PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1809
OMAR JEHU THOMPSON,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: March 19, 2019 Decided: April 26, 2019
Before WILKINSON, KEENAN, and RICHARDSON, Circuit Judges.
Petition denied by published opinion. Judge Wilkinson wrote the opinion, in which Judge
Keenan and Judge Richardson joined.
ARGUED: Mark Alastair Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia, for
Petitioner. Walter Bocchini, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney
General, Linda S. Wernery, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
WILKINSON, Circuit Judge:
The Department of Homeland Security (DHS) instituted removal proceedings
against Omar Thompson in 2016, asserting that he had committed aggravated felonies
and could therefore be deported under the Immigration and Nationality Act (INA). The
Board of Immigration Appeals (BIA) agreed. Thompson brought this petition, contending
that his convictions for taking custodial indecent liberties with a child under Virginia
Code § 18.2-370.1(A) do not qualify as aggravated felonies. For the following reasons,
we deny the petition and affirm the BIA’s decision.
I.
In 2014, petitioner Omar Thompson pled guilty to two counts of taking custodial
indecent liberties with a child, a crime under Virginia law, see Va. Code § 18.2-370.1(A).
The INA lists “sexual abuse of a minor” as an aggravated felony, 8 U.S.C.
§ 1101(a)(43)(A) (2012), and further provides that “[a]ny alien who is convicted of an
aggravated felony” is deportable, § 1227(a)(2)(A)(iii). DHS argued that the offense of
taking custodial indecent liberties under Virginia law constituted sexual abuse of a minor
under the INA. If that is correct, it follows ineluctably that the offense is an aggravated
felony within the meaning of the INA, and therefore that offenders such as Thompson are
deportable. The BIA so concluded. On appeal, we review only this conclusion of law.
In assessing whether an offense qualifies as an aggravated felony under the INA,
we apply the categorical approach. See, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183,
186 (2007) (applying to the INA the categorical approach from Taylor v. United States,
495 U.S. 575 (1990)). Under the categorical approach, the first step is identifying which
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crime listed in the INA is closest to the state crime at issue. See United States v. Perez-
Perez, 737 F.3d 950, 952-53 (4th Cir. 2013). Here, all agree that “sexual abuse of a
minor” is closest to the Virginia offense of taking custodial indecent liberties. The second
step involves discerning the generic definition of the listed crime. That task has been
done for us by prior case law: “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.’” Larios-Reyes v. Lynch, 843 F.3d 146, 159 (4th Cir.
2016) (quoting United States v. Diaz-Ibarra, 522 F.3d 343, 352 (4th Cir. 2008)).
Next, and at issue here, a court must compare the elements of the generic federal
definition with those of the relevant state law. The comparison called for by the
categorical approach is formal and somewhat abstract. Our task is to gauge what conduct
might plausibly support a conviction under state law but still lie outside the federal
generic definition. In this task, we consider the least culpable conduct the state statute
sweeps in. E.g., Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). Though this comparison
is a pure question of law, it is not a mere “application of legal imagination to a state
statute’s language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). To find a
crime not categorically an aggravated felony, a court must identify “a realistic
probability, not a theoretical possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.” Id. And, of course, if we find that the
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state law as a realistic matter sweeps more broadly than the federal generic offense,
removal under 8 U.S.C. § 1227(a)(2)(A)(iii) cannot proceed. 1
II.
Petitioner contends that such a mismatch occurred here. Specifically, he argues
that the least culpable conduct rendered criminal under his statute of conviction fails to
qualify as “sexual abuse of a minor” under the INA. The Virginia statute at issue reads as
follows:
Any person 18 years of age or older who . . . maintains a custodial or
supervisory relationship over a child under the age of 18 . . . who, with
lascivious intent, knowingly and intentionally
(i) proposes that any such child feel or fondle the sexual or genital parts of
such person or that such person feel or handle the sexual or genital parts of
the child; or
(ii) proposes to such child the performance of an act of sexual intercourse,
anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting
an offense under § 18.2-361; or
(iii) exposes his or her sexual or genital parts to such child; or
(iv) proposes that any such child expose his or her sexual or genital parts to
such person; or
(v) proposes to the child that the child engage in sexual intercourse,
sodomy or fondling of sexual or genital parts with another person; or
(vi) sexually abuses the child as defined in subdivision 6 of § 18.2-67.10 is
guilty of a Class 6 felony. 2 Va. Code § 18.2-370.1(A).
