Rafael Larios-Reyes v. Loretta Lynch

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A046-916-967. [999981120]. [15-2170]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2170

RAFAEL ANTONIO LARIOS-REYES, a/k/a Rafael A. Reyes,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued:

September 21, 2016

Decided:

December 6, 2016

Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.
Petition for review granted and order of removal vacated by
published opinion.
Chief Judge Gregory wrote the opinion, in
which Judge Niemeyer and Judge Harris joined.
ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner.
Karen L. Melnik,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
ON BRIEF: Himedes V. Chicas, JEZIC & MOYSE, LLC,
Silver Spring, Maryland, for Petitioner.
Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Derek C. Julius,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

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GREGORY, Chief Judge:
Rafael Antonio Larios-Reyes, a native and citizen of El
Salvador,

seeks

review

of

the

decision

of

the

Board

of

Immigration Appeals (“BIA”) finding him removable based on his
conviction

for

“Third

Degree

Sex

Criminal Law Article § 3-307.

Offense”

under

Maryland

The BIA determined that Larios-

Reyes’s state conviction qualifies as the aggravated felony of
“sexual

abuse

of

a

Immigration

and

immigration

judge’s

removable.
hold

that

minor”

Nationality
finding

under
Act

§ 1101(a)(43)(A)

(“INA”)

that

and

of

the

affirmed

the

Larios-Reyes

is

therefore

We find that the BIA erred as a matter of law and
Larios-Reyes’s

conviction

does

not

constitute

the

aggravated felony of “sexual abuse of a minor” under the INA
because Maryland Criminal Law Article § 3-307 proscribes more
conduct than does the generic federal offense.

We therefore

grant Larios-Reyes’s petition for review, vacate the order of
removal,

and

order

his

immediate

release

from

Department

of

Homeland Security (“DHS”) custody.

I.
Larios-Reyes
permanent

resident

entered
in

the

1999,

United
when

Administrative Record (“A.R.”) 450.

he

States
was

as

four

a
years

lawful
old.

On August 5, 2013, Larios-

Reyes was charged with “Sex Offense Second Degree” in violation
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of Maryland Criminal Law Article § 3-306 and “Sex Abuse Minor”
in violation of § 3-602(b)(1).

Id. at 765.

2013, Larios-Reyes was indicted on both counts.

On September 13,
Id. at 762-63.

In May 2014, Larios-Reyes and the State of Maryland reached
a plea agreement.

The State dismissed the “Sex Abuse Minor”

charge and amended the “Sex Offense Second Degree” charge to the
lesser charge of “Third Degree Sex Offense” under § 3-307.
at 756, 769.

Id.

Larios-Reyes pleaded guilty to the amended second

charge, which states that
RAFAEL ANTONIO REYES (date of birth 09/16/94), on or
about and between November 1, 2012, and November 30,
2012[,] . . . in Montgomery County, Maryland, did
commit a sexual offense in the third degree on
[victim] (date of birth 05/23/08), to wit:
fellacio,
in violation of Section 3-307 of the Criminal Law
Article against the peace, government, and dignity of
the State.
Id. at 763.
The Maryland statute under which Larios-Reyes was convicted
provides that
(a) A person may not:
(1) (i) engage
in
sexual
contact
with
another without the consent of the
other; and
(ii) 1. employ or display a dangerous
weapon, or a physical object that
the victim reasonably believes is
a dangerous weapon;
2. suffocate, strangle, disfigure,
or
inflict
serious
physical
injury on the victim or another
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in the course of committing the
crime;
3. threaten, or place the victim in
fear, that the victim, or an
individual known to the victim,
imminently will be subject to
death,
suffocation,
strangulation,
disfigurement,
serious
physical injury, or kidnapping;
or
4. commit the crime while aided and
abetted by another;
(2) engage in sexual contact with another if
the victim is a mentally defective
individual,
a
mentally
incapacitated
individual, or a physically helpless
individual, and the person performing
the act knows or reasonably should know
the victim is a mentally defective
individual,
a
mentally
incapacitated
individual, or a physically helpless
individual;
(3) engage in sexual contact with another if
the victim is under the age of 14 years,
and the person performing the sexual
contact is at least 4 years older than
the victim;
(4) engage in a sexual act with another if
the victim is 14 or 15 years old, and
the person performing the sexual act is
at least 21 years old; or
(5) engage
in
vaginal
intercourse
with
another if the victim is 14 or 15 years
old, and the person performing the act
is at least 21 years old.
Md. Code Ann., Crim. Law § 3-307 (2002).
The

Circuit

Court

for

Montgomery

County,

Maryland,

sentenced Larios-Reyes to 364 days in prison, all suspended, and

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five years of supervised probation and medical treatment.
also ordered him to register as a sexual offender.
In

July

2014,

when

Larios-Reyes

failed

to

It

A.R. 769-73.

report

to

his

probation officer or register as a sexual offender, the court
issued a warrant for his arrest.
was

arrested

approximately

one

Id. at 778-81.
month

without bond.

2014,

DHS

issued

charged

him

with

and

ordered

held

Id. at 757.

In

later

Larios-Reyes

October

appear.

DHS

Larios-Reyes
removability

a

notice

based

on

to
his

conviction under § 3-307, which DHS contended constituted the
aggravated

felony

of

“sexual

abuse

of

a

§ 1101(a)(43)(A) of the INA.

