PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4741
MARIO RESTREPO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Final Order of
the Board of Immigration Appeals
(Agency No. A041-383-831)
Argued January 26, 2010
Before: FUENTES and FISHER, Circuit Judges,
and CONNER,* District Judge.
*
Honorable Christopher C. Conner, United States District
Judge for the Middle District of Pennsylvania, sitting by
designation.
(Filed: August 16, 2010)
Thomas E. Moseley, Esq. [ARGUED]
One Gateway Center
Suite 2600
Newark, NJ 07102
Counsel for Petitioner
Liza S. Murcia, Esq. [ARGUED]
Ari Nazarov, Esq.
Jennifer P. Williams, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
CONNER, District Judge.
Petitioner Mario Restrepo (“Restrepo”), a native and
citizen of Colombia and a lawful permanent resident of the
United States, filed the instant petition to prevent his removal
from this country based on the determination of the Board of
2
Immigration Appeals (“BIA”) that he committed an “aggravated
felony” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C.
§ 1101(a)(43)(A). In 1994, Restrepo was convicted of
“aggravated criminal sexual contact” under N.J. Stat. Ann.
§ 2C:14-3(a). Restrepo argues that this conviction does not
qualify as an aggravated felony under the Immigration and
Nationality Act (“INA”). We disagree and, as a result, we
conclude that we lack jurisdiction to review the BIA’s final
order of removal. See 8 U.S.C. § 1252(a)(2)(C). Restrepo also
contends that the removal proceedings brought against him are
time-barred, for they did not commence until a decade after his
conviction was imposed. We reject this argument as well and
we will dismiss Restrepo’s petition.
I.
On March 22, 1994, Restrepo’s daughter, Lina, was
interviewed by the police. She disclosed that on several
occasions her father had touched her breast and vagina through
her clothing with his hands. Police questioned Restrepo about
these accusations and he admitted that he first touched his
daughter inappropriately in 1990, and he had done so
intermittently for the next four years. Restrepo was charged
with third degree aggravated criminal sexual contact in violation
of N.J. Stat. Ann. § 2C:14-3(a). Under this statutory provision,
“[a]n actor is guilty of aggravated criminal sexual contact if he
commits an act of sexual contact with the victim under any of
the circumstances set forth in 2C:14-2(a)(2) through (7).” N.J.
Stat. Ann. § 2C:14-3(a). Restrepo pled guilty to a state
indictment which charged that he committed aggravated sexual
contact with a victim of at least thirteen years of age, but less
than sixteen years of age, a violation of 2C:14-2(a)(2). He was
3
sentenced to 364 days in prison and five years’ probation.
Restrepo has no criminal history which post-dates this
conviction.
In 2004, ten years after his guilty plea, the United States
Department of Immigration and Custom Enforcement
(“USICE”) served Restrepo with a notice to appear and charged
him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for
commission of an aggravated felony, to wit: sexual abuse of a
minor. Restrepo admitted the factual allegations contained in
the notice to appear and conceded removability as charged, but
he applied for a waiver of removability. A hearing on
Restrepo’s waiver request was held on December 23, 2004, after
which the immigration judge found that Restrepo was
removable and denied his application for waiver. Restrepo
appealed this decision, and the BIA affirmed on February 17,
2006. Restrepo filed a petition for review, and he also filed a
motion to reopen proceedings with the BIA, requesting that the
BIA adjust his status to that of a lawful resident pursuant to 8
U.S.C. § 1255. The BIA denied Restrepo’s motion to reopen on
July 20, 2006. Thereafter, Restrepo filed a second petition with
this Court, seeking review of the BIA’s July 20 order. On
August 11, 2006, the Court consolidated the petitions. The
government then filed an unopposed motion for remand to the
BIA on October 12, 2006. This motion was granted on April 11,
2007, and the BIA reaffirmed the decision of the immigration
judge on November 30, 2007. Restrepo now presents the instant
petition.
II.
We have jurisdiction to review final orders of removal
4
pursuant to 8 U.S.C. § 1252(a). Congress has stripped the Court
of jurisdiction, however, to review an order to remove an alien
who commits an aggravated felony. See § 1252(a)(2)(C). We
nonetheless retain jurisdiction to address this jurisdictional
prerequisite—or, more precisely, “whether an alien was
convicted of a non-reviewable aggravated felony.” Stubbs v.
Att’y Gen., 452 F.3d 251, 253 n.4 (3d Cir. 2006). The question
of whether an alien’s offense constitutes an aggravated felony
is reviewed de novo as it implicates a purely legal question that
governs the appellate court’s jurisdiction. See Valansi v.
Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). In addition, we
possess jurisdiction to hear “constitutional claims and questions
of law presented in petitions for review of final removal orders,”
even for those aliens convicted of an aggravated felony.
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).
Our review of such claims is de novo. See De Leon-Reynoso v.
Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002). Restrepo’s statute
5
of limitations claim falls into this latter category.1 Finally, in the
proceedings below, the BIA adopted and affirmed the decision
of the immigration judge and provided additional reasoning in
support of its decision. Thus, we will review both the decision
of the immigration judge and the decision of the BIA. See Chen
v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
III.
This petition presents two principal issues for our
1
Somewhat surprisingly, Restrepo also requests that we
remand his case to the BIA for disposition of his application to
adjust his status to that of a lawful resident. We note that the
BIA previously addressed this issue. It concluded that Restrepo
failed to show that he was eligible for a status adjustment when
it denied his motion to reopen. Moreover, the BIA found
Restrepo inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) for
engaging in “acts which constitute the essential elements of a
crime involving moral turpitude” and it noted that it had already
held that Restrepo could not obtain a § 212 waiver of
removability. Restrepo contends that these holdings were
erroneous.
We lack jurisdiction to review the BIA’s denial of
Restrepo’s application. Under 8 U.S.C. § 1252(a)(2)(B), “no
court shall have jurisdiction to review—(i) any judgment
regarding the granting of relief under section . . . 245 [8 U.S.C.