This law corresponds in substance to the generic offense of sexual abuse of a minor,
which is, to repeat, the “physical or nonphysical misuse or maltreatment of a minor for a
1
By contrast, those convicted of an aggravated felony are ineligible for discretionary
relief from removal. See 8 U.S.C. §§ 1229b(a)(3), (b)(1)(C); Moncrieffe v. Holder, 569
U.S. 184, 187 (2013) (“The INA also prohibits the Attorney General from granting
discretionary relief from removal to an aggravated felon, no matter how compelling his
case.”).
2
Section 18.2-67.10(6), in turn, targets touching, or forcing the victim to touch, “intimate
parts or material directly covering such intimate parts.”
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purpose associated with sexual gratification.” Larios-Reyes v. Lynch, 843 F.3d 146, 159
(4th Cir. 2016) (internal quotation marks omitted).
To arrive at this conclusion, we need not draw on a blank slate. Our decision in
United States v. Perez-Perez, 737 F.3d 950 (4th Cir. 2013) explained the three salient
characteristics of the generic offense of sexual abuse of a minor. First, the offense
“target[s] conduct directed towards minors.” Id. at 953. Second, the offense “require[s] a
mental element focused on sexual gratification.” Id. The second characteristic bears
emphasizing, since “it is the sexual-gratification element that polices the line between
lawful and unlawful conduct.” United States v. Alfaro, 835 F.3d 470, 476 (4th Cir. 2016).
Third, the offense requires “physical or nonphysical misuse or maltreatment,” an element
which “cast[s] a broad net.” Perez-Perez, 737 F.3d at 953.
The Virginia custodial indecent liberties statute displays these three
characteristics. The convictions under the Virginia law involve “conduct oriented toward
minors,” since the victim must be “a child under the age of 18.” All convictions “require
a mental element focused on sexual gratification” because the government must prove
“lascivious intent.” See McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284
(1970) (“[T]he word ‘lascivious’ describes a state of mind that is eager for sexual
indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.”). Finally,
like the generic offense, Virginia’s law requires physical or nonphysical maltreatment.
The prohibition on actual touching in section vi covers physical maltreatment. Exposure
(section iii) and various indecent propositions (sections i, ii, iv, and v) cover nonphysical
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maltreatment. The straightforward conclusion from this comparison is that custodial
indecent liberties under Virginia law constitutes sexual abuse of a minor.
Petitioner summons a surfeit of arguments against this conclusion, but all miss the
mark. He objects that Virginia’s law forbids mere propositions and permits convictions
even where the victim has consented or is not present or is unaware of the abuse. The
generic offense, he contends, differs on these points. That simply is incorrect. The
generic offense of sexual abuse of a minor is not limited to the proscription of physical
contact, nor is it confined to cases where the victim can demonstrate some palpable harm.
See United States v. Diaz-Ibarra, 522 F.3d 343, 350 (4th Cir. 2008) (“[N]o physical or
psychological injury is required for the abuse to be complete. . . . ‘[S]exual abuse’ is an
intent-centered phrase; the misuse of the child for sexual purposes completes the abusive
act.”). Because the Virginia custodial indecent liberties statute meets the three
characteristics our precedent requires, it is a categorical match to sexual abuse of a minor.
Indeed, precedent amply reinforces this conclusion. In United States v. Perez-
Perez, 737 F.3d 950 (4th Cir. 2013), we applied the categorical approach to the North
Carolina offense of “taking indecent liberties with children,” N.C. Gen. Stat. § 14-202.1.
The North Carolina statute at issue in that case prohibited both taking “any immoral,
improper, or indecent liberties with any child . . . for the purpose of arousing or gratifying
sexual desire” and “commit[ting] any lewd or lascivious act upon or with the body or any
part or member of the body of any child . . . .” N.C. Gen. Stat. § 14-202.1. Comparing the
generic offense of sexual abuse of a minor to the North Carolina statute, we had little
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difficulty concluding that the North Carolina offense met the three characteristics of the
generic offense. Virginia’s law is not broader than North Carolina’s in any relevant way.