Id. at 822.

the

the

charge

of

from

the

United

immigration

ordered

judge

Larios-Reyes

Salvador.

upheld
removed

Id. at 397.

minor”

under

On March 27, 2015,
removability
States

to

and
El

Larios-Reyes appealed to the BIA.

There was no dispute on appeal that a conviction under § 3307--without more information on what part of § 3-307 LariosReyes violated--would not constitute “sexual abuse of a minor”
under the INA.

What the parties contested was whether the BIA

could consider a narrower portion of § 3-307 to determine if the
particular

elements

of

Larios-Reyes’s

“sexual abuse of a minor.”

conviction

constituted

The questions for the BIA, then,

were (1) whether § 3-307 is a divisible statute, meaning that it
creates multiple alternative offenses, at least one of which
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constitutes

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“sexual

abuse

of

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a

minor,”

and

if

so,

(2)

what

portion of § 3-307 Larios-Reyes was necessarily convicted of,
and

(3)

whether

the

elements

of

Larios-Reyes’s

conviction

matched the elements of the generic federal offense.
In an unpublished opinion issued by a single member, the
BIA first concluded that § 3-307 is a divisible statute because
it “create[s] multiple versions of the crime of sexual offense
in the third degree.”

Id. at 4.

record

and

of

convicted

conviction
under

The BIA then reviewed the

concluded

§ 3-307(a)(3).

The

that
BIA

Larios-Reyes

was

enumerated

the

“essential elements of an offense under § 3-307(a)(3)” as “that
the

defendant

had

sexual

contact

with

the

victim,

that

the

victim was under 14 years of age at the time of the act, and
that the defendant was at least 4 years older than the victim.”
Id.

It further found that although the conduct specified in the

indictment--fellatio--falls

within

the

definition

of

“sexual

act” under Maryland law, “such conduct is also encompassed by
the definition of ‘sexual contact,’” id. at 4 n.3, which is the
conduct element in § 3-307(a)(3).
The BIA then concluded that an offense under § 3-307(a)(3)
categorically constitutes “sexual abuse of a minor” under the
INA.

Id. at 5.

In reaching this conclusion, the BIA did not

adopt a definition of the generic federal offense.

Nor did it

refer directly to any interpretations set forth in either BIA or
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Instead, it compared § 3-307(a)(3)’s

elements to the elements of a California statute that the BIA
had

determined

constituted

the

federal

generic

offense

of

“sexual abuse of a minor” in In re Esquivel-Quintana, 26 I. & N.
Dec. 469 (B.I.A. 2015), aff’d, Esquivel-Quintana v. Lynch, 810
F.3d 1019 (6th Cir. 2016), cert. granted, No. 16-54, 2016 WL
3689050 (U.S. Oct. 28, 2016).
because

§ 3-307(a)(3)’s

A.R. 4-5.

elements

The BIA here held that

are

narrower

than

the

California statute’s, § 3-307(a)(3) also categorically matches
the generic federal offense.
The

BIA

determination

accordingly
that

affirmed

Larios-Reyes

is

the

immigration

removable

as

judge’s
an

alien

convicted of an aggravated felony under § 1101(a)(43)(A) of the
INA, and it dismissed his appeal.

Larios-Reyes timely filed

this petition for review of the BIA’s decision.

II.
We generally lack jurisdiction to review any final order of
removal

against

an

alien

removable

as

an

aggravated

felon.

8 U.S.C. § 1252(a)(2)(C); Kporlor v. Holder, 597 F.3d 222, 225–
26 (4th Cir. 2010).
review
whether

We have limited jurisdiction, however, to

constitutional
a

conviction

claims

or

qualifies

questions
as

an

of

law,

aggravated

including
felony.

8 U.S.C. § 1252(a)(2)(D); Amos v. Lynch, 790 F.3d 512, 517 (4th
7

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Cir. 2015).

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We review this question of law de novo.

Castillo

v. Holder, 776 F.3d 262, 267 (4th Cir. 2015).
A.
Under

the

INA,

an

alien

is

removable

if

he

or

she

is

“convicted of an aggravated felony at any time after admission.”
8 U.S.C. § 1227(a)(2)(A)(iii).

The INA contains a long list of

crimes that qualify as an “aggravated felony,” including “sexual
abuse of a minor.”

8 U.S.C. § 1101(a)(43)(A).

To determine whether Larios-Reyes’s conviction under § 3307 qualifies as “sexual abuse of a minor” under the INA, we
would usually apply the categorical approach set forth in Taylor
v. United States, 495 U.S. 575 (1990).
ask

whether

conviction’

“‘the

state

categorically

statute
fits

Under this approach, we
defining

within

the

the

‘generic’

definition of a corresponding aggravated felony.”
Holder,

133

S.

Ct.

1678,

1684

(2013)

(quoting

Duenas–Alvarez, 549 U.S. 183, 186 (2007)).

crime

of

federal

Moncrieffe v.
Gonzales

v.

We answer this by

first considering the elements of the generic federal crime.
See Taylor, 495 U.S. at 590.

