents);

(K) an offense that— (M) an offense that—

(i) relates to the owning, (i) involves fraud or deceit

controlling, managing, or in which the loss to the

supervising of a victim or victims exceeds

prostitution business; $10,000; or

(ii) is described in section (ii) is described in section

2421, 2422, or 2423 of 7201 of Title 26 (relating

Title 18 (relating to to tax evasion) in which the

transportation for the revenue loss to the

purpose of prostitution) if Government exceeds

committed for commercial $10,000;

advantage; or (N) an offense described in

(iii) is described in any of paragraph (1)(A) or (2) of

sections 1581-1585 or section 1324(a) of this title

1588-1591 of Title 18 (relating to alien

(relating to peonage, smuggling), except in the

slavery, involuntary case of a first offense for

servitude, and trafficking which the alien has

in persons); affirmatively shown that

(L) an offense described the alien committed the

4

offense for the (and no other individual) to

purpose of assisting, violate a provision of this

abetting, or aiding chapter;

only the alien's (Q) an offense relating to a

spouse, child, or failure to appear by a

parent (and no other defendant for service of

individual) to sentence if the underlying

violate a provision offense is punishable by

of this chapter imprisonment for a term of

(O) an offense described in 5 years or more;

section 1325(a) or 1326 of (R) an offense relating to

this title committed by an commercial bribery,

alien who was previously counterfeiting, forgery, or

deported on the basis of a trafficking in vehicles the

conviction for an offense identification numbers of

described in another which have been altered

subparagraph of this for which the term of

paragraph; imprisonment is at least

(P) an offense (i) which one year;

either is falsely making, (S) an offense relating to

forging, counterfeiting, obstruction of justice,

mutilating, or altering a perjury or subornation of

passport or instrument in perjury, or bribery of a

violation of section 1543 of witness, for which the term

Title 18 or is described in of imprisonment is at least

section 1546(a) of such one year;

title (relating to document (T) an offense relating to a

fraud) and (ii) for which failure to appear before a

the term of imprisonment is court pursuant to a court

at least 12 months, except order to answer to or

in the case of a first offense dispose of a charge of a

for which the alien has felony for which a sentence

affirmatively shown that of 2 years' imprisonment or

the alien committed the more may be imposed; and

offense for the purpose of (U) an attempt or

assisting, abetting, or conspiracy to commit an

aiding only the alien's offense described in this

spouse, child, or parent paragraph.

5

U.S.C. § 1227(a)(2)(A)(iii), an alien designated in the statute, has indeed

convicted of an aggravated felony is . . . engaged in sexual abuse of a

removable. The Immigration Judge (IJ) minor as defined in Title 18.

agreed with the government’s position,

The Board of Immigration Appeals

noting that “the sentencing order of the

(BIA) affirmed the IJ’s decision without

[Delaware] Court reflects clearly, under

opinion. See 8 C.F.R. § 1003.1(e)(4).2

special conditions of probation, ‘note:

Under 8 U.S.C. § 1252(a)(2)(C) and our

victim is under 16 years of age.’” Citing

decision in Drakes v. Zimski, 240 F.3d

18 U.S.C. § 3509(2) (which defines the

246, 247 (3d Cir. 2001), we have

age of majority as 18), the IJ explained

jurisdiction to consider our jurisdiction

that “the victim was under 16 years of age

over this timely petition for review of a

and, consequently, would be classified as

final decision of the BIA.

a minor.” The IJ then looked to 18 U.S.C.

§ 3509(8) for the definition of “sexual

abuse,” which includes “sexually explicit

II. Standard of Review

conduct”:

This case turns on a question of

The term sexually explicit conduct

statutory interpretation—specifically, the

includes touching of one’s breast

meaning and application of the aggravated

under [18 U.S.C. § 3509(9)(A)].

felony of “sexual abuse of a minor.” As

Consequently, the Court finds that

we noted in Patel v. Ashcroft, 294 F.3d

the respondent has engaged in

sexually explicit conduct of a child.

Likewise, the Court would find that

2

the respondent’s conviction, Singh also challenges the BIA’s

notwithstanding the fact that the procedure for affirmance without

age of the victim is not specifically opinion. We approved these

streamlining regulations in Dia v.

Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en

The term applies to an offense described banc), which was decided after Singh

in this paragraph whether in violation of filed his opening brief. Although Dia

Federal or State law and applies to such may not dispose of Singh’s

an offense in violation of the law of a nondelegation and judicial economy

foreign country for which the term of arguments against the streamlining

imprisonment was completed within the regulations, those arguments would be

previous 15 years. Notwithstanding any better addressed to the Court en banc. At

other provision of law (including any all events, our resolution of this case on

effective date), the term applies alternative grounds avoids the need to

regardless of whether the conviction was confront the novel questions raised in

entered before, on, or after September Singh’s challenge to the streamlining

30, 1996. regulations.

6

465, 467 (3d Cir. 2002), “there is some Board’s interpretation, so long as it

confusion surrounding the proper standard is reasonable. Id.

of review in cases such as this.” Patel,

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

which was an aggravated felony case,

2004).

discusses at length the role of Chevron

deference in cases interpreting the Canvassing the dozen aggravated

Immigration and Nationality Act (INA) felony cases decided by this Court, one

generally, and the aggravated felony indisputable and surprising pattern

statute of 8 U.S.C. § 1101(a)(43) in emerges: We have never affirmatively

particular. In our most recent aggravated deferred to an interpretation by the BIA (or

felony case, we described the scope of our an IJ) of 8 U.S.C. § 1101(a)(43), i.e., of

Chevron deference thus: whether the crime at issue constitutes an

aggravated felony. Many times we have

“The first step in interpreting a

not even discussed Chevron deference to

statute is to determine ‘whether the

the BIA, irrespective of whether we

language at issue has a plain and

ultimately agreed or disagreed with the

unambiguous meaning with regard

Board. See Munroe v. Ashcroft, 353 F.3d

to the particular dispute in the

225 (3d Cir. 2003); Wilson v. Ashcroft,

case.’” [Valansi v. Ashcroft, 278

350 F.3d 377 (3d Cir. 2003); Bovkun v.

F.3d 203, 209 (3d Cir. 2002)]

Ashcroft, 283 F.3d 166 (3d Cir. 2002);

(quoting Marshak v. Treadwell,

United States v. Graham, 169 F.3d 787 (3d

240 F.3d 184, 192 (3d Cir. 2001)).

Cir. 1999). We also have suggested that

If the statutory meaning is clear,

we conduct de novo review because the

our inquiry is at an end. Id. If the

question goes to our jurisdiction. See

statutory meaning is not clear, we

Nugent v. Ashcroft, 367 F.3d 162, 165 (3d

must try to discern Congress’ intent

Cir. 2004); Valansi, 278 F.3d at 207-08

using the ordinary tools of statutory

(citing cases). Twice we have declined to

construction. See INS v.