Petitioner contends, however, that Virginia’s law is distinguishable from the North
Carolina law at issue in Perez-Perez because, unlike that law’s open-ended elements, the
Virginia offense can be committed in six distinct ways. But this specificity does not
sweep in more conduct. Rather than leaving open what acts count as “lewd or lascivious”
and which “part[s] or member[s] of the body of the child” are relevant as the North
Carolina law did, the Virginia law simply spells out specific acts (and, of course, requires
lascivious intent). To put a finer point on this, petitioner fails to explain which subsection
of Virginia Code § 18.2-370.1(A) describes non-lewd and non-lascivious acts—surely to
“feel or fondle,” to “expose . . . sexual or genital parts,” “fellatio” and so forth are lewd
or lascivious and would therefore fall under the North Carolina law as well. And if there
were any doubt from the text of the statute alone that the North Carolina law covered
propositions, case law clearly resolved it. See, e.g., State v. Every, 578 S.E.2d 642, 647-
49 (N.C. Ct. App. 2003) (upholding a conviction when the lewd acts were “mere words”
over the phone).
That the Virginia and North Carolina statutes target much the same conduct is
confirmed by their prefatory language. The North Carolina law is titled “taking indecent
liberties with children,” N.C. Gen. Stat. § 14-202.1, while the Virginia law is titled
“taking indecent liberties with child by person in custodial or supervisory relationship,”
Va. Code § 18.2-370.1. The two states passed laws with different wording and structure,
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but each aims at similar conduct, and it is that conduct we evaluate for a match to the
generic offense of sexual abuse of a minor.
Were we to adopt any other approach, states could find themselves whipsawed. In
this case petitioner faults Virginia for its detailed statutory text. The enumeration of so
many restrictions on propositions, he contends, is indicative of impermissible breadth.
See App. Reply Br. at 7. In other contexts, however, it is the more general language in
state statutes that spawns inventive hypotheticals outside the generic offense. See United
States v. Stitt, 139 S. Ct. 399, 404, 407 (2018) (holding that a detailed Tennessee statute
categorically matched generic burglary, but remanding a consolidated case concerning a
more generally framed Arkansas law that “might cover a car in which a homeless person
occasionally sleeps”). It is all a sort of Catch-22 that, if indulged, would defeat the
obvious congressional intention that molesters of children should be subject to removal.
Petitioner poses hypothetical scenarios of conduct that might be criminal under
Virginia law, but not sexually abusive as Congress envisioned it. For example, the
Virginia statute might cover an 18-year-old who propositions a 17-year-old worker in his
care or employ. App. Br. at 11, 24. The Virginia statute might also cover that 18-year-old
if he exposed himself to a 17-year-old who was not looking at the time. Other scenarios
involve the same hapless 18-year-old manager being asked by the 17-year-old victim to
send sexually explicit texts and complying. Even were those scenarios outside the generic
definition of sexual abuse of a minor, petitioner has identified no actual prosecutions
anything like these. Aside from the fact that no “custodial or supervisory relationship,”
Va. Code § 18.2-370.1(A), is likely to be involved, such fanciful applications of the
8
statute reflect “legal imagination” and “theoretical possibility” without the deflating dose
of “realistic probability” the Supreme Court requires us to deploy. Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007).
The above points to one way in which the Virginia statute is actually narrower
than both the North Carolina indecent liberties statute and the generic offense of sexual
abuse of a minor: it applies only to those in a “custodial or supervisory relationship with
the child.” Va. Code § 18.2-370.1(A). Virginia’s statute aims at that particular category
of abuse perpetrated by those in positions of authority, more specifically, those with “the
responsibility for and control of the child’s safety and well-being.” Linnon v.
Commonwealth, 287 Va. 92, 98, 752 S.E.2d 822, 826 (2014) (internal quotation marks
and alterations omitted). Sexual abuse of children always involves preying on the
vulnerable, but offenses like those targeted by Virginia’s statute entail something even
more insidious. In “custodial” cases, the victim had reason to trust the perpetrator as a
coach, a scout leader, a pastor, a parent, a babysitter, a teacher, or any of the myriad other
positions that, when carried out in non-abusive ways, contribute mightily, indeed
beautifully, to a child’s becoming a responsible adult. Far from being overbroad, the
Virginia statute is narrowly tailored.
III.
Petitioner’s final contention is that the Supreme Court’s decision in Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562 (2017), overruled our case law defining the generic
offense of sexual abuse of a minor. In that case, the Supreme Court “h[e]ld that in the
context of statutory rape offenses focused solely on the age of the participants, the
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generic federal definition of ‘sexual abuse of a minor’ under § 1101(a)(43)(A) requires
the age of the victim to be less than 16.” Id. at 1572-73. Petitioner infers from this
holding and other language in the opinion that Virginia’s law sweeps in two categories of
conduct that are not covered by the generic offense of sexual abuse of a minor: first,
cases in which the victim is 16 or 17 years old, and second, cases lacking sexual
intercourse or physical contact.