§ 1255, dealing with adjustment of status], or (ii) any other
decision or action of the Attorney General . . . the authority for
which is specified . . . to be in the discretion of the Attorney
General[.]”
6
consideration: (1) whether Restrepo is removable for conviction
of an aggravated felony—specifically, sexual abuse of a minor,
and (2) whether the removal proceedings against Restrepo are
time-barred. The Court will address these issues in turn.
A. Was Restrepo Convicted of an Aggravated Felony?
The INA provides that “[a]ny alien who is convicted of
an aggravated felony at any time after admission is deportable.”
8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony”
applies not only to federal offenses, but also to violations of
state law. See 8 U.S.C. § 1101(a)(43); Carachuri-Rosendo v.
Holder, ___ U.S. ___, 177 L. Ed. 2d 68, 78 n.1 (Sup. Ct. June
14, 2010). The INA defines aggravated felony to include, inter
alia, “murder, rape, or sexual abuse of a minor.” 8 U.S.C.
§ 1101(a)(43)(A). The question sub judice is whether a
conviction for aggravated criminal sexual contact, in violation
of N.J. Stat. Ann. § 2C:14-3(a), constitutes the aggravated
felony of sexual abuse of a minor under the INA.
The Supreme Court has recognized that several of the
offenses listed in the INA—including sexual abuse of a
minor—do not refer to “specific acts in which an offender
engaged on a specific occasion,” or “the specific way in which
an offender committed the crime,” but rather, they “must refer
to generic crimes.” Nijhawan v. Holder, U.S. , 129 S.
Ct. 2294, 2298, 2300 (2009). Accordingly, we employ the
“categorical approach” of Taylor v. United States, 495 U.S. 575
(1990), to determine whether an alien’s conviction constitutes
sexual abuse of a minor under the INA. Nijhawan, U.S. at
, 129 S. Ct. at 2300. The categorical approach requires a two
step analysis: first, we must ascertain the definition for sexual
7
abuse of a minor, and second, we must compare this “federal”
definition to the state statutory offense in question—in this case,
aggravated criminal sexual contact under N.J. Stat. Ann.
§ 2C:14-3(a). See Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir.
2004). Ordinarily, the categorical approach “prohibits
consideration of evidence other than the statutory definition of
the offense, thus precluding review of the particular facts
underlying a conviction.” See Stubbs, 452 F.3d at 253-54
(citing Singh, 383 F.3d at 147-48). However, where, as here, “a
statute criminalizes different kinds of conduct, some of which
would constitute [aggravated felonies] while others would not,
the court must apply a modified categorical approach by which
a court may look beyond the statutory elements to determine the
particular part of the statute under which the defendant was
actually convicted.” United States v. Stinson, 592 F.3d 460, 462
(3d Cir. 2010). If conduct that meets the federal definition of
sexual abuse of a minor is necessary for a conviction under N.J.
Stat. Ann. § 2C:14-3(a), then Restrepo’s conviction under N.J.
Stat. Ann. § 2C:14-3(a) qualifies as a conviction for sexual
abuse of a minor and, by extension, an aggravated felony for
which he is removable. See Singh, 383 F.3d at 153 (“Of course
it is irrelevant that sexually abusing a minor may be sufficient
for conviction under the statute; what matters is whether such
conduct is necessary for such a conviction.” (emphasis in
original)). If, however, the offense prohibited by N.J. Stat. Ann.
§ 2C:14-3(a) is categorically broader than the federal definition
of sexual abuse of a minor, then Restrepo’s conviction does not
render him removable.
1. Defining Sexual Abuse of a Minor
Our first task is to define the phrase “sexual abuse of a
8
minor,” as used in § 1101(a)(43). The INA contains no
definition of this phrase, but three United States Code
sections—18 U.S.C. §§ 2242, 2243, and 3509(a)—include
definitions of sexual abuse. Restrepo asserts that the proper
definition of sexual abuse of a minor appears in § 2243. The
government disagrees and contends that the definition of sexual
abuse of a minor is not clear and unambiguous. Thus, the
government argues that we must apply Chevron deference to the
BIA’s interpretation of this phrase, which is set forth in Matter
of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999).
Under the familiar principles of Chevron, “considerable weight
should be accorded to an executive department’s construction of
a statutory scheme it is entrusted to administer.” 2 Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
844 (1984). Furthermore, we have explained that Chevron
deference applies in general to the legislative framework erected
by the INA. Drakes v. Zimski, 240 F.3d 246, 250 (3d Cir.
2001).
When confronted with a potential Chevron application,
we administer a three-step analysis. First, we examine the
language of the statute to ascertain whether its meaning is plain
and unambiguous in light of the specific dispute at hand. Lee v.
2
By statute, the Attorney General is entrusted with the
administration and enforcement of the INA, which states that the
“determination and ruling by the Attorney General with respect
to questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1).
The Attorney General, in turn, has delegated this authority to the
BIA. 8 C.F.R. § 3.1(d)(1).
9
Ashcroft, 368 F.3d 218, 222 (3d Cir. 2004). When the language
of the statute is clear, our inquiry ends. Steele v. Blackman, 236
F.3d 130, 133 (3d Cir. 2001). When it is unclear, we must
endeavor to discern congressional intent by utilizing various
tools of statutory construction. Lee, 368 F.3d at 222. If this
endeavor is unsuccessful, we may defer to the interpretation of
the statute derived by the appropriate executive agency,
provided that the interpretation is reasonable. Id.; see also
Steele, 236 F.3d at 133 (noting general applicability of Chevron
deference to BIA interpretations of the INA).
Section 1101(a)(43)(A) defines “aggravated felony” to
include “murder, rape, or sexual abuse of a minor.” The INA
provides no further definition or cross reference expounding the
phrase “sexual abuse of a minor” except to state that it “applies
to an offense . . . whether in violation of Federal or State law.”