reach the question of deference because

Cardoza-Fonseca, 480 U.S. 421,

we concluded that our result would be the

447-48 (1987). “If, by employing

same on deferential review as it would on

traditional tools of statutory

plenary review. See Patel, 294 F.3d at

construction, we determine that

468; Drakes v. Zimski, 240 F.3d 246, 251

Congress’ intent is clear, that is the

(3d Cir. 2001). In two cases, we

end of the matter.” Valansi, 278

acknowledged that we must defer to the

F.3d at 208 (quoting Bell v. Reno,

BIA if the statute’s meaning is ambiguous,

218 F.3d 86, 90 (2d Cir. 2000)). If

but both times we held that the BIA’s

we are unable to discern Congress’

interpretation conflicted with the statute’s

intent using the normal tools of

plain meaning. See Lee, 368 F.3d at 224-

statutory construction, we will

25; Valansi, 278 F.3d at 208. In yet

generally give deference to the

another case we affirmatively held that the

7

BIA’s interpretation of 18 U.S.C. § 16, expertise in a meaningful way’ but

which is incorporated by reference in the presents instead ‘a pure question of

aggravated felony statute, 8 U.S.C. statutory construction for the courts to

§ 1101(a)(43)(F), was not subject to the decide.’” (quoting Sandoval v. Reno, 166

general principles of Chevron, but that, F.3d 225, 239-40 (3d Cir. 1999) (quoting

even if it was, the specific interpretation at INS v. Cardoza-Fonseca, 480 U.S. 421,

issue was unreasonable and therefore not 446 (1987))) (alteration in original)).

entitled to deference. See Francis v. Reno, Second, we have been mindful, as in

269 F.3d 162, 168 & n.8 (3d Cir. 2001). Nugent, 367 F.3d at 165, and Valansi, 278

Finally, two decisions appear to be more F.3d at 207-08, that although the statute is

deferential to the BIA. In Gerbier v. part of Title 8, and not Title 28, of the

Holmes, 280 F.3d 297, 310 (3d Cir. 2002), United States Code, it nonetheless controls

we found the BIA’s interpretation o u r j u r i s d ic t i o n (via 8 U.S . C .

“persuasive” (hardly a strong general § 1252(a)(2)(C)) and we normally consider

endorsement), while in Steele v. Blackman, jurisdictional matters de novo.

236 F.3d 130, 133 (3d Cir. 2001), we

Moreover, here the IJ offered no reason

stated that “if a statute administered by the

for his decision not to apply Taylor’s

INS is ambiguous, and the BIA has

categorical approach; the BIA, by

provided a reasonable interpretation of its

affirming without opinion, gave no

language, we must simply ask whether the

considered and authoritative agency-wide

BIA’s construction is a permissible one.”

interpretation of the statute; and now on

Even in Steele, however, we looked more

petition for review, the government’s

closely into the BIA’s interpretation,

entire position on deference consists of a

finding it “troublesome,” bu t we

single citation to an admittedly vague

“assume[d] its validity” because even the

comment from this Court in Patel, 294

BIA’s own interpretation of the statute did

F.3d at 467 (“[S]ome deference is still

not support its disposition of the case. 236

required under Chevron, even though we

F.3d at 136 & n.5.

are reviewing a purely legal question such

Why then have we never found it as the BIA’s interpretation of a criminal

necessary and appropriate to defer to the statute.”). Under all these circumstances,

BIA’s or IJ’s interpretation of 8 U.S.C. we conclude that the IJ’s summary

§ 1101(a)(43)? First, as we explained in application of § 1101(a)(43)(A)—it can

Francis, the interpretation and exposition hardly be described as a full-blown

of criminal law is a task outside the BIA’s reasoned interpretation— is not entitled to

sphere of special competence. See 269 deference. As we have done in previous

F.3d at 168; see also Drakes, 240 F.3d at cases, however, we will here expressly

250 (“Chevron deference is not required reserve decision on whether some BIA

where the interpretation of a particular interpretations of § 1101(a)(43) are

statute does not ‘implicate[] agency entitled to deference.

8

III. Discussion 601, the Taylor Court adopted the “formal

categorical approach.”

Some of our cases interpreting 8 U.S.C.

§ 1101(a)(43) have employed the rule of The facts of Taylor provide an apt

Taylor, described there as the “formal illustration of the principle at work: Taylor

categorical approach,” 495 U.S. at 600. had been twice convicted of second degree

See, e.g., Francis, 269 F.3d at 171-72. burglary in Missouri. Under Missouri law,

Taylor addressed the meaning and second degree burglary encompassed

application of the term “burglary” in 18 several discrete sets of statutory elements.

U.S.C. § 924(e), which imposes enhanced As the Court explained, “All seven

sentences on defendants convicted under offenses required entry into a structure, but

the unlawful-possession-of-a-firearm they varied as to the type of structure and

statute, 18 U.S.C. § 922(g), when the the means of entry involved.” Id. at 578

defendant has three prior convictions for n.1. Compared with the definition of

specified offenses, including “burglary.” “generic burglary” adopted by the

Taylor’s analysis can be readily imported Court—“convict[ion] of any crime,

here, because 8 U.S.C. § 1101(a)(43) is regardless of its exact definition or label,

similar to 18 U.S.C. § 924(e) in that it too having the basic elements of unlawful or

enumerates offenses, conviction of which unprivileged entry into, or remaining in, a

places an alien in the category of building or structure, with intent to commit

“aggravated felon.” Taylor put the a crime,” id. at 599—not all variants of

“general issue” in interpreting this sort of Missouri second degree burglary qualified

statute as follows: under the federal sentencing enhancement

statute. Since the formal categorical

whether the sentencing court in

approach does not permit looking beyond

applying § 924(e) must look only to

the literal elements of the statute (i.e., to

the statutory definitions of the prior

the facts supporting the convictions), the

offenses, or whether the court may

Court could not say that Taylor had been

consider other evidence concerning

p r e v i o u s l y c o n v i c t ed o f c ri m es

the defendant’s prior crimes. The

encompassing the elements of generic

Courts of Appeals uniformly have

burglary. See id. at 602. Accordingly, the

held that § 924(e) mandates a

Court remanded for further development

formal categorical approach,

on the question of “which of [the M issouri

looking only to the statutory

second degree burglary] statutes were the

definitions of the prior offenses,

bases for Taylor’s prior convictions.” Id.

and not to the particular facts

The inquiry was limited to the statute of

underlying those convictions.

