Fourth Circuit provides its own definition of "sexual abuse of a minor".

• Author: Koutrobis, Christos
• Position: IMMIGRATION LAW

An alien admitted to the United States is subject to removal if convicted of an aggravated felony, as defined in the Immigration and Nationality Act (the Act). (1) A noncitizen falls under the "sexual abuse of a minor" subcategory of the aggravated felony statute in the Act if convicted of a federal or state statute that conforms to the Board of Immigration Appeals' (BIA) or the circuit courts' definition of "sexual abuse of a minor." (2) The United States Court of Appeals for the Fourth Circuit, in Amos v. Lynch, (3) addressed whether the former Maryland statute qualifies as "sexual abuse of a minor" under the aggravated felony statute in the Act. (4) The Fourth Circuit did not defer to the BIA's definition and instead determined that the Maryland statute did not constitute "sexual abuse of a minor" under the aggravated felony statute in the Act. (5)

Richard Jesus Amos (Amos), a native and citizen of the Philippines, came to the United States in 1980. (6) Amos was admitted to the United States as a lawful permanent resident at the age of nine years old. (7) Ten years after his arrival in the United States as a lawful permanent resident, he was convicted of causing abuse to a child in Maryland. (8) Amos was sentenced to eighteen months imprisonment, which was suspended for three years of probation. (9)

In 2008, the Department of Homeland Security initiated removal proceedings against Amos. (10) Amos was charged as being removable from the United States for having been convicted of a crime that constitutes an aggravated felony, namely, "sexual abuse of a minor." (11) At the hearing before an immigration judge, Amos was ordered removed from the United States. (12) The BIA affirmed the order of removal. (13) After the BIA affirmed the decision, Amos filed a motion to reconsider, which the BIA denied. (14) Amos petitioned the Fourth Circuit to review the BIA's affirmation of the order of removal, as well as the denial of the motion to reconsider, both of which were consolidated into one case, and eventually resulted in the Court's decision to vacate the order of removal. (15)

Congress enacted the aggravated felony statute to remove aliens who were convicted of the most heinous crimes and attached the most severe consequences for convictions of those crimes. (16) Certain conduct under the aggravated felony statute is defined in the Act by referencing one or multiple federal criminal statutes; "sexual abuse of a minor," however, does not have a reference statute. (17) To fill the gap left by Congress, the BIA issued a precedential decision in Matter of Rodriguez-Rodriguez (Rodriguez-Rodriguez), (18) which sought to define "sexual abuse of a minor." (19) The BIA's decision invoked the 18 U.S.C. [section] 3509(a)(8) and Black's Law Dictionary definitions of sexual abuse because both permit conduct lacking physical contact to be an offense, unlike other federal statutes. (20) when attempting to determine if a statute fits within the definition of "sexual abuse of a minor" under the Act, a court will conduct an inquiry to determine what portion of the statute the individual was convicted of and what is the least level of conduct criminalized under that specific portion of the statute. (21) In Maryland, the least level of conduct criminalized under the specific portion of the sexual abuse statute was delineated in Degren v. State. (22)

The Supreme Court of the United States has identified two levels of deference that could be accorded to federal administrative agencies and some instances where such agencies are to be accorded no deference. (23) As described in Chevron U.S.A., Inc. v. Natural Resources Defense Council, (24) a reviewing court must defer to the federal administrative agency's statutory interpretation where: (1) Congress's intent is unclear and (2) the agency's interpretation is reasonable. (25) Under Skidmore v. Swift & Co., (26) the reviewing court will consider multiple factors when deciding what amount of deference to afford an administrative agency. (27) In INS v. Aguirre-Aguirre, (28) the Supreme Court made it clear that precedential BIA decisions interpreting the Act should be given Chevron deference. (29) Notwithstanding the Aguirre-Aguirre decision, circuit courts vary as to how much deference, if any, to afford BIA precedential decisions. (30)

While the BIA interpretations of the Act are to be afforded Chevron deference by federal courts, the circuit courts are split as to what deference should be afforded to the BIA's statutory interpretation of "sexual abuse of a minor" delineated in Rodriguez-Rodriguez. (31) After the BIA outlined the framework of how to determine if a state conviction constitutes "sexual abuse of a minor" under the Act, the United States Courts of Appeals for the Second, Third, and Seventh Circuits gave Chevron deference to the decision. (32) on the other hand, the United States Court of Appeals for the Ninth Circuit chose not to give Chevron deference to the BIA's definition of "sexual abuse of a minor" in Rodriguez-Rodriguez even though the Supreme Court stated BIA precedent cases require Chevron deference. (33) The inconsistent enforcement of immigration laws has triggered both an unsuccessful call to Congress to conduct comprehensive immigration reform as well as failed attempts at executive action by President Obama. (34)