8 U.S.C. § 1101(a)(43).
In the past we have observed that, as a matter of general
structure and context, several subsections in § 1101(a)(43)
define aggravated felonies by cross-referencing particular
criminal provisions of the United States Code and by providing
parenthetical explanations. See Patel v. Ashcroft, 294 F.3d 465,
470-71 & n.7 (3d Cir. 2002). For example, § 1101(a)(43)(M)
defines as an aggravated felony “an offense that . . . involves
fraud or deceit in which the loss to the victim or victims exceeds
$10,000[,] or . . . is described in section 7201 of Title 26
(relating to tax evasion) in which the revenue loss to the
Government exceeds $10,000[.]” We have explained that the
parenthetical explanations in these particular subsections are
descriptive in nature, and “intended only as a general illustration
of the referenced criminal statutes,” to “assist the reader who is
10
attempting to determine whether a particular offense constitutes
an aggravated felony.” Patel, 294 F.3d at 471.
In other § 1101(a)(43) subsections, explanatory
parentheticals serve to restrict or limit those offenses which may
constitute an aggravated felony under the INA. See id. at 472.
For example, § 1101(a)(43)(F) defines as an aggravated felony
“a crime of violence (as defined in section 16 of title 18, United
States Code, but not including a purely political offense) for
which the term of imprisonment [is] at least one year.” Thus,
when Congress intended to remove certain behavior from the
INA’s ambit, it did so by incorporating a restrictive, rather than
descriptive, parenthetical.
Section 1101(a)(43)(A) is devoid of any descriptive or
restrictive parentheticals and simply lists the crimes of “murder,
rape, or sexual abuse of a minor” without further definition.
When contrasted with the structure of the statute as a whole,
such an omission is instructive, for it is typically understood that
the legislature proceeds purposefully when it inserts specific
language in one statutory section but omits it in another. See
Sandoval v. Reno, 166 F.3d 225, 241 (3d Cir. 1999). In other
§ 1101(a)(43) sections, Congress specified certain aggravated
felonies by cross-referencing criminal statutory provisions. The
fact that it did not do so with “sexual abuse of a minor”
indicates that it intended that the phrase be given its common
law definition.3 See Drakes, 240 F.3d at 249 (explaining that
3
As is discussed below, in Rodriguez-Rodriguez, the
BIA took note of the common definition of “sexual abuse of a
minor” before invoking the federal definition found in § 3509.
11
“[w]here federal criminal statutes use words of established
meaning without further elaboration, courts typically give those
terms their common law definition”). Alternatively, Congress
may have intended for the BIA to utilize its expertise to define
the phrase, see Chevron, 467 U.S. at 843-44 (“If Congress has
explicitly left a gap for the agency to fill, there is an express
delegation of authority to the agency to elucidate a specific
provision of the statute by regulation.”), or it may have inserted
the generic phrase because the definition of sexual abuse of a
minor varies by state and federal law, see United States v.
Zavala-Sustaita, 214 F.3d 601, 605-06 (5th Cir. 2000)
(explaining that because sexual abuse of a minor lacks legal
specificity, it is less likely that Congress intended a narrow
reading of the phrase). In any case, the pertinent point is that the
precise definition of the phrase is most assuredly not clear and
unambiguous.
According to Restrepo, the legislative history underlying
the INA evidences an intent to define sexual abuse of a minor by
reference to the federal criminal definition contained in § 2243.
The thrust of Restrepo’s argument centers upon timing; he
deems it significant that Congress amended the definition
section of § 2243 in the same legislation that amended
§ 1101(a)(43)(A) to include sexual abuse of a minor as an
12
aggravated felony.4 Restrepo asserts that “identical words used
in different parts of the same act are intended to have the same
meaning.” Dep’t of Revenue v. ACF Indus., 510 U.S. 332, 342
(1994) (quoting Sorenson v. Sec’y of Treasury, 475 U.S. 851,
860 (1986). This maxim is inapplicable to the legislative
enactment at issue, which was omnibus legislation. Restrepo’s
argument seeks to conjoin the meaning of words used in
separate and distinct statutes. Omnibus legislation often
involves the combination of disparate matters into a single bill,
the unitary packaging of which may be designed to present the
executive with an all-or-nothing signing decision. See Black’s
Law Dictionary 186 (9th ed. 2009) (defining “omnibus bill” as
a “single bill containing various distinct matters, usually drafted
in this way to force the executive either to accept all the
unrelated minor provisions or to veto the major provision”). In
4
Congress amended the definition of “sexual abuse of a
minor” contained in 18 U.S.C. § 2243 when it passed the Amber
Hagerman Child Protection Act of 1996 (hereinafter, the
“Amber Hagerman Act”). See Amber Hagerman Child
Protection Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-31
(codified at 18 U.S.C. § 2241). The Amber Hagerman Act was
enacted as part of the Omnibus Consolidated Appropriations Act
of 1997, Pub. L. 104-208, 110 Stat. 3009-1. In a separate
portion of the omnibus bill, Congress amended
§ 1101(a)(43)(A), inserting “sexual abuse of a minor” alongside
“murder” and “rape.” See H.R. Rep. No. 104-828, at 83 (1996)
(Conf. Rep.). Amendment of § 1101(a)(43)(A) was part of the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”).
13
most instances, there is a broad spectrum of congressional intent
in play across the distinct statutes that comprise the larger
enactment.5 Hence, Restrepo’s statutory construction argument
is unavailing.
Restrepo also asserts that the definition of aggravated
felony set forth in § 1101(a)(43)(A) subsumes an element of
violence. He invokes the rule of noscitur a sociis, which
construes an ambiguous word in the context of the words
surrounding it. Black’s Law Dictionary 1160-61 (9th ed. 2009).