We are not persuaded. Esquivel-Quintana focused on the narrow context of
statutory rape. It repeatedly limited its holding to “the context of statutory rape offenses
that criminalize sexual intercourse based solely on the age of the participants.” Id. at
1568; see also id. at 1570 (“in the context of statutory rape offenses predicated solely on
the age of the participants”); id. at 1572 (“in the context of statutory rape offenses
focused solely on the age of the participants”).
Indeed, to underscore that its holding excluding 16-and-17-year-olds as sexual
abuse victims reached only the context of statutory rape, the Supreme Court specified a
class of cases the opinion did not address. To wit, “offenses predicated on a special
relationship of trust between the victim and offender are not at issue here and frequently
have a different age requirement than the general age of consent.” Esquivel-Quintana,
137 S. Ct. at 1570; see also id. at 1571-72 (“Many jurisdictions set a different age of
consent for offenses that include an element apart from the age of the participants, such
as offenses that focus on whether the perpetrator is in some special relationship of trust
with the victim. . . . Accordingly, the generic crime of sexual abuse of a minor may
10
include a different age of consent where the perpetrator and victim are in a significant
relationship of trust.”).
There are good reasons to treat statutory rape differently from other crimes.
Statutory rape is an unusual crime in several respects, but most relevant here is that it
requires no mens rea—offenders are strictly liable if they have sexual intercourse with a
person below a certain age. E.g., Cal. Penal Code § 261.5 (defining statutory rape, but
requiring no mens rea). By contrast, to take indecent liberties under Virginia law, a
custodian must act “with lascivious intent, knowingly, and intentionally.” Va. Code
§ 18.2-370.1(A). Without the element of intent to “police[] the line between lawful and
unlawful conduct,” United States v. Alfaro, 835 F.3d 470, 476 (4th Cir. 2016), it is
sensible to limit offenses more stringently by age. But where the reason for limiting the
offense to victims under 16 does not apply, the limitation itself need not apply. We see no
reason to expand Esquivel-Quintana’s reasoning to a crime that requires prosecutors to
prove “lascivious intent.”
Virginia’s custodial indecent liberties statute differs from statutory rape not only
in requiring mens rea, but also in requiring prosecutors to establish beyond a reasonable
doubt the existence of a “custodial or supervisory relationship over a child.” Va. Code
§ 18.2-370.1(A). Petitioner’s argument that the custodial prong is meaningless or
unenforced is insubstantial. A Virginia court recently reversed a custodial indecent
liberties conviction because there was insufficient evidence to show a custodial
relationship, rejecting what it called the prosecution’s attempt to “airbrush the word
‘supervisory’ from the statute.” Hutton v. Commonwealth, 66 Va. App. 714, 725, 791
11
S.E.2d 750, 755 (2016). This element makes the Virginia offense precisely one involving
a “special relationship of trust” that the Supreme Court meant to exempt from its holding.
Esquivel-Quintana, 137 S. Ct. at 1570. Esquivel-Quintana was a case about statutory
rape—this case is not. We decline petitioner’s invitation to hear what the Court was not
saying.
Petitioner further argues that Esquivel-Quintana by implication limited sexual
abuse of a minor to crimes involving sexual contact. This logic would upend the generic
definition and exclude misconduct that few would doubt is abuse of a minor in common
parlance. Convictions involving indecent communications with minors over the internet,
by phone, or any other remote channel would no longer count. Sexually lascivious nude
exposure to a minor would not constitute sexual abuse, nor would photographing minors
in sexually explicit postures so long as no physical contact was involved.
We doubt the Supreme Court would adopt such a far-reaching rule without the
most careful consideration of its consequences. There is no such consideration in
Esquivel-Quintana, because the Supreme Court laid down no such absolute rule. To be
sure, the Court said that “we leave for another day . . . whether the generic offense
encompasses sexual intercourse involving victims over the age of 16 that is abusive
because of the nature of the relationship between the participants.” 137 S. Ct. at 1572
(emphasis added). But using the term “sexual intercourse” rather than something broader
provides too faint an implication that physical contact is a prerequisite for a finding of
sexual abuse. We lack the authority to overturn our precedent when the Supreme Court
did not.
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IV.
For the foregoing reasons, we deny the petition and hold that conviction of the
Virginia offense of taking custodial indecent liberties with children, Va. Code § 18.2-
370.1(A), qualifies categorically as an aggravated felony of sexual abuse of a minor
under the INA.
PETITION DENIED
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