conviction, however, as the formal

495 U.S. at 600. Citing “the practical categorical approach “generally requires

difficulties and potential unfairness [to a the trial court to look only to the fact of

defendant] of a factual approach,” id. at conviction and the statutory definition of

9

the prior offense.” Id. The Taylor Court unnecessary for our purposes to give a

also acknowledged that, under limited comprehensive definition of “sexual abuse

circumstances, resort to the charging of a minor,” and we reserve decision on

instrument may be permissible: “[The that question. It is sufficient to say that

formal categorical approach] may permit “sexual abuse of a minor” entails some

the sentencing court to go beyond the mere conduct involving a minor, i.e., someone

fact of conviction in a narrow range of under the age of eighteen.

cases where a jury was actually required to

This is enough to defeat the

find all the [necessary] elements.” Id.

government’s argument, for § 767 says

The questions presented in this case are nothing whatsoever about the age of the

readily apparent: Does Taylor’s formal victim. In full, the statute under which

categorical approach apply to “sexual Singh was convicted reads:

abuse of a minor” under 8 U.S.C.

A person is guilty of unlawful

§ 1101(a)(43)(A), and if it does, does a

sexual contact in the third degree

conviction under 11 Del. C. § 767

when the person has sexual contact

nonetheless qualify as a conviction for

with another person or causes the

sexual abuse of a minor? We find it more

victim to have sexual contact with

efficient to address the second question

the person or a third person and the

first.

person knows that the contact is

A. Under the Formal Categorical either offensive to the victim or

Approach of Taylor, Does a Conviction occurs without the victim’s

Under consent.

11 Del. C. § 767 Qualify as a Conviction Since a finding of the age of the victim is

for “Sexual Abuse of a Minor”? not required for conviction, § 767 does not

appear to be an aggravated felony (or at

The government first argues that, even

least not the aggravated felony of sexual

under the formal categorical approach, a

abuse of a minor).

conviction under 11 Del. C. § 767 is a

conviction for sexual abuse of a minor. To In the face of the literal and

evaluate this argument, we follow the unambiguous text of § 767, the

Supreme Court’s two-step approach in government argues that the statute

Taylor, where it first construed the term nonetheless criminalizes sexual abuse of a

“burglary” in the federal statute, 495 U.S. minor. Of course it is irrelevant that

at 590-99, and then compared the elements sexually abusing a minor may be sufficient

of the Missouri statutes to the federal for conviction under the statute; what

definition, id. at 602. The IJ looked to 18 matters is whether such conduct is

U.S.C. § 3509(2), (8), and (9) to define necessary for such a conviction. The

“sexual abuse of a minor.” While we have government seems to argue that the overall

no quarrel with this approach, it is statutory scheme in Delaware establishes

10

that sexual abuse of a minor is necessary statutory scheme. For example, 11 Del. C.

for a conviction under § 767. Even §§ 767-773 are the gamut of traditional sex

assuming that appeals to statutes other offenses under Delaware law, from

than the statute of conviction are within misdemeanor sexual assault to first degree

the bounds of the formal categorical rape. Adopting the government’s

approach, we still cannot agree with the argument would imply not only that § 767

government’s position. is an offense against a child, but also that

§§ 768-773 are as well. This would have

10 Del. C. § 922(a)(19) provides the

the astonishing result that all sex offenses

Delaware Family Court with exclusive

in Delaware (as Delaware does not define

original crimin al jurisdic tion over

any general sex offenses outside this list)

“unlawful sexual conduct in the third

require that the victim be a child. These

degree against a child under 11 Del. C.

problems only reinforce our conclusion

§ 767.” Similarly, 11 Del. C.

from the plain meaning of the statute: 11

§ 1112(b)(4)(A) defines “sexual offender”

Del. C. § 767 does not include as an

as a person who has been convicted of

element that the victim be a minor, and

“any sexual offense upon a child under 16

accordingly, under the formal categorical

years of age under § 767, § 768, § 769,

approach of Taylor, Singh does not stand

§ 770, § 771, § 772, § 773 . . . .” The

convicted of sexual abuse of a minor.

government would have us read these

provisions as definitions of § 767. We do B. Does the Formal Categorical

not agree. There are at least two problems Approach of Taylor Apply to the

with the government’s approach. First, Aggravated Felony of “Sexual Abuse of

“against a child” and “upon a child,” in 10 a Minor”?

Del. C. § 922(a)(19) and 11 Del. C.

Because the IJ’s decision cannot stand

§ 1112(b)(4)(A), respectively, are better

if we apply Taylor’s formal categorical

read not as definitions of Del. Code Ann.

approach, we mu st turn to the

tit. 11, § 767, but rather as qualifications or

government’s fallback argument that the

limitations on the§ 767 convictions that

formal categorical approach does not apply

are intended to be within the scope of the

to “sexual abuse of a minor” under 8

jurisdictional and sex offender statutes.

U.S.C. § 1101(a)(43)(A ). If the

Unless these phrases are read as qualifiers,

government is free from the strictures of

they are superfluous—why not, in

the formal categorical approach, we would

§ 1112(b)(4)(A), simply omit “upon a

simply review the IJ’s decision under the

child under 16 years of age” if the statutes

deferential substantial evidence standard,

referred to already incorporate such a

evaluating whether the factual record

notion?

before the IJ could fairly support the

A second and independent problem conclusion that Singh was convicted of

with the government’s proposed reading is sexual abuse of a minor. See Dia, 353

that it leads to absurdities elsewhere in the F.3d at 247-49 (describing the substantial

11

evidence standard). As the record supports categorical approach.3 Thus, in the

this conclusion—indeed, Singh concedes sections that follow, we address the other

that, as a factual matter, he was convicted nine cases, which all (explicitly or

for touching the breast of his minor implicitly) take a position on Taylor’s

cousin—we would dismiss the petition if applicability.

the formal categorical approach did not

a. Cases employing the formal

apply here. But for the reasons that

categorical approach of Taylor

follow, we conclude that the formal

categorical approach does apply. We expressly invoked and applied

Taylor’s formal categorical approach in

1. Our prior aggravated felony

Francis. There, the question presented

jurisprudence

was whether “a state misdemeanor

We have decided a dozen cases conviction for vehicular homicide is a

implicating 8 U.S.C. § 1101(a)(43), and at ‘crime of violence’ within the meaning of

times we have applied the formal 18 U.S.C. § 16,” 269 F.3d at 164, which is

categorical approach of Taylor, and at incorporated by reference in the definition

other times we have not. (In the latter of “aggravated felony,” 8 U.S .C.