Restrepo contends that violence is an integral element of murder
and rape and, therefore, it must also be an integral element of
sexual abuse of a minor. Considering the broader context of the
legislation at issue, this contention is unpersuasive. See Lee,
368 F.3d at 222 (counseling courts to examine the statutory
language, as well as “the broader context of the statute as a
whole”); see also Kelly v. Robinson, 479 U.S. 36, 43 (1986) (“In
expounding a statute, we must not be guided by a single
sentence or member of a sentence, but look to the provisions of
5
A quick perusal of the omnibus legislation in question
illustrates this point. The primary purpose of the bill is to
appropriate monies for the fiscal year ending September 30,
1997. See Omnibus Consolidated Appropriations Act, 1997,
Pub. L. 104-208, 110 Stat. 3009-1. However, the bill also
amends, inter alia, the Age Discrimination in Employment Act
and the Privacy Protection Act, and enacts, inter alia, the Child
Pornography Prevention Act of 1996 and the Amber Hagerman
Act. It is simply unreasonable to assume that Congress
legislated with uniform intent across such disparate statutes.
14
the whole law, and to its object and policy.”). When Congress
amended § 1101(a)(43)(A) to include sexual abuse of a minor,
it simultaneously amended the INA to classify crimes of
domestic violence, stalking, child abuse, child neglect, and child
abandonment as grounds for deportability. See Pub. L. No. 104-
208, 110 Stat. 3009-639-40 (codified at 8 U.S.C.
§ 1227(a)(2)(E)). The House conference report specifically
connected these two amendments, explaining that
an alien convicted of crimes of domestic
violence, stalking, or child abuse is deportable.
The crimes of rape and sexual abuse of a minor
are elsewhere classified as aggravated felonies
under INA section 101(a)(43), thus making
aliens convicted of those crimes deportable and
ineligible for most forms of immigration benefits
or relief from deportation.
H.R. Rep. No. 104-828, at 83 (1996) (Conf. Rep.). As this
passage illustrates, Congress intended to expand both the
protections afforded to minors and the penalties applicable to
15
aliens who commit crimes against minors.6 Accordingly, it
would be counterintuitive to require an element of violence and
limit the definition of sexual abuse of a minor to those offenses
appearing in § 2243. This construction would exempt from
§ 1101(a)(43)(A) numerous offenses which are considered
6
Our recourse to legislative history is appropriate in this
matter. When “statutory language does not express Congress’s
intent unequivocally, a court traditionally refers to the legislative
history and the atmosphere in which the statute was enacted in
an attempt to determine the congressional purpose.” White v.
Lord Abbett & Co. LLC, 553 F.3d 248, 254 (3d Cir. 2009)
(quoting United States v. Gregg, 226 F.3d 253, 257 (3d Cir.
2000)). We are, of course, aware that exclusive reliance upon
legislative history is not preferred, and we have surveyed the
relevant legislative history with caution. See Morgan v. Gay,
466 F.3d 276, 278 (3d Cir. 2006) (stating that reliance “on
legislative history to discern legislative intent should be done
with caution, if at all”). In the present matter, the House
conference report is useful because it suggests that Congress
intended to implement comprehensive protections for minor
victims that were expansive in nature. This reading comports
with the structure of § 1101(a)(43)(A), which purposefully
leaves murder, rape, and sexual abuse of a minor undefined. In
addition, it is consistent with the BIA’s interpretation of sexual
abuse of a minor, a factor which is relevant in the third step of
the Chevron inquiry. See infra pp. 15-17.
16
sexual abuse of a minor under state law;7 such a reading does
not comport with the legislative history examined above and the
7
For example, under New Jersey law, aggravated
criminal sexual contact consists of an act of sexual
contact—defined as “an intentional touching by the victim or
actor, either directly or through the clothing, of the victim’s or
actor’s intimate parts”—upon a victim that is at least thirteen but
less than sixteen years of age. See N.J. Stat. Ann. §§ 2C:14-1,
2C:14-2. In Pennsylvania, an actor may be guilty of indecent
assault, which is defined as a “sexual offense,” if he or she
touches any of the “sexual or other intimate parts” of a person
under the age of thirteen or, alternatively, under the age of
sixteen when the offender is four or more years older than the
victim. See 18 Pa. Cons. Stat. § 3126. Under Delaware law, an
individual is guilty of unlawful sexual contact in the second
degree when he or she intentionally touches another person
under the age of eighteen on the anus, breast, buttocks or
genitalia and the touching occurs through the clothing. See Del.
Code Ann. 11, §§ 761, 768. Each of these criminal provisions
proscribes touching through the clothing. However, § 2243
specifically exempts touching through the clothing from the
range of defined criminal conduct. Thus, were we to accept
Restrepo’s interpretation of § 1101(a)(43)(A), none of the
above-described acts—all of which are defined as criminal sex
acts against minors—would qualify as an aggravated felony
under the INA.
17
broader context in which the statute was enacted.8
We have carefully examined the text of § 1101(a)(43)(A),
the precise context in which its language is used, and the larger
framework underlying the statute’s purpose. Our inquiry leaves
us in a state of interpretive uncertainty, and we are unable to
8
Congress amended § 1101(a)(43)(A) as part of the
IIRIRA. See supra note 4. It is undeniable that the overarching
purpose of this statute is to augment the procedures for removal
of aliens who are convicted of felony offenses. For example,
the enactment mandates detention pending deportation, 8
U.S.C. § 1231; withdraws judicial discretion to impose
probation or to suspend a sentence when the offense of
conviction requires deportation, see § 1101(a)(48); facilitates
removal on an expedited basis, § 1228; eliminates a § 212(c)
waiver of deportability previously available to aggravated
felons, § 1228; significantly restricts an aggravated felon’s
opportunity for appeal by stripping courts of jurisdiction to
review orders of removal, § 1252; forbids reentry when an alien
is convicted of an aggravated felony, § 1182; and gives
retroactive effect to the aggravated felony provision, see
§ 1101(a)(43); see also see William J. Johnson, Note, When
Misdemeanors are Felonies: The Aggravated Felony of Sexual
Abuse of a Minor, 52 N.Y.L. S CH. L. R EV. 419, 428-33 (2007)
(detailing various IIRIRA provisions increasing the scope of
deportability). The comprehensive severity of this statutory
enactment strongly suggests that the narrow definition of
“sexual abuse of a minor” proposed by Restrepo is inconsistent
with congressional intent.