The state statute is a categorical

match with the federal definition “only if a conviction of the
state offense ‘“necessarily” involved . . .
[the] generic [federal offense].’”

facts equating to

Moncrieffe, 133 S. Ct. at

1684 (quoting Shepard v. United States, 544 U.S. 13, 24 (2005))
(alterations in original).

We therefore “focus on the minimum
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conduct necessary for a violation of the state statute, while
ensuring

that

there

is

a

‘realistic

probability,

not

a

theoretical possibility, that the State would apply its statute
to

conduct

crime.’”

that

falls

outside

the

generic

definition

of

a

Castillo, 776 F.3d at 267–68 (quoting Gonzales, 549

U.S. at 193).

We look to the decisions of Maryland’s appellate

courts to see both the minimum conduct to which the statute has
been applied and those courts’ pronouncements on the minimum
conduct to which the statute might be applied.

See id. at 268.

And “‘[t]o the extent that the statutory definition of [§ 3307(a)(3)]

has

courts,

‘that

elements

of

been

interpreted’

interpretation
state

by

the

constrains

law.’”

Id.

state’s

our

(quoting

appellate

analysis
United

of

States

the
v.

Aparicio–Soria, 740 F.3d 152, 154 (4th Cir. 2014)).
Here, the parties do not dispute that under the categorical
approach,

§ 3-307

definition

of

is

broader

“sexual

than

abuse

of

any

a

conceivable

minor”

because

federal
§ 3-307

enumerates several offenses that do not require the victim to be
a

minor.

See

Md.

Code

Ann.,

Crim.

Law

§ 3-307(a)(1), (2).

Under the categorical approach, then, Larios-Reyes would easily
prevail.

But the Supreme Court has recognized a “narrow range

of cases” in which courts, when faced with an overbroad but
“divisible”
statute

is

statute,
a

may

consider

categorical

match
9

whether
to

the

a

portion
federal

of

the

generic

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Descamps v. United States, 133 S. Ct. 2276, 2284

(2013) (quoting Taylor, 495 U.S. at 602).

This is called the

“modified categorical approach.”
In

order

for

a

court

to

apply

the

approach, a statute must be “divisible.”

modified

categorical

A statute is divisible

when it (1) “sets out one or more elements of the offense in the
alternative,” and (2) at least one of those elements or sets of
elements corresponds to the federal definition at issue.

Id. at

2281; see also United States v. Cabrera-Umanzor, 728 F.3d 347,
352 (4th Cir. 2013) (stating that “general divisibility [] is
not enough; a statute is divisible . . . only if at least one of
the

categories . . . constitutes,

aggravated felony]”).
statute’s

elements,

by

its

elements,

[an

For the first prong, the focus is on the
not

the

facts

of

the

crime.

Then,

the

inquiry is whether the statute has listed “multiple, alternative
elements, . . . effectively creat[ing] ‘several different . . .
crimes.’”
Holder,

Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v.

557

U.S.

29,

41

(2009)).

The

Supreme

Court

has

emphasized that a statute setting forth merely alternative means
of

committing

an

offense

will

not

satisfy

this

requirement.

Mathis v. United States, 136 S. Ct. 2243, 2255 (2016).

This is

because a federal penalty may be imposed based only on what a
jury necessarily found or what a defendant necessarily pleaded

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to,

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and

the

support a conviction.

means

of

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commission

is

not

necessary

to

Id.

If a statute is divisible, then the modified categorical
approach

is

“examine

a

documents, 1

appropriate.
limited
“to

This

class

determine

of

approach

permits

documents,”

which

of

a

known

statute’s

courts
as

to

Shepard

alternative

elements formed the basis of the defendant’s prior conviction.”
Descamps, 133 S. Ct. at 2284.
the

particular

elements

of

the

It is then possible to compare

elements

of

the

statute

as

a

conviction,

whole,

to

rather

the

than

federal

the

generic

definition.
The Supreme Court has “underscored the narrow scope of” the
modified categorical approach.

Id.

It is “to identify, from

among several alternatives, the crime of conviction so that the
court can compare it to the generic offense.”

Id. at 2285.

The

Court has made clear that review under this approach “does not
authorize

a

sentencing

court

to

inquiry for an elements-based one.
1

substitute

[]

a

facts-based

A court may use the modified

Shepard documents “includ[e] charging documents, plea
agreements, transcripts of plea colloquies, findings of fact and
conclusions of law from a bench trial, and jury instructions and
verdict forms.”
Johnson v. United States, 559 U.S. 133, 144
(2010); see also Shepard, 544 U.S. at 26 (listing documents that
a reviewing court may consider).
And in this Circuit, courts
may also consider applications for statements of charges and
statements of probable cause, so long as the statements are
expressly incorporated into the statement of charges itself.
United States v. Donnell, 661 F.3d 890, 894-96 (4th Cir. 2011).
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approach

only

divisible

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to

determine

statute

conviction.”

formed

Id.

at

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which
the

2293.

alternative

basis
Once

a

of
court

element

the

in

a

defendant’s

has

made

this

determination, it can compare that part of the statute to the
generic

federal

offense

using

the

traditional

categorical

approach, which remains centered on elements, not facts.

Id. at

2285 (stating that the modified categorical approach “preserves
the categorical approach’s basic method”).

And where an element

of the conviction is defined to include multiple alternative
means, courts must consider all of those means; an element is
not further divisible into its component parts.