instances, though we have never explicitly § 1101(a)(43)(F). We concluded that the

considered and rejected Taylor’s approach,

our decisions cannot be fairly read as

employing the formal categorical 3

Two of these cases—Lee and

approach.) The question here, then, is

Patel—turn on whether certain federal

whether sexual abuse of a minor under 8

criminal offenses are directly identified

U.S.C. § 1101(a)(43)(A) is more akin to

in 8 U.S.C. § 1101(a)(43). See Lee, 368

those provisions of 8 U.S.C. § 1101(a)(43)

F.3d at 224 (holding that 8 U.S.C.

to which we have applied the formal

§ 1101(a)(43)(M)(ii) is the exclusive

categorical approach, or to those to which

category for federal tax offenses, and

we have not. We begin with a

thus that federal tax offenses are not

comprehensive survey of this Court’s

covered by 8 U.S.C.§ 1101(a)(43)

aggravated felony jurisprudence. The

(M)(i)); Patel, 294 F.3d at 470 (holding

United States Supreme Court has not

that the reference in 8 U.S.C.

decided any case involving 8 U.S.C.

§ 1101(a)(43)(N) to “alien smuggling”

§ 1101(a)(43), so we consider only our

does not overcome the specific cross-

own cases in this survey. Three of the

reference in that section to statute

twelve cases we have decided, see supra

criminalizing alien harboring, of which

Part II, do not even implicitly involve the

petitioner had been convicted). The third

question whether to use Taylor’s formal

case, Graham, resolves a scrivener’s

error in 8 U.S.C. § 1101(a)(43)(G) and

implicates Taylor only indirectly. We

return to Graham infra Part III.B.1.c.

12

petitioner’s conviction was not a crime of continued:

violence under 18 U.S.C. § 16, and

On its face, homicide by vehicle is

therefore that he was not an aggravated

certainly not an offense that “by its

felon. Although we were able to reach this

nature, involves a substantial risk

result on an analysis of 18 U.S.C. § 16 that

that physical force against the

did not implicate Taylor, Francis, 269

person or property of another may

F.3d at 168-71, we also held in the

be used in the course of committing

alternative that, under the formal

the offense.” 18 U.S.C. § 16(b).

categorical approach, Francis’s conviction

The BIA acknowledged that § 3732

did not satisfy 18 U.S.C. § 16(b)’s

involves a range of behavior that

requirement that a crime of violence be

“may or may not” fall under

one that, “by its nature, involves a

§ 16(b).

substantial risk that physical force against

the person or property of another may be The categorical approach does “permit

used in the course of committing the the sentencing court to go beyond the mere

offense.” fact of conviction in a narrow range of

cases where a jury was actually required to

We explained that under the formal

find all the elements of [the relevant]

categorical approach,

generic [offense].” Taylor, 495 U.S. at

we must look to Pennsylvania’s 602. Here, the criminal complaint stated:

definition of homicide by vehicle. .

Southbound on Route 95 in the

. . 75 Pa. C.S.A. § 3732 provides:

vicinity of Comly Street the

Any person who unintentionally defendant unintentionally caused

causes the death of another person the death of the decedent # 1 Harry

while engaged in the violation of B. Rutter, Driver of vehicle # 1, by

any law of this Commonwealth or operating a 198 5 Chevrolet

municipal ordinance applying to the Caprice, Pa. License ADB 7268,

operation or use of a vehicle or to while his operating privilege was

the regulation of traffic except suspended, and in such a manner as

section 3731 (relating to driving to cause a eight vehicle accident

under influence of alcohol or between four cars, one van, and

controlled substance) is guilty of three tractor trailers and a near miss

homicide by veh icle, a by a tanker truck carrying 8000

misdemeanor of the first degree, gallons of gasoline, causing the

when the violation is the cause of deaths of two people and injuring a

death. third.

75 Pa. C.S.A. § 3732. (emphasis added).

Francis, 269 F.3d at 171-72. We Francis was therefore charged with the

13

“unintentional” conduct, of operating an the BIA in applying 8 U.S .C .

automobile in such a manner as to cause a § 1101(a)(43)(B), which categorizes as an

car accident resulting in two deaths. aggravated felony “illicit trafficking in a

controlled substance (as defined in section

Id. at 172 (some citations omitted).

802 of Title 21), including a drug

As Francis’s predicate “violation of trafficking crime (as defined in section

[the] law” for purposes of 75 Pa. Cons. 924(c) of Title 18).” In Steele, our first

Stat. § 3732 was driving with a suspended case to examine the hypothetical federal

license, and not something that “by its felony approach, we explained it this way:

nature, involves a substantial risk [of]

Section 924(c)(2) of Title 18

physical force,” 18 U.S.C. § 16(b), we

defines “drug trafficking crime” as

could not agree with the BIA that his

meaning “any felony punishable

offense was a crime of violence.

under the Controlled Substance

Significantly, we disagreed with the BIA’s

Act[,] . . . the Controlled Substance

conclusion that Francis’s conduct involved

Import and Export Act[s] . . . or the

a substantial risk of physical force because

Maritime Drug Law Enforcement

it was reckless, stating: “It may well have

Act . . . .” Accordingly, the BIA

been [reckless]. However, recklessness

finds within [this] category of

was not charged, and he was not convicted

aggravated felony convictions any

of an offense requiring that mens rea.”

federal conviction for a violation of

Francis, 269 F.3d at 173. In sum, the BIA

one of the specified statutes that is

reasoned from the facts supporting

a felony conviction under federal

Francis’s conv iction, but we felt

law, i.e., a conviction for an offense

constrained to grant the petition for review

punishable by imprisonment for

by applying Taylor’s formal categorical

over one year. See 18 U.S.C.

approach and confining our inquiry to the

§ 3559. M ore relevant for present

statute of conviction, illuminated by the

purposes, the BIA understands this

charging instrument.

. . . category to encompass

Three other cases—Steele, Gerbier, convictions for state offenses,

and Wilson—apply Taylor through their however characterized by the state,

use of the “hypothetical federal felony” (or

“hypothetical federal conviction”)

approach.4 This method was developed by qualifies as well. See Gerbier, 280 F.3d

at 313. In practice, “illicit trafficking in

a controlled substance” works very much

4

The hypothetical federal felony like “crime of violence” (as discussed

approach is only one “route” to supra in Francis), so we will discuss it

classification as an aggravated felony no further than to say that our decisions

under 8 U.S.C. § 1101(a)(43)(B); “illicit involving it are consistent with Taylor’s

trafficking in a controlled substance” categorical approach.