18
discern the clear and unmistakable intent of Congress with
respect to the definition of “sexual abuse of a minor.” Thus, we
must look to the BIA’s interpretation of the phrase and
determine whether that interpretation is reasonable. In Matter
of Rodriguez-Rodriguez, an en banc panel of the BIA
thoroughly examined the statutory language, legislative intent,
and legislative purpose behind the INA’s enactment. See 22 I.
& N. Dec. 991. The panel determined that although “sexual
abuse of a minor” was undefined in the immigration statute, the
legislature’s unmistakable intent “was to expand the definition
of aggravated felony and to provide a comprehensive statutory
scheme to cover crimes against children.” Id. at 994. Thus,
Rodriguez-Rodriguez concluded that “sexual abuse of a minor”
was most appropriately defined by § 3509(a)(8), a code section
relating to the rights of child victims and witnesses in federal
criminal cases. Id. at 995-96. Section 3509(a)(8) defines sexual
abuse to include “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.” § 3509(a)(8).
The panel explained that the broad nature of § 3509’s
definition was consistent with congressional intent to enact
immigration legislation which comprehensively addressed the
range of misconduct perpetrated against children while
accommodating the divergent ways in which states categorize
and define child sex crimes. As part of its rationale, the Board
also looked to the common law definition of “sexual abuse,”
defined by Black’s Law Dictionary as “illegal sex acts
performed against a minor by a parent, guardian, relative, or
19
acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990).
According to Rodriguez-Rodriguez, “the common usage of the
term includes a broad range of maltreatment of a sexual
nature,” 9 a reading compatible with § 3509.10 22 I. & N. Dec. at
995-96. Significantly, the BIA recognized that it was “not
obliged to adopt a federal or state statutory provision” to define
“sexual abuse of a minor.” Id. at 994. As the Second Circuit
has explained:
It would be troubling if the BIA had done no
more than pluck the definition of “sexual abuse of
a minor” from § 3509(a). That statute sets forth
procedures for protecting child victims and child
witnesses in the course of federal litigation . . . .
We agree that the § 3509(a) definition is
appropriate not simply because it appears
somewhere in the United States Code, but
because it is consonant with the generally
understood broad meaning of the term “sexual
abuse” as reflected in Black’s: “An illegal sex act,
9
The panel’s recourse to Black’s Law Dictionary
comports with the accepted method of affording terms their
common definition when they are left undefined by Congress.
See Drakes, 240 F.3d at 249.
10
The Rodriguez-Rodriguez panel was careful to note
that it was not adopting § 3509(a)(8) as a restrictive or limiting
definition, “but invok[ing] it as a guide in identifying the types
of crimes we would consider to be sexual abuse of a minor.”
Rodriguez-Rodriguez, 22 I. & N. at 996.
20
esp. one performed against a minor.” See Black’s
Law Dictionary, 10 (7th ed. 1999).
Mugalli v. Ashcroft, 258 F.3d 52, 58-59 (2d Cir. 2001) (footnote
omitted). We agree with the Second Circuit that the
reasonableness of the BIA’s resort to § 3509(a) to define “sexual
abuse of a minor” is rooted in the consonance between that
statutory provision and the commonly accepted definition of
“sexual abuse.”
We conclude that the BIA’s definition of sexual abuse of
a minor is a reasonable one and that it is appropriate to exercise
Chevron deference. Accordingly, we will define sexual abuse
of a minor by reference to § 3509(a). Not only is our conclusion
consistent with principles of statutory construction, it also
represents a logical extension of our precedent. Indeed, this is
not the first time we have been presented with a question
concerning the meaning of sexual abuse of a minor. In Singh v.
Ashcroft, 383 F.3d 144 (3d Cir. 2004), we were asked to decide
whether a conviction for “unlawful sexual contact in the third
degree” under Delaware law constitutes “sexual abuse of a
minor” under § 1101(a)(43)(A). The petitioner in that matter,
Khaimraj Singh, was convicted for touching the breast of his
cousin, who was under the age of sixteen. Id. at 148. When he
later appeared before an immigration judge, he was deemed
removable as an aggravated felon. Id. at 149-50. The
immigration judge reached this disposition by invoking § 3509’s
definition of “sexual abuse,” but he did not apply the categorical
approach mandated by Taylor. See id. at 150, 152. We
criticized this interpretive analysis and elected not to apply
Chevron deference where “the IJ offered no reason for his
decision not to apply Taylor’s categorical approach,” and the
21
BIA affirmed without opinion. Id. at 152. We nonetheless
explained that we had “no quarrel” with the immigration judge’s
invocation of § 3509 and we reserved decision on whether that
code section appropriately defined sexual abuse of a minor. Id.
at 153.
Two years later, we assumed, without deciding, that the
BIA’s interpretation of sexual abuse of a minor was appropriate.
See Stubbs, 452 F.3d at 255-56. Furthermore, two of our sister
circuits have explicitly adopted the definition supplied in
Rodriguez-Rodriguez via Chevron deference, while several
others have assumed that § 3509 represents an appropriate
definition of “sexual abuse of a minor.” See Gaiskov v. Holder,
567 F.3d 832, 835 (7th Cir. 2009); James v. Mukasey, 522 F.3d
250, 254 (2d Cir. 2008); Mugali v. Ashcroft, 258 F.3d 52, 55-56
(2d Cir. 2001); see also Vargas v. Dep’t of Homeland Sec., 451
F.3d 1105, 1107-08 (10th Cir. 2006) (assuming applicability of
§ 3509 definition); Bahar v. Ashcroft, 264 F.3d 1309, 1311-12
(11th Cir. 2001) (holding that the Rodriguez-Rodriguez
interpretation is not unreasonable); Zavala-Sustaita, 214 F.3d
601, 606-08 (5th Cir. 2000) (explaining that § 3509 definition
is consistent with § 1101(a)(43)(A)’s definition of sexual abuse
of a minor). In contrast, the Ninth Circuit is the only federal
appellate court to reject the Rodriguez-Rodriguez interpretation.
In Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008)
(en banc), the Ninth Circuit held that Chevron deference was
inappropriate, and it defined sexual abuse of a minor by
reference to § 2243. We do not find the ratio decidendi of
Estrada-Espinoza to be persuasive for several reasons. First, it
would be difficult to conjure up two more divergent fact
patterns. Estrada-Espinoza, age twenty, was ensconced in a
22
consensual relationship with his fifteen- or sixteen-year-old
girlfriend. 546 F.3d at 1150. Both sets of parents approved of
the relationship, and, ultimately, the couple raised a child
together. Id. at 1150, 1160. Driven by these compelling facts,
and armed with a heuristic survey of statutory rape law, the
Ninth Circuit found no “abuse” element in Estrada-Espinoza’s
conviction.11 Id. at 1152-56. In stark contrast, Restrepo’s
sexual touching of his daughter, commencing when she was
only twelve years old,12 is patently non-consensual and abusive.
Second, the Estrada-Espinoza court’s statutory
11
The Estrada-Espinoza court surveyed the common
contemporary meaning of sexual abuse of a minor, with
particular emphasis on the word “abuse.” Id. at 1152-55. It
concluded that, under contemporary standards, not all sexual
activity with older adolescents—such as sixteen- and seventeen-
year-olds—is abusive. Id. at 1153. Although its rather myopic
analysis of statutory rape law is dicta, the court clearly utilized
this analysis to justify its determination that § 2243 is consistent
with the “generic sense in which [sexual abuse of a minor] is
now used in the criminal codes of most states.” See Taylor, 495
U.S. at 598.
12
Restrepo was charged with acts of sexual contact that
occurred “from 1992 to approximately December of 1993[,]”
but Restrepo admitted to police that he began fondling his
daughter in 1990, approximately four years prior to his March
1994 arrest. Thus, according to Restrepo’s own admission, his
daughter—who was born on July 15, 1977—was twelve years
old when the offense began.
23
construction analysis is fatally flawed. Concluding that the
generic elements of sexual abuse of a minor are defined in 18
U.S.C. § 2243, the court rationalizes Congress’s failure to cross-
reference § 2243 in § 1101(a)(43)(A) as follows:
[T]here is a clear distinguishing characteristic
between the aggravated felonies that are linked to
other statutory provisions and those that are not.
Those that refer to a broad category of offenses,
using a potentially ambiguous phrase, reference
other statutory provisions for clarification. On the
other hand, those that refer to a specific crime
which is already clearly defined in criminal law
have no need for a cross-reference.
546 F.3d at 1155. We disagree with this analysis. We believe
it is far more likely that Congress eschewed cross references for
crimes identified only by common parlance, such as murder,
rape, sexual abuse of a minor, and theft because these terms are
not clearly defined and cannot be clearly defined by a simple
cross-reference. To the contrary, Congress purposefully did not
employ cross-references for these generic crimes to ensure the
incorporation of a broad range of diverse state statutory
definitions.
“Theft” is a prime example of a broad term that
potentially falls within the ambit of many state statutory
definitions. Indeed, the language of the INA implicitly
acknowledges that there are a variety of “theft” and “burglary”
offenses. See 8 U.S.C. § 1101(a)(43)(G) (listing “a theft offense
(including receipt of stolen property) or burglary offense for
which the term of imprisonment [is] at least one year” as an
24
aggravated felony). Theft offenses range from “steal[ing]
property” 13 to “knowingly possess[ing] stolen property” 14 to
13
N.Y. Penal Law § 155.25; see also United States v.
Graham, 169 F.3d 787 (3d Cir. 1999) (holding that an alien who
was convicted of petit larceny under N.Y. Penal Law § 155.25
and received a sentence of one year was removable under the
INA). Some statutes include specifications as to the value of the
property stolen. See, e.g., Cal. Penal Code § 487(a) (prohibiting
the taking of “money, labor, or real or personal property . . . of
a value exceeding four hundred dollars”); see also Ramirez-
Villalpando v. Holder, 601 F.3d 891 (9th Cir. 2010) (holding
that a conviction under Cal. Penal Code 487(a) is a conviction
for an aggravated felony under the INA). Another variation
appearing in many statutes is an element of intent. See, e.g.,
Conn. Gen. Stat. § 53a-119 (“A person commits larceny when,
with intent to deprive another of property or to appropriate the
same to himself or a third person, he wrongfully takes, obtains
or withholds such property from an owner.”); see also Almeida
v. Holder, 588 F.3d 778, 789 (2d Cir. 2009) (holding that a
conviction under either theory of intent articulated in Conn.
Gen. Stat. §53a-119 is a conviction for an aggravated felony).
In addition, there may be a multitude of nuances to a single
statutory definition. For example, Conn. Gen. Stat. § 53a-119
contains a basic definition of larceny, followed by a list of
eighteen offenses included in that definition.
14
See N.Y. Penal Law § 165.50 (“A person is guilty of
criminal possession of stolen property in the third degree when
he knowingly possesses stolen property, with intent to benefit
25
“us[ing] the services or property of another person entrusted to
[the defendant] or placed in his or her possession . . . for a
limited use.” 15 The phrase “sexual abuse of a minor” similarly
himself or a person other than an owner thereof or to impede the
recovery by an owner thereof, and when the value of the
property exceeds three thousand dollars.”); see also Burke v.
Mukasey, 509 F.3d 695 (5th Cir. 2007) (holding that a
conviction under N.Y. Penal Law § 165.50 is an aggravated
felony conviction).