See id. at

2291; see also Mathis, 136 S. Ct. at 2255-57.
To begin this analysis, we must determine whether § 3-307
is a divisible statute.

We agree with the BIA that it is.

We

recently held in United States v. Alfaro, 835 F.3d 470, 473 (4th
Cir. 2016), that § 3-307 lists alternative sets of elements that
create multiple versions of the crime of third-degree sexual
offense.

Alfaro

thus

confirms

that

prong of the divisibility inquiry.
resolve

the

second

prong

of

the

§ 3-307

meets

the

first

Alfaro does not, however,
divisibility

test,

which

is

whether any set of elements in § 3-307 constitutes “sexual abuse
of a minor.”
In Alfaro, we held that § 3-307 is divisible, but we were
comparing § 3-307 to “crime of violence” under the Sentencing
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Guidelines.

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Id.

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Here, we must determine whether any set of

elements in § 3-307 constitutes an “aggravated felony” under the
INA--a question not answered by Alfaro.

We emphasize the point

that a statute might be divisible as compared to one federal
statute and not divisible as compared to another.

Whether any

set of elements meets the generic federal definition will vary
depending

on

the

generic

federal

definition

at

issue.

The

second prong of the divisibility inquiry sometimes merits less
discussion, see id., but it is an important--and required--step
in the analysis. 2

Here, at least one set of elements in § 3-307

must qualify as “sexual abuse of a minor” in order for the
statute to be divisible.
We find that at least the set of elements in § 3-307(a)(5)
constitutes “sexual abuse of a minor” under the INA.
307(a)(5)

prohibits

“engag[ing]

in

vaginal

Section 3-

intercourse

with

another if the victim is 14 or 15 years old, and the person
performing the act is at least 21 years old.”
constitutes

“sexual

abuse

of

a

2

minor”

under

any

This clearly
conceivable

Indeed, had the petitioner here recognized that Alfaro
only answered the first prong of the divisibility inquiry, he
might
not
have
conceded
at
oral
argument
that
Alfaro
conclusively establishes that § 3-307 is a divisible statute in
this case.

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federal

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generic

definition. 3

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Because

at

least

one

set

of

elements matches the generic federal offense, the second prong
of the divisibility inquiry is satisfied.
a

divisible

statute

§ 1101(a)(43)(A),

for

and

we

purposes
may

of

use

Section 3-307 is thus

its
the

comparison
modified

with

INA

categorical

approach to determine which statutory elements formed the basis
of Larios-Reyes’s conviction and whether those elements match
the federal generic definition.
The Shepard documents show that Larios-Reyes was convicted
under the elements listed in § 3-307(a)(3), “sexual contact with
another if the victim is under the age of 14 years, and the
person performing the sexual contact is at least 4 years older
than the victim.”

The factual basis for Larios-Reyes’s plea

details one instance in which Larios-Reyes asked the victim to
touch his erect penis, which she did for 2-3 minutes, and two
instances

in

which

Larios-Reyes

asked

the

victim

to

perform

fellatio on him, which she did for 2-3 seconds each time.
767-68.

A.R.

Fellatio is specifically categorized as a “sexual act”

under Maryland law.

See Md. Code Ann., Crim. Law § 3-301(d)(1).

Fellatio could also qualify as “sexual contact,” which Maryland
defines as “an intentional touching of the victim’s or actor’s

3

And it certainly matches the definition that we proceed to
adopt here in Section II.C.

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genital,

anal,

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or

other

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intimate

area

for

sexual

gratification, or for the abuse of either party.”

arousal

or

Id. § 3-

301(e)(1); see Partain v. State, 492 A.2d 669, 672-73 (Md. Ct.
Spec.

App.

1985)

(holding

that

cunnilingus

“sexual act” and “sexual contact”).

constitutes

both

The Shepard documents thus

reveal that an element of Larios-Reyes’s conviction was either
“sexual act” or “sexual contact.”

The Shepard documents also

establish the age elements of the offense.
eighteen
Therefore,

years

old,

and

Larios-Reyes

the

victim

necessarily

Larios-Reyes was

was

pleaded

four
guilty

years
to

old.

all

of

§ 3-307(a)(3)’s elements, 4 and we affirm the BIA’s finding that
Larios-Reyes was convicted under § 3-307(a)(3).
B.
Having established that § 3-307 is a divisible statute and
that Larios-Reyes was convicted under § 3-307(a)(3), we now turn
4

The Shepard documents eliminate § 3-307(a)(4) and (a)(5)
as the basis for the conviction because they both require that
the victim be “14 or 15 years old” and that “the person
performing the sexual act [be] at least 21 years old.” Neither
element is satisfied here, because at the time of the offense,
the victim was four years old and Larios-Reyes was eighteen
years old. The Shepard documents also reveal that Larios-Reyes
was not convicted under § 3-307(a)(1) or (a)(2). The documents
do not indicate that Larios-Reyes engaged in sexual contact with
the victim under any of the aggravating circumstances listed in
§ 3-307(a)(1).
Nor do the documents contain any evidence that
the victim was “a substantially cognitively impaired individual,
a mentally incapacitated individual, or a physically helpless
individual,” as required by § 3-307(a)(2).
Therefore, there is
no factual basis to support the conclusion that Larios-Reyes was
necessarily convicted under any of these subsections.
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whether

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§ 3-307(a)(3)’s

Pg: 16 of 29

elements

categorically

match

the

elements of the generic federal definition of “sexual abuse of a
minor.”