14

if those offenses would which an alien ‘could be convicted

be “punishable” under and punished’ under the cited

o n e o f t h e t h re e federal laws.” Matter of Barrett[,

specified federal statutes 20 I. & N. Dec. 171, 174 (BIA

if federally prosecuted, 1990)].

so long as the

Steele, 236 F.3d at 135-36 (some

hypoth etical federa l

alterations in original). The hypothetical

conviction would be a

federal felony approach is essentially the

felony under federal law,

formal categorical approach of Taylor, as

i.e., would be punishable

applied to a specific federal statute.

by a term of

imprisonment of over Though we did not actually approve the

one year. hypothetical federal felony approach in

Steele, we accepted it arguendo, because

This hypothetical federal

even it did not support the BIA’s

conviction approach “require[s] a

disposition—the proposed hypothetical

comparison between the elements

federal felony required a finding of an

of the [state] drug offense and [the

additional, prior drug conviction, a prior

elements of] a federal drug

conviction that, though existing in fact,

provision referenced in 18 U.S.C.

had not been proven in the course of

§ 924(c)(2) . . . .” Matter of Davis[,

Steele’s state criminal proceedings. Id. at

20 I. & N. Dec. 536, 544 (BIA

137. We thus granted Steele’s petition for

1992)]. Since the basis for the

review. A little over a year later, in

incapacities under the Immigration

Gerbier, we did adopt the BIA’s

Act is “convict[ion] of an

hypothetical federal felony approach to 8

aggravated felony,” 8 U.S.C.

U.S.C. § 1101(a)(43)(B). 280 F.3d at 308-

§ 1229b(a), the Board looks to what

11. But as in Steele, Gerbier’s status as a

t h e c o n v icting court m u st

recidivist had not been litigated or

necessarily have found to support

otherwise decided in his state criminal

the conviction and not to other

proceeding, and we therefore granted his

conduct in which the defendant

petition for review. Id. at 317.

may have engaged in connection

with the offense. Thus where, as In Wilson, 350 F.3d 377, the third case

here, the Service is relying on a in our hypothetical-federal-felony trilogy,

state misdemeanor conviction, the we again granted the petition for review.

requirements of this . . . category of There, the proposed hypothetical federal

“aggravated felony convictions” are felony— 21 U.S.C. § 841(a)(1), which is

“satisfied [only] by proving a the general federal felony criminal

conviction that includes all the prohibition on unauthorized manufacture,

elements of [a felony] offense for distribution, and possession with intent to

15

distribute of controlled analogous to a federal felony, we look to

substances—included an escape clause the elements of the statutory state offense,

making distribution of “a small amount of not to the specific facts.” Wilson, 350 F.3d

marihuana for no remuneration” a at 381. “Since the state statutory elements

misdemean or. S e e 21 U .S.C . would be satisfied by proof of either

§ 841(b)(1)(D) and (b)(4). Wilson had distribution or possession with intent to

possessed with the intent to distribute a distribute, we cannot draw the federal

small amount of marijuana, a misdemeanor analogy by presuming that the statute only

under N.J. Stat. Ann. § 2C:35-5(b)(11). 5 covers possession.” Id. at 382. Wilson

Wilson, 350 F.3d at 381. He argued to this may thus represent the zenith of our

Court that, because his state conviction did faithfulness to Taylor.

not necessarily imply that he sought

Two other cases also follow Taylor’s

remuneration for his distribution, it could

formal categorical approach— though only

not therefore be shown that his conduct

silently (in the case of Bovkun) or weakly

would have been a felony under federal

(in the case of Drakes). Although we did

controlled substance law—he might have

not cite Taylor in Bovkun, we plainly

been able to invoke the escape clause. Id.

followed the formal categorical approach.

The government countered that There, the petitioner had been convicted of

Wilson’s conviction was for possession, ma king te rr or istic thr ea ts u n d er

not distribution (though both distribution Pennsylvania law,6 and the government

and possession-with-intent were included

in New Jersey’s law, see supra note 5),

6

and that he therefore would not have been In full, 18 Pa. Cons. Stat. § 2706

eligible for the escape clause. We rejected (1998) (in effect at the time of Bovkun’s

the government’s invitation to look beyond conviction) provided:

the New Jersey statute itself, citing Steele A person is guilty of a

and Gerbier for the proposition that “in misdemeanor of the first

evaluating whether a state violation is degree if he threatens to

commit any crime of

violence with intent to

5

N.J. Stat. Ann. § 2C:35-5(a)(1) terrorize another or to

provides that it is unlawful “[t]o cause evacuation of a

manufacture, distribute or dispense, or to building, place of

possess or have under his control with assembly, or facility of

intent to manufacture, distribute or public transportation, or

dispense, a controlled dangerous otherwise to cause serious

substance or controlled substance public inconvenience, or in

analog.” N.J. Stat. Ann. § 2C:35- reckless disregard of the

5(b)(11) provides that marijuana is such risk of causing such terror

a controlled substance. or inconvenience.

16

sought to classify him as an aggravated noted above, see supra Part III.A

felon under 8 U.S.C. § 1101(a)(43)(F) (discussing Taylor’s two-step approach),

(incorporating 18 U.S.C. § 16 by Taylor requires both interpretation of the

reference), for committing “a crime of federal statute describing the offense, and

violence.” 7 Bovkun argued that “mere a comparison with the statute of criminal

public inconvenience” would not qualify conviction. Though most of our

as a crime of violence, but we rejected his aggravated felony cases have turned on the

argument because it confused the actus

reus of the offense (“threat[] to commit a

crime of violence”) and the mens rea

defraud, deceive or injure

(“with intent to . . . or reckless disregard of

another person, or knowing

. . .”). Bovkun, 283 F.3d at 170. We held

that the person is

that it was the actus reus of the state

facilitating a fraud or injury

offense that had to be aligned with the

to be perpetrated by

federal statute, and on that basis we

anyone, the person:

concluded that a Pennsylvania conviction

(1) Alters any written

for making terroristic threats was a crime

instrument of another

of violence as defined in 18 U.S.C. § 16.

person without the other

Finally, in Drakes, we considered 8 person’s authority; or

U.S.C. § 1101(a)(43)(R), which classifies (2) Makes, completes,

as an aggravated felony “an offense executes, authenticates,

relating to . . . forgery.” Though the facts issues or transfers any

were not entirely clear, the petitioner had written instrument which

been convicted of second-degree forgery purports to be the act of

under Delaware law in connection with another person, whether

providing a false name to the Delaware real or fictitious, who did

State Police during a traffic stop.8 As not authorize that act, or to

have been executed at a

time or place or in a

7

In relevant part, 18 U.S.C. § 16(a) numbered sequence other

defines a “crime of violence as “an than was in fact the case or

offense that has as an element the use, to be a copy of an original

attempted use, or threatened use of when no original existed;

physical force against the person or or

property of another.” (3) Possesses a written

instrument, knowing that it

8

In relevant part, 11 Del. C. § 861 was made, completed or

provides: altered under

(a) A person is guilty of circumstances constituting

forgery when, intending to forgery.