15
Nev. Rev. Stat. Ann. § 205.0832(1)(b); see also Nolos
v. Holder, 2010 U.S. App. LEXIS 14060 (5th Cir. 2010)
(holding that Nev. Rev. Stat. Ann. § 205.0832(1)(b) meets the
court’s “generic definition of theft” and therefore qualifies as an
aggravated felony).
Of course, some criminal conduct that might be
characterized as “theft” does not qualify as an aggravated felony
under § 1101(a)(43)(G). See, e.g., Cal. Veh. Code § 10851(a)
(“Any person who drives or takes a vehicle not his or her own,
without the consent of the owner thereof, and with intent either
to permanently or temporarily deprive the owner thereof of his
or her title to or possession of the vehicle . . . or any person who
is a party or an accessory to or an accomplice in the driving or
unauthorized taking or stealing, is guilty of a public offense[.]”),
Or. Rev. Stat. § 165.800 (“A person commits the crime of
identity theft if the person, with the intent to deceive or defraud,
obtains, possesses, transfers, creates, utters or converts to the
person’s own use the personal identification of another
person.”); see also Penuliar v. Mukasey, 528 F.3d 603, 611-14
26
covers a broad assortment of statutes16 and criminal activities.
Finally, were we to limit the definition of sexual abuse of
a minor to the conduct proscribed in § 2243, a host of
misconduct criminalized by state law would not qualify as an
aggravated felony under the INA. For instance, any state statute
that criminalizes inappropriate touching of a minor through the
clothing is beyond the scope of § 2243, which requires a “sexual
act” as defined in 18 U.S.C. § 2246, and which does not include
touching through the clothing. Felony convictions under a
variety of state criminal code provisions would not qualify as
aggravated felonies if we relied on § 2243 for the definition of
sexual abuse of a minor.17 Such a result would run counter to
(9th Cir. 2008) (holding that a conviction under Cal. Veh. Code
§ 10851(a) does not categorically qualify as an aggravated
felony conviction), Mandujano-Real v. Mukasey, 526 F.3d 585
(9th Cir. 2008) (holding that a conviction under Or. Rev. Stat.
§ 165.800 is not a conviction for an aggravated felony theft
offense).
16
See, e.g., Alaska Stat. §§ 11.41.434, 11.41.436,
11.41.438, 11.41.440, D.C. Code §§ 22-3009.01, 22-3009.02,
Me. Rev. Stat. Ann. tit. 17-A, § 254, Md. Code Ann., Crim. Law
§ 3-602, Utah Code Ann. § 76-5-401.1, Wyo. Stat. Ann. §§ 6-2-
314, 6-2-315, 6-2-316, 6-2-317. Even the Estrada-Espinoza
court acknowledged that “sexual abuse of a minor” is “a
common title for offenses under state criminal codes.” 546 F.3d
at 1156.
17
See supra notes 6 and 7 and accompanying text.
27
Congress’ clear intent to expand the scope of activities
constituting an aggravated felony. The Estrada-Espinoza court’s
definition of sexual abuse of a minor does not give effect to this
legislative purpose.
We note with interest that the Ninth Circuit recently
retreated from its position in Estrada-E spinoz a .
Notwithstanding its certainty in Estrada-Espinoza that Congress
“intended the ‘aggravated felony’ of ‘sexual abuse of a minor’
to incorporate the definition of ‘sexual abuse of a minor’ in 18
U.S.C. § 2243,” 546 F.3d at 1152 n.2, the Ninth Circuit
subsequently explained that Estrada-Espinoza’s “holding was
intended to define statutory rape laws only.” United States v.
Medina-Villa, 567 F.3d 507, 515 (9th Cir. 2009).
For all of these reasons, we reject the analysis set forth in
Estrada-Espinoza.
2. Applying the Categorical Approach
To complete the Taylor analysis, we must compare the
definition of aggravated criminal sexual contact under N.J. Stat.
Ann. § 2C:14-3(a) with our definition of sexual abuse of a
minor. Section 2C:14-3(a) provides that “[a]n actor is guilty of
aggravated criminal sexual contact if he commits an act of
sexual contact with the victim under any of the circumstances
set forth in 2C:14-2(a)(2) through (7).” N.J. Stat. Ann. § 2C:14-
3(a). In Restrepo’s case, the sexual contact for which he was
convicted was the intentional touching of his daughter’s breasts
28
and vagina through her clothing.18 The circumstances set forth
in § 2C:14-2(a)(2) through (7) are phrased in disjunctive form,
and, therefore, we must identify the specific subsection under
which Restrepo was convicted.19 Singh, 383 F.3d at 162; see
also Valansi, 278 F.3d at 214. Restrepo’s charging instrument
alleges that he “did commit act(s) of aggravated criminal sexual
contact upon L.R., a child of at least (13) but less than (16)
years, with said defendant being related to L.R. by blood or
affinity to the third degree[.]” Hence, the circumstances listed
in N.J. Stat. Ann. § 2C:14-2(a)(2), (“The victim is at least 13 but
less than 16 years old”), and (a)(2)(a), (“The actor is related to
the victim by blood or affinity to the third degree”), are the
relevant circumstances with respect to the “act of sexual
contact” that led to Restrepo’s conviction. Under Taylor, we
must now determine whether conduct that constitutes “sexual
abuse of a minor” is necessary for a conviction under these
18
N.J. Stat. Ann. § 2C:14-1(d) defines “sexual contact”
as “an intentional touching by the victim or actor, either directly
or through clothing, of the victim’s or actor’s intimate parts for
the purpose of degrading or humiliating the victim or sexually
arousing or sexually gratifying the actor. Sexual contact of the
actor with himself must be in view of the victim whom the actor
knows to be present[.]”
19
The statutory definition of the offense is phrased in
disjunctive form, and it is therefore appropriate to apply the
modified categorical approach. Hence, we examine the
charging instrument, to determine which subsections apply to
Restrepo’s conviction. See Singh, 383 F.3d at 162.
29
provisions of New Jersey law.