A threshold question that we must answer before we can

compare

these

statutes

is

how

to

define

“sexual

minor.”

The INA does not define it, and this Court has not done

so in a published opinion interpreting the INA.

abuse

of

a

Therefore, we

must consider the BIA’s interpretation of this generic federal
offense, because under Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984), we are required to
defer to the BIA’s precedential interpretation of a “silent or
ambiguous”

statute

so

long

as

that

interpretation

is

not

“arbitrary, capricious, or manifestly contrary to the statute,”
id. at 844.
Although

the

because

it

is

member,

it

relied

Quintana.

BIA’s

decision

unpublished
on

a

and

here

was

is

issued

precedential

BIA

not
by

a

precedential
single

decision,

Board

Esquivel-

We therefore must determine whether that decision

warrants deference.

See Hernandez v. Holder, 783 F.3d 189, 192

(4th Cir. 2015).
The
California

BIA

in

offense

Esquivel-Quintana
of

“unlawful

considered

intercourse

whether

with

a

the

minor”

categorically constitutes “sexual abuse of a minor” under the
INA.

26

I.

&

N.

Dec.

469.

In

concluding

that

it

was

a

categorical match, the BIA did not adopt a definition of the
16

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federal
relied

Filed: 12/06/2016

offense
on

the

to

which

we

Pg: 17 of 29

might

interpretive

defer

framework

here.

set

Instead,

forth

in

In

it
re

Rodriguez–Rodriguez, 22 I. & N. Dec. 991, 996 (B.I.A. 1999).
Esquivel-Quintana, 26 I. & N. Dec. at 470-71.

We therefore must

consider that framework.
In

Rodriguez–Rodriguez,

the

BIA

looked

to

18

U.S.C.

§ 3509(a)(8)--a statute that provides procedural protections for
child victims and witnesses and that lists crimes constituting
“sexual abuse”--and determined that it might serve “as a guide
in identifying the types of crimes [the BIA] would consider to
be sexual abuse of a minor.” 5
Dec. at 996.
[that]

Rodriguez–Rodriguez, 22 I. & N.

The BIA expressly stated that it was “not adopting

statute

as

a

definitive

standard

purposes of § 1101(a)(43)(A) of the INA.
we

held

in

interpretation
U.S.C.

Amos

v.

to

which

§ 3509(a)(8)

“interpretive

Lynch
to

might

touchstone”

that

defer
provide
for

5

or

Id.

there
under

definition”

For that reason,
was

Chevron

guidance

determining

for

but

no

statutory

and

that

was

not

whether

a

18
the

state

Under 18 U.S.C. § 3509(a)(8), “the term ‘sexual abuse’
includes
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.”
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conviction qualifies as a removable offense. 6
20.

790 F.3d at 519-

We also pointed out that because § 3509(a)(8) “includ[es]

‘a broad range of maltreatment of a sexual nature,’” it “does
not clarify the scope of the generic federal crime” of “sexual
abuse of a minor.”

Id. at 522 (quoting Rodriguez-Rodriguez, 22

I. & N. Dec. at 996).

Accordingly, we cast serious doubt on the

usefulness of Rodriguez-Rodriguez’s interpretive approach.
In Esquivel-Quintana, the BIA relied on Rodriguez-Rodriguez
to support its conclusion and did not adopt a definition of the
generic federal offense of “sexual abuse of a minor.”
Quintana, 26 I. & N. Dec. at 470-71.

Esquivel-

Therefore, we need not

6

The Ninth and Tenth Circuits have similarly declined to
give Chevron deference to Rodriguez-Rodriguez.
Rangel-Perez v.
Lynch, 816 F.3d 591, 598-99 (10th Cir. 2016) (citing Amos and
agreeing that “Rodriguez-Rodriguez . . . did not establish 18
U.S.C. § 3509(a) as the exclusive touchstone for defining the
elements of the INA’s ‘sexual abuse of a minor’ category of
‘aggravated’ felonies”); Estrada-Espinoza v. Mukasey, 546 F.3d
1147, 1157 (9th Cir. 2008) (en banc), overruled 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, 133 S. Ct.
2276 (“Chevron deference does not apply in these circumstances
because Rodriguez–Rodriguez did not interpret a statute within
the meaning of Chevron, but only provided a ‘guide’ for later
interpretation.”).
We acknowledge that three of our sister circuits have held
that Rodriguez-Rodriguez adopted § 3509(a) as the definition of
“sexual abuse of a minor” under the INA.
See Velasco–Giron v.
Holder, 773 F.3d 774, 776 (7th Cir. 2014), cert. denied sub nom.
Velasco–Giron v. Lynch, 135 S. Ct. 2072 (2015); Restrepo v.
Attorney Gen., 617 F.3d 787, 792, 795–96 (3d Cir. 2010); Mugalli
v. Ashcroft, 258 F.3d 52, 58–59 (2d Cir. 2001).
But as we
stated in Amos, we respectfully disagree with these circuits’
decisions. 790 F.3d at 519.
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give Chevron deference to Esquivel-Quintana for the same reason
we declined to give it to Rodriguez–Rodriguez:

the BIA did not

adopt a federal generic definition of “sexual abuse of a minor.”
Indeed, the Sixth Circuit confirmed that the BIA’s approach is
“to interpret [‘sexual abuse of a minor’] through case-by-case
adjudication.”

