The 4th Circuit vacates a removal order for a Filipino native who is a lawful permanent resident with a 1990 Maryland conviction for “causing abuse to a child,” which does not qualify as an “aggravated felony” under federal sentencing guidelines.
The Board of Immigration Appeals determined petitioner’s 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.
The principles of deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), do not apply to the board’s decision in petitioner’s case because, although issued by a three-judge panel of the BIA, it was an unpublished opinion that does not carry precedential weight. However, the BIA relied in this case on Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), a precedential BIA decision to which Chevron deference can apply.
The BIA discussed in Rodriguez-Rodriguez a statute providing procedural protections for child victims and witnesses, 18 U.S.C. § 3509(a)(8). The BIA observed that this statute defines “sexual abuse” more broadly as the employment, 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. Three of our sister circuits have concluded that the BIA, in its discussion of § 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.
Respectfully, we disagree with this conclusion reached by our sister circuits. The BIA expressly stated it was not adopting § 3509(a)(8) as a definitive standard or definition for purposes of application in Subsection A. Instead, the BIA invoked the definition in § 3509(a)(8) as a guideline. We conclude the BIA did not adopt in Rodriguez-Rodriguez a particular definition of the generic federal crime of sexual abuse of a minor for application of Subsection A.
We are not persuaded by the BIA’s analysis or its conclusion that the term “sexual abuse of a minor” under Subsection A necessarily encompasses the failure to act to prevent sexual abuse, the least culpable conduct under the former Maryland statute. We therefore hold that the BIA erred as a matter of law in concluding that petitioner’s conviction of child abuse under the former Maryland statute qualifies as an aggravated felony under Subsection A.
Petition for review granted, and order of removal vacated.
Amos v. Lynch (Keenan) No. 13-2005, June 10, 2015; On Petition for Review; Jay S. Marks for petitioner; Rebecca H. Phillips, USDOJ, for respondent. VLW 015-2-094, 23 pp.