17

second step, Drakes concentrated more on F.3d at 226 (citing N.J. Stat. Ann. 2C:20-

the first. In Drakes, we discussed at length 4 10 ); Valansi, 278 F.3d at 210 (quoting 18

the meaning of “forgery” in 8 U.S.C.

§ 1101(a)(43)(R). See 240 F.3d at 248-50.

Upon determinin g that “Congress (1) creates or reinforces a

evidenced an intent to define forgery in its false impression, including

broadest sense,” id. at 249, it became easy false impressions as to law,

to conclude that 11 Del. C. § 861 came value, intention or other

within the wide sweep of the offenses state of mind; but

described in 8 U.S.C. § 1101(a)(43)(R), deception as to a person’s

see Drakes, 240 F.3d at 250. Thus Drakes intention to perform a

only briefly touched on Taylor’s second promise shall not be

step—the formal categorical approach as inferred from the fact alone

we have been discussing it. that he did not

subsequently perform the

b. Cases not employing the formal

promise;

categorical approach of Taylor

(2) prevents another from

We turn now to the cases in which we acquiring information

did not confine ourselves to the formal which would affect his

categorical approach of Taylor. All three judgment of a transaction;

such cases—Nugent, Munroe, and or

Valansi—concerned 8 U .S.C . (3) fails to correct a false

§ 1101(a)(43)(M)(i), which defines as an impression which the

aggravated felony an offense that deceiver previously created

“involves fraud or deceit in which the loss or reinforced, or which the

to the victim or victims exceeds $10,000.” deceiver knows to be

In all three cases, the relevant criminal influencing another to

statute did not include a “loss greater than whom he stands in a

$10,000” element. See Nugent, 367 F.3d fiduciary or confidential

at 168 n.2 (quoting 18 Pa. Cons. Stat. relationship.

§ 3922(a)9); Munroe, 252

10

In full, N.J. Stat. Ann. 2C:20-4

provides:

9

In full, 18 Pa. Cons. Stat. § 3922(a) A person is guilty of theft

provides: if he purposely obtains

A person is guilty of theft property of another by

if he intentionally obtains deception. A person

or withholds property of deceives if he purposely:

another by deception. A a. Creates or reinforces a

person deceives if he false impression, including

intentionally: false impressions as to law,

18

U.S.C. § 656 11 ).12 Yet in these cases we

expressly rested our holding on the

value, intention or

other state of mind,

and including, but

the group addressed.

not limited to, a

false impression that 11

In relevant part, 18 U.S.C. § 656

the person is provides:

soliciting or Whoever, being an officer,

collecting funds for director, agent or employee

a charitable purpose; of, or connected in any

but deception as to a capacity with any . . .

person’s intention to national bank . . .

perform a promise embezzles, abstracts,

shall not be inferred purloins or willfully

from the fact alone misapplies any of the

that he did not moneys, funds or credits of

subsequently such bank . . . shall be

perform the [fined and/or imprisoned].

promise; We also note that in Valansi’s

b. Prevents another from plea agreement, she stipulated (for

acquiring information Sentencing Guidelines purposes) only

which would affect his that the value of the embezzled funds

judgment of a transaction; “was in excess of $1,000.” Valansi, 278

or F.3d at 206.

c. Fails to correct a false

12

impression which the Although none of these statutes has

deceiver previously created an amount-of-loss element (i.e., some

or reinforced, or which the minimum threshold amount of loss that

deceiver knows to be must be met for a conviction), there are

influencing another to cognate statutes that do. See, e.g., Cal.

whom he stands in a Penal Code § 487(a) (grand theft is

fiduciary or confidential committed “[w]hen the money, labor, or

relationship. real or personal property taken is of a

The term “deceive” does value exceeding four hundred dollars

not, however, include ($400)”); Wash. Rev. Code

falsity as to matters having § 9A.56.030(1)(a) (theft in the first

no pecuniary significance, degree is theft of “[p]roperty or services

or puffing or exaggeration which exceed(s) one thousand five

by statements unlikely to hundred dollars in value other than a

deceive ordinary persons in firearm”).

19

underlying facts about the amount of loss required element. Some but not all

involved: In Nugent, 367 F.3d at 169, the convictions under 18 U.S.C. § 656

bad check at issue was in the amount of qualify as an aggravated felony

$4831.26 (and thus insufficient to support under that definition: a conviction

the aggravated felony classification); in for embezzlement with specific

Munroe, 353 F.3d at 226, several bad intent to defraud qualifies as an

checks written by the petitioner totaled in offense involving fraud or deceit,

excess of $10,000 (and thus were and thus an aggravated felony; a

sufficient to support the aggravated felony conviction with only the specific

classification). intent to injure does not.

Valansi, in which the petitioner had Valansi, 278 F.3d at 217.

embezzled over $400,000 in cash and

Under a strict reading of Taylor’s

checks in her capacity as a bank teller, 278

formal categorical approach, this would be

F.3d at 205, bears further discussion. The

the end of the story, because a conviction

monetary threshold was clearly reached in

under 18 U.S.C. § 656 does not necessarily

Valansi. See 278 F.3d at 209 (“Valansi

establish fraudulent intent any more than

does not dispute that her conviction

Singh’s conviction under 11 Del. C. § 767

s a ti s f ie s t he $ 10 ,0 0 0 m o n e t a ry

necessarily establishes sexual abuse of a

requirement.”). The case turned instead on

minor (because, after all, some but not all

whether Valansi’s crime “involve[d] fraud

convictions under 11 Del. C. § 767 involve

or deceit.” In an extensive discussion of

a minor victim). The Valansi panel went

18 U.S.C. § 656, the Court focused on the

on, however:

mens rea requirement that had been

judicially imposed on the statute: The We have cautioned that where “a

embezzler must do so “with the intent to criminal statute on its face fits the

injure or defraud the bank.” Valansi, 278 INA’s deportability classification .