Esquivel-Quintana, 810 F.3d at 1026.

In sum, the BIA here issued a nonprecedential decision to
which we need not defer.

The BIA did rely on a precedential

decision, Esquivel-Quintana, that might guide our review, but we
already held in Amos that this approach is not due any Chevron
deference.
deference

Therefore,
to

either

the

we

are

not

BIA’s

required

opinion

here

to

give

or

to

Chevron

Esquivel-

Quintana. 7
We are thus left to consider the BIA’s determination that
§ 3-307(a)(3) constitutes “sexual abuse of a minor” under the
INA using the principles outlined in Skidmore v. Swift & Co.,
323

U.S.

134

(1944).

Under

the

Skidmore

framework,

which

prescribes a more modest amount of deference, “we may defer to

7

The BIA’s other findings in Esquivel-Quintana are entitled
to Chevron deference, but they do not concern the issue here.
These include that (1) the generic federal offense of “sexual
abuse of a minor” requires a meaningful age difference between
the victim and the perpetrator, and (2) California Penal Code
§ 261.5(c) categorically constitutes “sexual abuse of a minor”
under § 1101(a)(43)(A) of the INA.
Esquivel-Quintana, 26 I. &
N. Dec. at 477.

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the agency’s opinion, based on the agency’s ‘body of experience
and informed judgment,’” but “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.”

Amos, 790

F.3d at 521 (quoting Skidmore, 323 U.S. at 140).
We are not persuaded by the BIA’s analysis.
could

answer

the

question

whether

a

Before the BIA

conviction

under

§ 3-

307(a)(3) constitutes the aggravated felony of “sexual abuse of
a

minor,”

it

had

to

compare

§ 3-307(a)(3)’s

elements of the federal offense.

elements

to

the

But here, the BIA did not

establish the elements of the federal offense.

In fact, it did

not even explain what federal definition it was using.

Instead,

the BIA compared § 3-307(a)(3)’s elements to the elements of a
California statute that was found to constitute “sexual abuse of
a minor.”
This approach is problematic for two reasons.

First, the

California statute was found to be a categorical match using the
Rodriguez-Rodriguez framework, which we have held is neither due
any

deference

tool.

nor

is

particularly

useful

See Amos, 790 F.3d at 521-22.

as

an

interpretive

And second, the Supreme

Court has made clear that the categorical approach requires a
comparison of the elements of the state statute of conviction to
the elements of the generic federal offense, see Moncrieffe, 133
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S. Ct. at 1684, not to the elements of another state’s statute
of conviction.
elements

of

California

By attempting to fit § 3-307(a)(3) within the

a

California

law

to

statute,

determine

the

whether

BIA
a

essentially

Maryland

used

conviction

constituted a removable offense under federal law.
Even if this type of statutory comparison was a reasonable
way

to

determine

whether

§ 3-307(a)(3)

matches

the

generic

federal definition of “sexual abuse of a minor,” the BIA erred
in

its

analysis.

It

failed

to

determine

what

conduct

the

California statute encompassed and whether that conduct was also
proscribed by § 3-307(a)(3).

Had the BIA done so, it might have

seen its mistake.
The BIA concluded that because the “offense [in EsquivelQuintana] with the elements of ‘(1) unlawful sexual intercourse
(2) with a minor under 18 years old (3) who is more than 3 years
younger than the perpetrator’ categorically constitutes sexual
abuse

of

younger

a

minor,”

victim

corresponding

then

and

elements

a

§ 3-307(a)(3),
greater

in

the

age

statute

which

“include[s]

difference
at

issue

in

than
Matter

a

the
of

Esquivel-Quintana,” also constitutes “sexual abuse of a minor”
under the INA.
that

the

A.R. 4-5.

‘sexual

potentially

be

contact’
less

The BIA held this “notwithstanding
proscribed

egregious

intercourse’” in Esquivel-Quintana.
21

than

by

[§ 3-307(a)(3)]

the

Id. at 5.

‘unlawful

may

sexual

This is entirely

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That § 3-307(a)(3) criminalizes “potentially . . .

less egregious” conduct than the California statute in EsquivelQuintana is precisely the reason that the California statute has
no

utility

as

a

comparator--and

in

fact

suggests

that

§ 3-

307(a)(3) is more likely not to constitute the generic federal
offense.
Ultimately, we conclude that the BIA’s decision on this
question

is

not

entitled

to

Skidmore

deference.

While

we

recognize that the agency has a wealth of immigration expertise,
we find that the BIA was neither thorough in its analysis, valid
in its reasoning, nor consistent with precedent in the BIA or
the Fourth Circuit.

See Amos, 790 F.3d at 521 (citing Skidmore,

323 U.S. at 140).

Accordingly, we proceed to consider this

question

of

law

de

novo,

without

deferring

to

the

BIA’s

determinations in this case.
C.
We begin by defining “sexual abuse of a minor.”

We agree

with the petitioner that this Court has already established a
generic federal definition of “sexual abuse of a minor” in the
sentencing context and that the definition is equally applicable
here.

