By Cate Berenato
On June 10, 2015, in the civil case, Amos v. Lynch, the Fourth Circuit overturned a Board of Immigration Appeals (“BIA”) order to remove a legal alien from the United States because he sexually abused a child under Maryland law. The Court stated that the federal aggravated felony of child sexual abuse did not encompass the Maryland law, and thus the alien could not be removed for committing an aggravated felony under federal law.
Mr. Amos’s Conviction
In 1990, Richard Jesus Amos (“Amos”), a citizen of the Philippines and United States resident, was convicted of violating Maryland law by “causing abuse to a child.” In 2008, the Department of Homeland Security (“DHS”) began a removal proceeding against Amos under 8 U.S.C. § 1227(a)(2)(A)(iii), which states that “any alien who is convicted of an aggravated felony at any time after admission” may be removed from the United States. An immigration judge ruled that Amos should be removed for violating not only the former Maryland child sexual abuse law, Maryland Code, Article 27 § 35A (1988) (“Maryland statute”) but also the federal law 8 U.S.C. §1101(a)(43)(A) (“Subsection A”), which lists “sexual abuse of a minor” as an aggravated felony. Amos appealed, but the BIA dismissed his appeal and denied his motion for reconsideration. The Fourth Circuit vacated Amos’s removal and granted his petition for review.
Does Subsection A Encompass the Maryland Statute?
The Fourth Circuit considered “whether the BIA erred in concluding that Amos’s conviction under the former Maryland statute qualifie[d] as the aggravated felony of ‘sexual abuse of a minor,’ within the meaning of Subsection A.” The Fourth Circuit reviewed BIA’s decision de novo.
Determining Categorical Fit
To determine “whether a conviction under a particular state law qualifies as an aggravated felony for removal purposes” courts must ask “whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” The Maryland statute prohibits sexual abuse of a child regardless of whether the child sustains physical injuries, and “sexual abuse of a minor” is an aggravated felony under Section A.
Subsection A Does Not Fully Encompass the Maryland Statute
The Fourth Circuit first considered the definition of Subsection A’s “sexual abuse of a minor.” Because the Immigration and Nationality Act (“INA”) does not define Subsection A’s “sexual abuse of a minor,” the BIA stated that the BIA itself had previously defined this phrase in Rodriguez-Rodriguez. In that case, the BIA decided that exposure to a child, without physical contact, constituted “sexual abuse of a minor” under Subsection A. It borrowed a broad “sexual abuse” definition from another statute, which stated that “sexual abuse” was “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.”
The Fourth Circuit rejected the BIA’s reliance on Rodriguez. It noted that the BIA in Rodriguez specifically stated that it was not adopting the broad definition as the definitive one for “sexual abuse of a minor” under Subsection A, but rather used it as a guide. Rodriguez only concluded that the Subsection A’s “sexual abuse of a minor” did not require physical contact and that Subsection A encompassed Texas’s state child abuse statute.
Subsection A does not include the least culpable behavior prohibited by the Maryland statute. Though the BIA in Amos’s case argued that Subsection A must include the child abuse prohibited by the Maryland statute because Subsection A does not even require physical contact, the Fourth Circuit stated that the least culpable portion of the Maryland statute, “failure to act to prevent sexual abuse,” is not encompassed in Subsection A. The BIA did not offer any evidence suggesting that Subsection A encompasses this “failure to act.” Even the broad definition in Rodriguez solely includes affirmative acts, even though they may not be physical acts. Thus, because the Maryland statute criminalizes inaction and the BIA did not provide any definition of “sexual abuse of a minor” under Subsection A that criminalized inaction, Subsection A does not fully encompass the Maryland statute.
Fourth Circuit Vacated BIA’s Decision
The Fourth Circuit vacated the BIA’s decision to remove Amos and granted his petition for review.