Jackson Ngaruiya v. Attorney General United State

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges. Total Pages: 6.

Case: 14-3742

Document: 003111883201

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Date Filed: 02/20/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3742
___________
JACKSON NJAGA NGARUIYA,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A058-030-954)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 20, 2015
Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges
(Filed: February 20, 2015)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Petitioner Jackson Njaga Ngaruiya petitions for review of the final order of
removal of the Board of Immigration Appeals (“BIA” or “Board”) dismissing his appeal
from a removal order entered by an Immigration Judge (“IJ”). For the reasons discussed
below, we will deny the petition for review.
Petitioner, a native and citizen of Kenya, entered the United States in 2006 as a
lawful permanent resident. In 2011, he was convicted of: (1) indecent assault of a person
less than sixteen years old, in violation of 18 Pa. Cons. Stat. § 3126(a)(8); and (2)
indecent assault without consent, in violation of 18 Pa. Cons. Stat. § 3126(a)(1).
Thereafter, the Department of Homeland Security (DHS) charged Petitioner as removable
for having been convicted of an aggravated felony (namely, the sexual abuse of a minor),
see 8 U.S.C. § 1227(a)(2)(A)(iii); see also 8 U.S.C. § 1101(a)(43)(A) (providing that the
“sexual abuse of a minor” qualifies as an “aggravated felony”).1 The DHS also charged
Petitioner with removability for having been convicted of a crime involving moral
turpitude, see 8 U.S.C. § 1227(a)(2)(A)(i). At an administrative hearing, Petitioner
argued before the IJ that he had not been convicted of an aggravated felony and thus
should not be ordered removed on that basis. He did not contest the moral turpitude
charge.

In Restrepo v. Att’y Gen., 617 F.3d 787, 796 (3d Cir. 2010), we concluded that 18
U.S.C. § 3509(a) was an appropriate guidepost for the definition of “sexual abuse of a
minor.” That section defines “sexual abuse” to include “the . . . use . . . of a child to
engage in . . . sexually explicit conduct or the rape, molestation, prostitution, or other
form of sexual exploitation of children . . . .” 18 U.S.C. § 3509(a)(8).
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In March 2014, the IJ ruled that Petitioner’s conviction for indecent assault of a
person less than sixteen years old qualified as sexual abuse of a minor and, therefore, as
an aggravated felony. He then ordered that Petitioner be removed to Kenya. In an
August 2014 order, the BIA dismissed Petitioner’s administrative appeal, upholding the
IJ’s determination that Petitioner’s conviction under 18 Pa. Cons. Stat. § 3126(a)(8)2
qualifies categorically as molestation or sexual exploitation of a child under 18 U.S.C.
§ 3509(a)(8) and, by extension, sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A).
The Board determined that Petitioner’s arguments to the contrary had been foreclosed by
our recent decision in Cadapan v. Attorney General of the United States, 749 F.3d 157,
161 (3d Cir. 2014). This petition for review followed.
Our jurisdiction is circumscribed because Petitioner is removable for having been
convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). However, we can
consider the jurisdictional prerequisite whether the alien’s conviction constitutes an
aggravated felony, and we can also hear “constitutional claims and questions of law” (but
not factual challenges) even if presented by an alien convicted of an aggravated felony.

18 Pa. Cons. Stat. § 3126(a)(8) provides: “A person is guilty of indecent assault if the
person has indecent contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the
person or the complainant and the complainant is less than 16 years of age and the person
is four or more years older than the complainant and the complainant and the person are
not married to each other.” Indecent contact is defined as “[a]ny touching of the sexual
or other intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa. Cons. Stat. § 3101.
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Restrepo, 617 F.3d at 790. As he did before the Board, Petitioner argues here that his
Pennsylvania indecent assault conviction does not qualify as an aggravated felony under
the Immigration and Nationality Act (“INA”).3 We agree with the BIA that his
arguments in support of that contention are foreclosed by our decision in Cadapan.
In Cadapan, we determined that a conviction of indecent assault under 18 Pa.
Cons. Stat. § 3126(a)(7)4 is subject to the “categorical approach” of analysis.5 749 F.3d
at 159. We further determined that the Pennsylvania statute categorically constitutes the
aggravated felony of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) because
all of the conduct criminalized by the statute meets the definition of “sexual abuse” in 18
U.S.C. § 3509(a)(8), which the BIA reasonably uses as a reference point for interpreting
“sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A). Id. at 160-61. In so holding,
we rejected one of the arguments that Petitioner raises on appeal—that because 18 Pa.

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In his brief, Petitioner asserts that he was convicted under 18 Pa. Cons. Stat.
§ 3126(a)(7). However, the record of conviction demonstrates that he was, in fact,
convicted under 18 Pa. Cons. Stat. § 3126(a)(8).
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The only difference between § 3126(a)(7) and § 3126(a)(8) (under which Petitioner was
convicted) is that the former criminalizes indecent assault against minors under thirteenyears-old, and the latter criminalizes the same behavior against minors under sixteenyears-old (when the perpetrator is four or more years older and not married to the minor).
The provisions are otherwise the same.
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The categorical approach precludes review of the factual basis for the underlying
conviction. See Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004); see also Taylor
v. United States, 495 U.S. 575, 600-02 (1990). Instead, we consider whether the least
culpable conduct necessary to sustain a conviction under the statute satisfies the
definition of the applicable INA provision. See Partyka v. Att’y Gen., 417 F.3d 408, 411
(3d Cir. 2005).
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Cons. Stat. § 3126 is a divisible statute, it should be analyzed under the “modified
categorical approach” of analysis, rather than the categorical approach.6 In Cadapan, we
concluded that that even though Pennsylvania’s indecent assault statute is divisible, it
should not be analyzed under the modified categorical approach because “all of the
conduct covered by the statute constitutes sexual abuse of a minor.” Id. at 161 n. 4
(citing United States v. Jones, 740 F.3d 127, 134 (3d. Cr. 2014) as holding that the
modified categorical approach is only appropriate where a divisible state statute
proscribes some conduct that falls under umbrella of federal statute and some that does
not). Petitioner has not provided us with any reason to disturb that ruling.
Petitioner also argues that the Board erred in determining that his indecent assault
conviction constituted an aggravated felony because the “mere touching” of a minor
should not qualify as sexual abuse. However, as mentioned, in Cadapan we determined
that that all conduct covered by Pennsylvania’s indecent assault statute categorically
constitutes “molestation” or “sexual exploitation” of a child within the meaning of 18
U.S.C. § 3509(a)(8) and, by extension, “sexual abuse of a minor” under 8 U.S.C.
§ 1101(a)(43)(A). 749 F.3d at 161. Petitioner’s argument is therefore unavailing.

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If a statute of conviction lists elements in the alternative, some of which fit the federal
definition and some of which do not, courts apply the modified categorical approach and
are permitted “to consult a limited class of documents . . . to determine which alternative
formed the basis of the defendant’s prior conviction.” Descamps v. United States, 133 S.
Ct. 2276, 2279 (2013); see also United States v. Brown, 765 F.3d 185, 188–91 (3d Cir.
2014) (discussing operation of the categorical and modified categorical approach in light
of Descamps).
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Based on the above, the BIA correctly determined that Petitioner’s conviction for
indecent assault qualifies as sexual abuse of a minor and thus rendered him a removable
alien based on an aggravated felony. We will therefore deny the petition for review.

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