In United States v. Diaz-Ibarra, we defined “sexual abuse

of a minor” for purposes of applying the Sentencing Guidelines.
522

F.3d

343

(4th

Cir.

2008).

We

looked

to

the

Eleventh

Circuit’s reasoning in United States v. Padilla-Reyes, 247 F.3d
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1158 (11th Cir. 2001), an immigration case, and we adopted that
court’s definition wholesale.

See Diaz-Ibarra, 522 F.3d at 351-

52.
In Padilla-Reyes, the court looked to the common meaning of
the phrase “sexual abuse of a minor.”
determined

that

it

made

more

sense

247 F.3d at 1163-64.
to

consider

the

It

phrase’s

plain meaning than to cross-reference other federal statutes,
because “where Congress intended an aggravated felony subsection
to depend on federal statutory law it explicitly included the
statutory

cross-reference,”

and

so

“the

lack

of

an

explicit

statutory reference in the § 1101(a)(43)(A) subsection indicates
Congress’s intent to rely on the plain meaning of the terms.”
Id. at 1164.
The

Padilla-Reyes

relevant

definitions

court

for

explained

abuse,

that

Webster’s

“[a]mong

includes

the

‘misuse[;]

. . . to use or treat so as to injure, hurt, or damage[;] . . .
to

commit

indecent

assault

on[;]

. . .

the

act

of

violating

sexually[;] . . . [and] rape or indecent assault not amounting
to rape.’”
‘of

or

Id. at 1163.

relating

to

the

libidinal gratification.’”

And “for sexual, Webster’s includes
sphere
Id.

of

behavior

associated

with

The court concluded that “the

word ‘sexual’ in the phrase ‘sexual abuse of a minor’ indicates
that the perpetrator’s intent in committing the abuse is to seek
libidinal gratification,” and that the common understanding of
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“abuse” in this context is that it does not require physical
contact.
‘sexual

Id.

The court therefore concluded that “the phrase

abuse

nonphysical

of

a

misuse

minor’
or

means

a

maltreatment

perpetrator’s
of

associated with sexual gratification.”
Significantly,
crafted

the

immigration

definition

to

Eleventh
of

context--under

Diaz-Ibarra,
applies

the

we

held

“sexual

Guidelines.

that

abuse

a

minor

abuse

in

of

§ 1101(a)(43)(A)
the
of

a
of

Padilla-Reyes
a

522 F.3d at 351-52.

for

a

or

purpose

Id.

Circuit

“sexual

physical

minor”

under

Padilla-Reyes
minor”
the

in

the

INA.

In

definition

also

the

Sentencing

In doing so, we implied that

the federal generic definition of “sexual abuse of a minor” is
the same in the sentencing and immigration contexts.
This

is

further

confirmed

by

the

Commentary

to

the

Sentencing Guidelines in effect at the time, which stated that
“aggravated felony” under the Guidelines “has the meaning given
that

term

Nationality

in
Act

section
(8

101(a)(43)

U.S.C.

of

the

§ 1101(a)(43)).”

Immigration
U.S.

and

Sentencing

Guidelines Manual § 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n
2007). 8

Because the crime is the same under the Sentencing

Guidelines and the INA, the definition of “sexual abuse of a

8

The current Commentary to the Sentencing Guidelines
retains this language.
See U.S. Sentencing Guidelines Manual
§ 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n 2015).
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minor” adopted by this Court in the sentencing context is also
applicable in the immigration context. 9

And this makes sense,

because the utility of a “generic” definition is that it applies
in different contexts.

To find otherwise would mean “sexual

abuse of a minor” has multiple “generic” federal definitions, an
outcome

that

ordinarily

will

contravene

both

the

categorical

approach’s governing principles and common sense.
We now hold that the generic federal definition of “sexual
abuse of a minor” set forth in Diaz-Ibarra is applicable to the
INA.

Therefore, under the INA, “‘sexual abuse of a minor’ means

the

‘perpetrator’s

physical

or

nonphysical

misuse

or

maltreatment of a minor for a purpose associated with sexual
gratification.’”

Diaz-Ibarra, 522 F.3d at 352 (quoting Padilla-

Reyes, 247 F.3d at 1163).
of

the

federal

generic

And because we now have a definition
offense,

9

we

can

determine

whether

a

The Fifth Circuit has made a similar observation in an
unpublished opinion.
See Ramos-Garcia v. Holder, 483 F. App’x
926, 929 n.14 (5th Cir. 2012) (acknowledging that “[m]ost of the
cases discussing the definition of ‘sexual abuse of a minor’
under § 1101(a)(43) do so in a sentencing rather than an
immigration context,” but noting that it could find “no reason
. . . why those cases are not applicable [to the INA] for
purposes of determining the generic meaning of ‘sexual abuse of
a minor’ under the same statutory provision”).
And in two
unpublished opinions, we have applied the Diaz-Ibarra definition
to “sexual abuse of a minor” under the INA.
See Waffi v.
Mukasey, 285 F. App’x 26, 27 (4th Cir. 2008) (using DiazIbarra’s definition of “sexual abuse of a minor” to determine
whether the statute at issue categorically matched the offense
under the INA); Alvarado v. Holder, 398 F. App’x 942, 943 (4th
Cir. 2010) (same).
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conviction under § 3-307(a)(3) categorically qualifies as that
federal offense.
D.
We reiterate that at this step in the analysis, our task is
to compare statutory elements only.
Larios-Reyes’s

actual

conduct

We do not consider whether

constitutes

“sexual

abuse

of

a

minor”; we ask only whether § 3-307(a)(3) matches the generic
federal definition.