F.3d 210 (citing United States v. . . [,][t]o go beyond the offense as

Schoenhut, 576 F.2d 1010, 1024 (3d Cir. charged and scrutinize the

1978) (citing United States v. Schmidt, 471 underlying facts would change our

F.2d 385 (3d Cir. 1972))). We held that inquiry from a jurisdictionalone into a full consideration

this disjunctive mens rea of the merits. Such an approach would fly

requirement—either intent to defraud or in the face of the jurisdiction limiting

intent to injure suffices— put the statute language of IIRIRA.” Drakes, 240 F.3d at

with one foo t in 8 U.S .C. 247-48. However, in this case we have

§ 1101(a)(43)(M )(i) and one foot out: determined that the criminal statute does

not fit squarely within the INA’s

The p la in meaning of

deportability classification because some,

§ 1101(a)(43)(M)(i) defines an

but not all, of the convictions under 18

aggravated felony as an offense that

U.S.C. § 656 qualify as offenses involving

has fraud or deceit as at least one

fraud or deceit. Because we are unable to

20

determine from the face of the statute Taylor’s categorical approach. Thus,

whether Valansi’s conviction is among whatever disagreements there were within

those that qualify as an aggravated felony, the panel in Valansi, all agreed that the

we must take the additional step of case required a look beyond the literal

examining the underlying facts to elements of 18 U.S.C. § 656.

determine whether Valansi pled guilty to

c. A governing principle?

an offense involving fraud or deceit.

Our survey complete, the question we

Valansi, 278 F.3d at 214 (alterations in

now pose is whether these

original). Ultimately, we concluded that

decisions—some applying Taylor, some

[i]n Valansi’s case, the specific not—can be reconciled under a governing

intent to defraud was not principle. We believe that they can. As

established. It appears that Valansi Taylor itself demonstrates, there are two

was counseled to avoid admitting to facets to these cases: the federal statute

that intent, and the plea colloquy enumerating categories of crimes on the

fails to pin down the mens rea one hand (the “enumerating statute”), and

element sufficiently for us to the criminal statute of conviction, whether

conclude that Valansi acted with federal or state, on the other (the “statute

the intent to defraud rather than to of conviction”). While Taylor’s formal

injure her employer. categorical approach presumptively

applies in comparing the two, under

Id. at 217. Accordingly, we granted the

certain conditions, both the enumerating

petition for review.

statute and the statute of conviction can

In dissent, Judge Scirica concluded that require a departure from the formal

embezzlement under 18 U.S.C. § 656 is categorical approach.

always a crime of fraud or deceit, and

In the case of the enumerating statute,

therefore had no need to analyze the

a departure from the formal categorical

i n t e n t - t o - d e f r a u d / i n te n t - to - i n j u r e

approach seems warranted when the terms

distinction. While this seems more

of the statute invite inquiry into the facts

consistent with the formal categorical

underlying the conviction at issue. The

approach of Taylor, Judge Scirica’s dissent

qualifier “in which the loss to the victim or

still relies on (1) the plea colloquy (to

victims exceeds $10,000” in 8 U.S.C.

establi sh that V alansi c om mitte d

§ 1101(a)(43)(M)(i) is the prototypical

embezzlement, and not “abstract[ion],

example—it expresses such a specificity of

purloin[ing], or . . . misappli[cation]”), and

fact that it almost begs an adjudicator to

(2) the factual record (to establish the

examine the facts at issue. This principle

fiduciary relationship between Valansi and

explains our holdings in Nugent and

her employing bank necessary to satisfy

Munroe. Another example would be an

his definition of embezzlement). Both

enumerating statute specifying crimes

steps are beyond the strict scope of

“committed within the last two years.”

21

Such a statute could not be read to cover imprisonment is at least one year,” invites

only crimes which have “within the last inquiry into the alien’s actual sentence.

two years” as an element; instead, a court See Graham, 169 F.3d at 790-91. In

would read “within the last two years” as contrast, provisions like 8 U.S.C.

a limiting provision on crimes that would § 1101(a)(43)(J), which classifies as an

otherwise qualify. aggravated felony certain racketeering and

gambling offenses “for which a sentence

In contrast, cases interpreting relatively

of one year imprisonment or more may be

unitary cate gorical c once pts— like

imposed,” seem to direct inquiry toward

“forgery” (Drakes), “burglary” (Taylor

the statutory sentencing scheme, not the

itself) or “crime of violence” (Francis and

alien’s actual sentence. See Graham, 169

Bovkun)—do not look to underlying facts

F.3d at 790-91.

because the enumerating statute does not

invite any such inquiry. Likewise, the Turning to the statute of conviction,

hypothetical federal felony trilogy (Steele, there are also cases where a look into the

Gerbier, and Wilson) asks only whether underlying facts—or at least the charging

the elements of a federal criminal statute instrument—is called for. Valansi is a

can by satisfied by reference to the actual good example of such a case: There, the

statute of conviction; this presents no statute of conviction was phrased in the

invitation to depart from Taylor’s formal disjunctive—a mens rea of either intent to

categorical approach and examine the defraud or intent to injure would suffice

underlying facts. for conviction—which, in our view, called

for an exploration of which of the

Though we have little case law on

alternative elements was the actual basis

point, the contrast we have described

for conviction. Statutes phrased in the

appears to be mirrored in the references in

disjunctive are akin to, and can be readily

8 U.S.C. § 1101(a)(43) to the duration of

converted to, statutes structured in outline

sentences. Correcting for the scrivener’s

form, with a series of numbered or letter

error in 8 U.S.C. § 1101(a)(43)(G), we

elements. See, e.g., statutes cited supra

held in Graham, 169 F.3d at 791, that that

notes 8-10. Such statutes may sometimes

section specifies theft and burglary

more clearly invite further inquiry into

offenses “for which the term of

exactly which subsection the defendant

imprisonment [imposed is] at least one

violated. The exercise of analyzing

year.” This obviously invites an inquiry

disjunctive statutes for an invitation to

into the sentence actually imposed on the

further inquiry is much more difficult than

alien, rather than a categorical inquiry into

that described in the preceding paragraphs,

the statutory punishment for the offense.

for it poses the vexing question of how far

Similarly, provisions like 8 U.S.C.

below the judgment or plea colloquy the

§ 1101(a)(43)(S), which classifies as an

court may look. The cases are few and the

aggravated felony certain obstruction of

jurisprudence is not clear. However, in the

justice offenses “for which the term of

hope that it may shed some light on this

22

troublesome area, we will do our best to Taylor itself, in some ways, provides

analyze the problem. an example. Taylor was convicted of

second-degree burglary under some

We have used a numbered subsection

section of Mo. Rev. Stat. § 560 (1969); the

of such a statute as a statute of conviction

Court remanded for consideration of

for purposes of the Taylor inquiry. See

whether he was convicted under §§

Wilson, 350 F.3d at 381 (citing N.J. Stat.

