Richard Amos v. Eric Holder, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A037-486-865. [999599318]. [13-2005, 14-1633]

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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:

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

June 10, 2015

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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.

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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

judge’s

order

dismissed
of

reconsideration.

Amos’s

removal

appeal

and

from

denied

an

Amos’s

immigration
motion

for

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

permanent resident, when he was about nine years old.

a

lawful

In 1990,

he was convicted in a Maryland state court of the crime of
“causing abuse to [a] child” (the child abuse conviction), in
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violation

of

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former

Maryland

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Code,

Article

27

§ 35A

(1988).

That statute stated in relevant part:
(a) Definitions –
(1) In this section
meanings indicated.

the

following

words

have

the

(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,
injuries are sustained or not.

whether

physical

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

Md.

The Maryland court

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

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entire

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sentence

suspended,

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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.
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“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.
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cover a broad range of acts of a sexual nature.”

Under 18

U.S.C.

as

§ 3509(a)(8),

“sexual

abuse”

is

defined

“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
former

the

crime

Maryland

of

sexual

statute

and,

abuse

of

a

accordingly,

child

under

dismissed

the

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
7

to

prevent

molestation

or

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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

provided

abuse

for

of

this

a

minor.”

conclusion

The
is

only

that

reasoning

the

generic

the

BIA

federal

offense, as construed in Rodriguez-Rodriguez, does not require
physical contact with the victim and “includes a broad range of
maltreatment

of

§ 3509(a)(8).

a

sexual

nature”

as

detailed

in

18

U.S.C.

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
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Maryland statute qualifies as the aggravated felony of “sexual
abuse of a minor,” within the meaning of Subsection A.
consider this question of law de novo. 3

We

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.
contends

that

his

Maryland

conviction

does

not

Thus, Amos
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, 22526 (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).
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of a minor” in Subsection A.
does

not

maintain

that

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Unlike the BIA, the government

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

removable

rather

offense

than

under

of

physical

Subsection

abuse,

A.

We

qualified

disagree

as

with

a

the

government’s arguments.
C.
i.
Under the Immigration and Nationality Act (INA), a noncitizen 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
state

determining
law

qualifies

whether
as

an

a

conviction
aggravated

under
felony

a

particular

for

removal

purposes, we generally apply the categorical approach set forth
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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

federal

conviction’
definition

Moncrieffe

v.

categorically
of

Holder,

a
133

fits

corresponding
S.

Ct.

1678,

within

the

‘generic’

aggravated

felony.”

1684

(2013)

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

(quoting
“A state

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

of

the

state

offense

necessarily

equating to the generic federal offense.”
267

(quoting

Moncrieffe,

133

S.

Ct.

at

involved

facts

Castillo, 776 F.3d 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).

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categorical definition[] to capture all offenses of a certain
[type]
under

.

.

.

state

applied

regardless

law).

uniformly

convictions.

of

This
to

technical

approach

determine

definitions

allows
the

federal

effect

of

and

labels

laws

to

prior

be

state

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

questions of law.”

BIA

decisionmaking

power

to

decide

such

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,

statute.”

capricious,

or

467 U.S. at 843-44.

manifestly

contrary

to

the

Also, we “may not substitute”

our “own construction of a statutory provision for a reasonable
interpretation” by the BIA.

Id. at 844.
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In prior cases, we have applied the principles of Chevron
to

the

BIA’s

precedential

interpretation

of

generic

crimes listed in the aggravated felony statute. 5

federal

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
analysis

potential
here,

complication

because

Rodriguez-Rodriguez,

a

the

BIA

nevertheless
relied

precedential

Chevron deference can apply.

BIA

in

arises

in

Amos’s

case

decision

to

our
on

which

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).
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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

victim.

perpetrator

have

physical

22 I. & N. Dec. at 991-92.

contact

with

the

child

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

Subsection
abuse.”

A

felony

any

statute,

federal

Id. at 994-95.

Congress

criminal

did

statute

not

cite

defining

in

“sexual

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.”
(citing 18 U.S.C. §§ 2242, 2243).

Id. at 995-96

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,
14

2243,

and

2246

were

“too

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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

providing

also

discussed

procedural

in

Rodriguez-Rodriguez

protections

witnesses, 18 U.S.C. § 3509(a)(8).

for

child

a

statute

victims

and

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.
Ashcroft,

258

F.3d

Rodriguez-Rodriguez

52,
as

58-59

(2d

adopting

a

Cir.

See Mugalli v.

2001)

(describing

definition

applicable

nationwide); Restrepo v. Attorney Gen., 617 F.3d 787, 792, 79596

(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.
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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

“reasonable approach” in Rodriguez-Rodriguez).

to

the

BIA’s

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.”
We

therefore

conclude

Rodriguez-Rodriguez

a

Id. at 996 (emphasis added).
that

the

particular

BIA

did

definition

not

of

adopt

the

in

generic

federal crime of “sexual abuse of a minor” for application of
Subsection A.
distinction

in

We observe that the Ninth Circuit drew a similar
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”
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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

perpetrator have physical contact with the victim.
Dec. at 996.
not

provide

federal

the

22 I. & N.

Beyond this limited holding, however, the BIA did
direction

crime

Espinoza,

that

546

of

regarding

“sexual

F.3d

at

abuse
1157-58

the
of

elements
a

minor.”

(explaining

of

the
See

that

generic
Estrada-

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.”
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able to apply that definition to determine whether a particular
state offense is encompassed within the generic federal crime.
See

id.

at

270

(holding

unauthorized

use

of

a

that

Virginia
did

categorically

vehicle

statutory

not

crime

of

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
conclusion:

subject
(1)

that

to

Chevron

the

deference

generic

is

federal

limited

offense

to

the

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 AguirreAguirre, 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

marks omitted).
18

and

internal

quotation

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

subject

Maryland

to

removal

statute.

precedential

based

Because

weight,

we

on

his

the

apply

violation

decision

the

of

is

principles

the

former

not

afforded

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.”
at 140.

323 U.S.

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
child.

of

the

former

Maryland

crime

of

sexual

abuse

of

a

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”).
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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

defendant

generic
make

federal

physical

offense

contact

does

with

not

the

require

child

that

victim.

the
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.
BIA

in

abuse

Rodriguez-Rodriguez
of

a

minor”

under

held
the

that

INA

7

the

does

offense

not

Although the
of

require

“sexual
physical

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)).
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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

enticement,

the
or

“employment,
coercion

of

a

use,
child

persuasion,
to

engage

in,

inducement,
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
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added).

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Pg: 22 of 23

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

failing

to

both

intervene”

“the

affirmative

in

sexual

acts

abuse

of

and

the

watching
“omission

failure to act when a child is being sexually abused.”
at

899.

Thus,

contrary

to

the

BIA’s

and

analysis,

or

722 A.2d

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
prevent

A

necessarily

sexual

abuse,

former Maryland statute.

encompasses

the

least

the

culpable

failure
conduct

to

act

under

to
the

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

Doc: 49

under

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the

former

Pg: 23 of 23

Maryland

statute

aggravated felony under Subsection A.

qualifies

as

an

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

23