Shepard documents serve the limited purpose

of clarifying which element or set of elements create the basis
for the conviction.

They have no role to play in our subsequent

comparison of that portion of the statute to the generic federal
offense.

Accordingly, we now turn to consider the scope of § 3-

307(a)(3)’s elements.
Under Maryland law, “‘sexual contact,’ as used in [§] 3307[(a)(3)]

. . . ,

means

an

intentional

touching

of

the

victim’s or actor’s genital, anal, or other intimate area for
sexual

arousal

party.”
added).

Md.

or

gratification,

Code

Ann.,

Crim.

or

for

Law

the

abuse

of

§ 3-301(e)(1)

either

(emphasis

“Sexual contact” is defined in the disjunctive, meaning

that there are multiple ways to accomplish it.

Maryland courts

have held that the State need not show that a defendant acted
for

the

purpose

of

sexual

gratification

in

order

to

be

convicted, because acting for such a purpose is just one of the
ways

that

a

defendant’s

conduct
26

might

constitute

“sexual

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contact.”
(Md.

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See, e.g., Dillsworth v. State, 503 A.2d 734, 737

Ct.

Spec.

(rejecting

App.

1986),

defendant’s

aff’d,

argument

519

that

A.2d
his

1269

(Md.

conduct

1987)

did

not

constitute “sexual contact” because there was no evidence that
he acted for the purpose of “sexual arousal or gratification,”
and

stating

that

“[t]o

include

the

necessity

to

show

sexual

arousal or gratification as a requisite of ‘abuse’ would be to
require an unnecessary redundancy--to use the words ‘for abuse’
in vain”).

A showing that a defendant acted with the intent to

abuse could also sustain a conviction.
The

Maryland

Court

of

Special

Appeals

has

interpreted

“abuse” in § 3-307 as not limited to “a physical attack intended
to inflict sexual injury.”
Ct. Spec. App. 2009).
‘abuse’

[under

LaPin v. State, 981 A.2d 34, 43 (Md.

Rather, “a touching for the purpose of

§ 3-307]

refers

to

a

wrongful

touching,

a

touching of another person’s intimate area for a purpose that is
harmful, injurious or offensive.”
Appeals
intimate

has

further

area

recognized

within

the

Id.
that

meaning

of

The Maryland Court of
“the

buttocks

[§] 3–301[],”

are

an

finding

specifically that “[t]he touching of the buttocks is therefore
proscribed by [§] 3–307(a)(3).”
358 (Md. 2009).
§ 3-307(a)(3)

Bible v. State, 982 A.2d 348,

Hence, a conviction could be sustained under

based

on

an

adult’s

intentional

touching

of

a

minor’s buttocks for a “harmful, injurious or offensive”--but
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not sexually gratifying--purpose.

See Alfaro, 835 F.3d at 473

n.1 (recognizing this interpretation of “sexual contact” as used
in § 3-307).
Under the federal generic definition of “sexual abuse of a
minor,” acting for the purpose of sexual gratification is an
element of the offense.
“sexual

abuse

of

a

Indeed, in Alfaro, we emphasized that

minor”

as

defined

in

Diaz-Ibarra

“is

a

‘broad’ phrase ‘capturing physical or nonphysical conduct,’ and
it is the sexual-gratification element that polices the line
between lawful and unlawful conduct.”

Alfaro, 835 F.3d at 476

(quoting United States v. Perez–Perez, 737 F.3d 950, 953 (4th
Cir. 2013)) (citation omitted).

We went on, “[T]he intent to

gratify sexual urges is central to the offense of sexual abuse
of a minor . . . and therefore is part of the ordinary meaning
of the phrase ‘sexual abuse.’”

Id. at 476-77.

In Maryland, a perpetrator need not act for the purpose of
sexual

gratification

307(a)(3).

in

order

to

be

convicted

under

§ 3-

Acting for the purpose of abuse is enough.

And

Maryland’s appellate courts have interpreted “abuse” to include
much more conduct than what the INA criminalizes.

Because we

are constrained by Maryland’s interpretation of the scope of its
own laws, see Castillo, 776 F.3d at 268, we find that § 3307(a)(3) is broader than the federal generic offense of “sexual
abuse of a minor.”

Accordingly, we hold that a conviction for
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“Third Degree Sex Offense” under Maryland Criminal Law Article
§ 3-307(a)(3)

does

not

constitute

the

aggravated

felony

of

“sexual abuse of a minor” under § 1101(a)(43)(A) of the INA.

III.
The BIA erred as a matter of law in finding that LariosReyes’s conviction under Maryland Criminal Law Article § 3-307
constitutes the aggravated felony of “sexual abuse of a minor”
under the INA.

We therefore grant Larios-Reyes’s petition for

review, vacate the order of removal, and order his immediate
release from DHS Custody.
PETITION FOR REVIEW GRANTED
AND ORDER OF REMOVAL VACATED

29