560.045, .050, .055, .060, .070, .075, or

Ann. § 2C:35-5(b)(11), which specifically

.080. Taylor, 495 U.S. at 578 n.1. These

criminalizes marijuana). In Wilson,

seven separate statutory sections, each of

however, the numbered paragraphs of §

which contained different factual

2C:35-5(b) were distinct offenses carrying

predicates for the same crime with the

separate penalties, not alternate types of

same penalty, are in practice very similar

conduct that constituted the same offense.

to a single statute defining a crime, with

The lesson there is that sometimes

seven numbered subsections containing

disjunctive parts of statutes of conviction

alternate factual predicates. And in

represent distinct offenses, with distinct

Taylor, the Supreme Court found that this

punishments. Where different crimes with

division invited further inquiry.

different penalties are involved, under the

categorical approach, further inquiry is Since any statute that is phrased in the

clearly invited into which particular crime disjunctive can be readily converted to

the petitioner was actually convicted of. outline form, it would be strange to think

that Congress intended the application of

In other statutes, disjunctive wording

the categorical approach to turn on the

or outline formatting simply describes

typography used by the statute’s drafters.

variations of the same offense, with no

Commonly, the best way to resolve the

difference in punishment and no

question raised by a conviction under a

distinction on the judgment of conviction.

statute phrased in the disjunctive, or

Even here, though, further inquiry might

structured in outline form, will be to look

be warranted, as we found in Valansi,

to the charging instrument or to a formal

because the face of the statute might not

guilty plea (as we did in Valansi, for

make clear whether the conviction

example). But even in such cases, we

qualifies as an aggravated felony. It is not

have not taken the further step of looking

clear that only those disjunctions reflected

to facts outside the charging instrument or

in the penalty or the judgment of

further plea; we leave for another day the

conviction are relevant for the purposes of

question whether statutes phrased in the

§ 1101(a)(43); where some variations of

disjunctive invite such inquiry beyond a

the crime of conviction meet the

charging instrument or a formal plea.

aggravated-felony requisites and others do

not, we have thus allowed further inquiry As suggested above, our jurisprudence

to see which variation was actually is not a seamless web. In Wilson, we did

committed. not conduct any further inquiry into the

23

underlying facts of the conviction, even Singh’s petition, we need not resolve the

though the statute at issue was phrased in matter, because Singh’s statute of

the disjunctive. As discussed above, the conviction is not phrased in the disjunctive

petitioner had been convicted under N.J. in a relevant way. The statute is phrased in

Stat. Ann. § 2C:35-5(a)(1), which made it the disjunctive, both with respect to its

unlawful “[t]o manufacture, distribute or actus reus (which can be either (1) sexual

dispense, or to possess or have under his contact or (2) causing sexual contact) and

control with intent to manufacture, its mens rea

d i s t r i b u t e o r d i s p en s e , [ c er t a in

(which can be either (a) knowing that the

substances].” Despite this disjunctive

contact is offensive to the victim, or (b)

phrasing, we declined to examine whether

knowing that the contact occurs without

Wilson had engaged in distribution or

the victim’s consent). But none of this

possession with the intent to distribute.

gives insight into the question whether 11

Subject to our discussion in the margin,13

Del. C. § 767 constitutes “sexual abuse of

this may be in tension with our earlier

a minor” because, though any combination

decision in Valansi. But there may also be

of actus reus and mens rea seem to suffice

other cases in which a statute phrased in

as the actus reus and mens rea of “sexual

the disjunctive would not invite further

abuse,” the statute is silent on the critical

inquiry; we cannot with great confidence

matter of the age of the victim.

draw any general rule on this point from

our cases. 2. Does the formal categorical approach

apply here?

At all events, for purposes of deciding

At long last, we come to the operative

question in this case: Does Taylor’s formal

13

It seems that, in Wilson, we declined categorical approach apply to 8 U.S.C.

to take the disjunctive phrasing as an § 1101(a)(43)(A) and 11 Del. C. § 767?

invitation to make further inquiry We have already indicated that Singh’s

because the disjunctive words of N.J. statute of conviction does not invite us to

Stat. Ann. § 2C:35-5(a)(1) did not go beyond the formal categorical

differentiate between offenses for approach, because it is not phrased in the

purposes of judgment and penalty (unlike disjunctive in a relevant way. Thus we

the numbered paragraphs of subsection m u s t a s k w he th er 8 U .S.C .

(b) of that statute, which carried separate § 1101(a)(43)(A) (and specifically “sexual

penalties). As noted above, however, it abuse of a minor”) invites inquiry—that is,

is possible that a disjunctive definition of whether it is more like the amount-of-loss

a single offense, for state law purposes of provision of 8 U.S.C. § 1101(a)(43)(M)(i),

judgment and penalty, might nonetheless or more like provisions for “burglary,” 8

invite further inquiry for the purposes of U.S.C. § 1101(a)(43)(G), or “crime of

§ 1101(a)(43)’s definition of an violence,” 8 U.S.C. § 1101(a)(43)(F).

aggravated felony.

24

We think it clear that “sexual abuse of IV. Conclusion

a minor” belongs in the latter category.

In view of our conclusion in Part III.B

First, it is listed in the same subsection as

that Taylor’s formal categorical approach

“murder” and “rape,” two terms that share

applies to “sexual abuse of a minor” under

the common law pedigree of “burglary,”

8 U.S.C. § 1101(a)(43)(A) and 11 Del. C.

which was examined in Taylor itself.

§ 767, our analysis in Part III.A stands:

Applying the maxim noscitur a sociis,14 we

Because§ 767 does not establish the age of

would place “sexual abuse of a minor” in

the victim, a conviction under that statute

a similar mold. Second, nothing in the

is not the aggravated felony of sexual

phrase “sexual abuse of a minor” signals

abuse of a minor. Because Singh has not

that a factual investigation is called for.

been convicted of an aggravated felony,

Congress could have enacted, for example,

we have jurisdiction and will grant the

the language “any sex offense, where the

petition for review.

victim of such offense was a minor”; such

language, parallel to provisions like 8

U.S.C. § 1101(a)(43)(G) & (S), might

direct our inquiry into the facts of the

crime rather than its definition. Third, in

an area that so routinely implicates state

laws, Congress is presumed to legislate

against the backdrop of existing state

statutes. The widespread existence of state

statutes specifically criminalizing sexual

abuse of a minor, see, e.g., Ala. Code

§ 13A-6-67 (“Sexual abuse in the second

degree”); Cal. Penal Code § 288.5

(“Continuous sexual abuse of a child”); 11

Del. C. § 778 (“Continuous sexual abuse

of a child”); 18 Pa. Cons. Stat. § 6312

(“Sexual abuse of children”), supports the

conclusion that Congress intended

Taylor’s formal categorical approach to be

applied in this case.

14

“The meaning of a word is or may be

known from the accompanying words.”

Black’s Law Dictionary 1060 (6th ed.

1990).

25