The Fourth Circuit, in Amos v. Lynch, faced the same predicament of what deference, if any, to afford the BIA's statutory interpretation of "sexual abuse of a minor" put forth in Rodriguez-Rodriguez. (35) The Fourth Circuit acknowledged its duty to give Chevron deference to the BIA's precedent decisions, but noted that the Amos case was an unpublished decision and thus, did not require such deference. (36) The BIA's foundation for its decision rested on the precedential decision in Rodriguez-Rodriguez, which the Fourth Circuit acknowledged as potentially deserving of Chevron deference. (37) The Court noted that in Rodriguez-Rodriguez, the BIA determined that 18 U.S.C. [section][section] 2243, 2244, and 2246 all were considered to be too narrow to include all of the state crimes related to "sexual abuse of a minor." (38) The Fourth Circuit then acknowledged that Rodriguez-Rodriguez "discussed" 18 U.S.C. [section] 3509(a)(8) but did not go so far to say Rodriguez-Rodriguez adopted it as a definition. (39) It did note, however, that the Second, Third, and Seventh Circuits concluded that the BIA adopted [section] 3509(a)(8) as a definition of "sexual abuse of a minor" but that the Ninth Circuit came to a disparate conclusion. (40)

After its analysis of other circuits' approaches, the Fourth Circuit narrowed its focus to the BIA's language stating it was "not adopting [that] statute as a definitive standard or definition," but that [section] 3509(a)(8) was invoked "as a guide in identifying the types of crimes [it] would consider to be sexual abuse of a minor." (41) The Court decided that the BIA decision was to be afforded Skidmore deference rather than Chevron deference based off of the BIA's use of the word "guide" in the Rodriguez-Rodriguez decision. (42) The Court reasoned that because the BIA did not provide a definition, a categorical analysis could not be conducted. (43) As a result, it conducted its own inquiry into the least culpable conduct under the Maryland statute and found that it included both "the affirmative acts of watching and failing to intervene," as well as "an omission or failure to act when a child is being sexually abused." (44) In reviewing the least culpable conduct under the Maryland statute, the Fourth Circuit concluded that even when using [section] 3509(a)(8) as a "guide," the "omission or failure to act" under the Maryland statute could not be considered "sexual abuse of a minor" because it contained levels of culpability lower than that in [section] 3509(a)(8). (45) As a result, Amos could not be ordered removed as a noncitizen convicted of an aggravated felony specifically for "sexual abuse of a minor." (46)

First, the Fourth Circuit in its analysis of the BIA's precedent decision in Rodriguez-Rodriguez strategically circumvented the order of the Supreme Court in Aguirre-Aguirre to afford BIA precedent decisions Chevron deference when the agency was given the authority to interpret statutes. (47) In Amos, the Fourth Circuit admitted the BIA rejected the use of various criminal statutes as being too narrow and restrictive; in Rodriguez-Rodriguez, however, the Court chose to use the word "discussed" to refer to the BIA's choice of [section] 3509(a)(8) rather than as a statutory interpretation of "sexual abuse of a minor." (48) The Court also focused on the BIA's decision to refer to its use of [section] 3509(a)(8) as a "guide" in order to lessen its precedential authority. (49) The BIA's decision to use the word "guide" should not lessen the deference it should be afforded. (50) A statute is, necessarily, a guide for factfinders to use to analyze the conduct of an individual to determine if the individual committed a crime. (51) Here, the BIA used [section] 3509(a)(8) as a "guide" for factfinders to determine if a state or federal statute constitutes "sexual abuse of a minor" and, therefore, should have been afforded Chevron deference. (52)

Second, the Fourth Circuit's analysis in Amos of the least culpable conduct under the Maryland statute described in Degren tactfully omitted an important part from the Degren decision. (53) The Court included "when it is reasonably possible to act" but failed to include "when a duty to do so exists." (54) By omitting the language, an inference could be drawn that a person with no duty to act when a minor is being sexually abused could be criminally punished under the Maryland statute, which is inaccurate. (55) The actual conduct considered the least culpable conduct criminalized under the Maryland statute and described in Degren is intended for those who have a duty to act...