Section 3509(a)(8)20 provides that “the term ‘sexual
abuse’ includes the employment, use, persuasion, inducement,
enticement, or coercion of a child to engage in . . . sexually
explicit conduct[.]” Additionally, § 3509(a)(9) defines
“sexually explicit conduct” to include “sexual contact[,]” which
refers to “the intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks of any person with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify sexual desire of any person[.]”
Considering the breadth of conduct encompassed by these
provisions, it is plain that an individual convicted of “aggravated
criminal sexual contact” under N.J. Stat. Ann. § 2C:14-3(a) has
necessarily engaged in an act within the definition of “sexual
abuse of a minor” provided by § 3509. Therefore, Restrepo’s
conviction falls within the ambit of “sexual abuse of a minor,”
which constitutes an aggravated felony under § 1101(a)(43).
As previously noted, supra Part II, we are without
jurisdiction to review an order to remove an alien who
committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C).
In light of our conclusion that Restrepo’s conviction qualifies as
a conviction for an aggravated felony, we lack jurisdiction to
20
As previously discussed, we have concluded that it is
appropriate to defer to the BIA’s definition of sexual abuse of
a minor, elucidated in Rodriguez-Rodriguez. Thus, like the
BIA, we will rely on 18 U.S.C. § 3509 “as a guide in identifying
the types of crimes we would consider to be sexual abuse of a
minor.” 22 I. & N. Dec. at 996.
30
review the BIA’s order, and we will not disturb it.
B. Are the Removal Proceedings Time-Barred?
Restrepo invokes 28 U.S.C. § 2462, a federal “catch-all”
statute of limitations, to argue that the removal proceeding
initiated against him in 2004 was untimely. Section 2462
provides that proceedings for the enforcement of “any civil fine,
penalty, or forfeiture” must be commenced no later than five
years from the date when the claim accrued, except as otherwise
provided by law. Restrepo contends that deportation is a
forfeiture and/or a penalty, and he asserts that the removal action
against him—which was initiated approximately ten years after
his conviction—is time-barred.
The BIA rejected Restrepo’s argument, concluding that
removal is not a civil penalty or forfeiture. It also noted that
under 8 U.S.C. § 1229(d), Restrepo had “no legally enforceable
right to have removal proceedings commenced within any
specific time frame after the date of the conviction rendering
[him] removable.” 21 For these reasons, the BIA declined to
apply § 2462’s “catch-all” statute of limitations to the removal
proceedings against Restrepo. Despite our discomfiture with the
prolonged delay in initiation of removal proceedings, we are
21
Section 1229(d) provides for expeditious
commencement of removal proceedings, but it also states that
“[n]othing in this subsection shall be construed to create any
substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its
agencies or officers or any other person.” § 1229(d)(2).
31
compelled to concur in the conclusions of the BIA.
At the outset, we note that the record is devoid of any
reasonable explanation for USICE’s failure to initiate
proceedings against Restrepo until ten years after his conviction,
and eight years after the definition of “aggravated felony” was
amended to include sexual abuse of a minor. We find this
enforcement history troubling, and it begs the question which we
posed to the Attorney General at oral argument, in essence: is it
not appropriate to impose some statute of limitations governing
the period within which the USICE may prosecute the removal
of aliens convicted of aggravated felonies? Our inquiry is
rhetorical, however, in that the statute imposes no time
constraints on such proceedings, and the task of creating a
limitations period lies with the legislature, not the judiciary. See,
e.g., Lonchar v. Thomas, 517 U.S. 314, 328 (1996)
(commenting on the “institutional inappropriateness” of making
policy “through an ad hoc judicial exception, rather than through
congressional legislation or through the formal rulemaking
process”); see also Rothensies v. Electric Storage Battery Co.,
329 U.S. 296, 303 (1946) (noting that “it is for Congress rather
than for the courts to create and limit” exceptions to statutory
limitations periods). Section 1229 directs the government to
“begin any removal proceedings as expeditiously as possible
after the date of conviction[,]” § 1229(d)(1), but it imposes no
time limitation upon government action, and it specifically
disclaims the creation of any enforceable rights.
Restrepo’s § 2462 argument relies upon a quotation from
the 1948 Supreme Court case of Fong Haw Tan v. Phelan, 333
U.S. 6, 10 (1948): “[Removal] is the forfeiture for misconduct
of a residence in this country. Such a forfeiture is a penalty.”
32
Restrepo’s reliance on this statement is misplaced, because it
does not address the question of whether removal proceedings
qualify as a forfeiture or a penalty for purposes of § 2462,22 and
because it is squarely refuted by a host of cases from the
Supreme Court and this Court, holding that removal is not a
penalty.23 Thus, we conclude that § 2462’s five-year statute of
limitations does not apply to removal proceedings.
22
In Fong Haw Tan, the Court was merely noting that
deportation is a “drastic measure” with “considerable”
consequences for the alien. Id. Fong Haw Tan addressed the
circumstances under which an alien was considered to be
“sentenced more than once[,]” and thereby removable, under a
law which has since been repealed. Id. at 7-8. The Court
remarked on the harsh consequences of deportation in order to
justify a narrow construction of the language at issue. Id. at 10.
Consequently, the quoted language does not control the question
of whether Restrepo’s removal proceedings are untimely under
§ 2462.
23
For instance, in INS v. Lopez-Mendoza, 468 U.S. 1032
(1984), Justice O’Connor wrote that “[a] deportation proceeding
is . . . not [intended] to punish an unlawful entry[.]” Id. at 1038.
Decades earlier, Chief Justice Taft similarly stated that “[i]t is
well settled that deportation, while it may be burdensome and
severe for the alien, is not a punishment.” Mahler v. Eby, 264
U.S. 32, 39 (1924). Judges of this Court have also explained
that “deportation statutes are not penal in nature.” Bufalino v.
INS, 473 F.2d 728, 739 (3d Cir. 1973) (Adams, C.J.,
concurring).
33
IV.
For the reasons explained above, we will deny the
petition for review.
34