Khaimraj Singh v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: September 17, 2004
• Docket: 03-1532
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

9-17-2004

Khaimraj Singh v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-1532

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IN THE UNITED STATES COURT OF Attorneys for Petitioner APPEALS FOR THE THIRD CIRCUIT ______________________ PETER D. KEISLER Assistant Attorney General, Civil NO. 03-1532 Division ______________________ DAVID V. BERNAL Assistant Director ANTHONY P. NICASTRO (ARGUED) KHAIMRAJ SINGH Trial Attorney CHRISTOPHER C. FULLER Petitioner LYLE D. JENTZER United States Department of Justice v. Office of Immigration Litigation Ben Franklin Station JOHN ASHCROFT, ATTORNEY P.O. Box 878 GENERAL Washington, DC 20044 OF THE UNITED STATES OF AMERICA Attorneys for Respondent ______________________ ________________________

On Petition for Review of Orders of the OPINION OF THE COURT Board of Immigration Appeals ________________________ (Board No. A41-930-720) ______________________ BECKER, Circuit Judge. Khaimraj Singh, a Guyanan national, Argued June 28, 2004 petitions for review of a final order of removal grounded upon the determination Before: AMBRO, BECKER and that he is an aggravated felon on account GREENBERG, Circuit Judges of his conviction for touching the breast of his cousin, who was under sixteen years of (Filed September17, 2004) age. The offense of conviction was 11 Del. C. § 767, “Unlawful sexual contact in JAMES J. ORLOW the third degree,” which provides: DAVID KAPLAN (ARGUED) A person is guilty of unlawful Orlow & Orlow sexual contact in the third degree III.B. As will appear, a pattern emerges, when the person has sexual contact causing us to conclude that, while the with another person or causes the formal categorical approach of Taylor victim to have sexual contact with presumptively applies in assessing whether the person or a third person and the an alien has been convicted of an person knows that the contact is aggravated felony, in some cases the either offensive to the victim or language of the particular subsection of 8 occurs without the victim’s U.S.C. § 1101(a)(43) at issue will invite consent. inquiry into the underlying facts of the case, and in some cases the disjunctive The question presented on this petition phrasing of the statute of conviction will for review—whether Singh has been similarly invite inquiry into the specifics of convicted of the aggravated felony of the conviction. But in this case, neither 8 “sexual abuse of a minor,” 8 U.S.C. U.S.C. § 1101(a)(43)(A) nor 11 Del. C. § 1101(a)(43)(A)—turns on whether we § 767 invite inquiry into the facts must apply the so-called “formal underlying Singh’s conviction. Therefore, categorical approach” announced in Taylor because Taylor’s formal categorical v. United States, 495 U.S. 575 (1990). approach applies to Singh’s case, we will Under that approach, an adjudicator “must grant the petition for review. look only to the statutory definitions of the prior offenses,” and may not “consider other evidence concerning the defendant’s I. Factual Background and Proceedings prior crimes,” including, “the particular Before the Immigration Judge and Board facts underlying [a] conviction[].” Id. at of Immigration Appeals 600. If we apply the formal categorical approach, Singh has not been convicted of Singh is a native and citizen of Guyana. the aggravated felony of sexual abuse of a He was admitted to the United States in minor because § 767 does not contain an June 1988 as an immigrant. About ten element specifying the age of the victim. years later, he touched the breast of his If we do not apply the formal categorical cousin, who was under the age of sixteen. approach, Singh has been convicted of the For this, the State of Delaware charged aggravated felony of sexual abuse of a him under 11 Del. C. § 768, “Unlawful minor because the victim of his sex sexual contact in the second degree.” offense was, indeed, a minor. Apparently as part of a plea agreement with the state prosecutor, Singh pled guilty Our jurisprudence in the aggravated to the lesser included offense of 11 Del. C. felony area— twelve cases in all—is not a § 767, “Unlawful sexual contact in the seamless web. In order to resolve the third degree.” On May 19, 1998, the appeal we have found it necessary to Delaware Superior Court imposed a one- analyze and synthesize this body of case year suspended sentence. law, and we do so at length, see infra Part

2 This conviction, the government asserts, renders Singh an aggravated felon under 8 U.S.C. § 1101(a)(43)(A), which property derived from provides that “sexual abuse of a minor” is specific unlawful activity) an aggravated felony. 1 Under 8 if the amount of the funds exceeded $10,000; (E) an offense described 1 “Sexual abuse of a minor” is but one in– of the dozens of aggravated felonies (i) section 842(h) or (i) of catalogued in the twenty-one subsections Title 18, or section 844(d), of 8 U.S.C. § 1101(a)(43). Because the (e), (f), (g), (h), or (i) of discussion that follows in this opinion that title (relating to draws on many of those subsections, we explosive materials rescribe the statute in full for the offenses); convenience of the reader: (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), The term “aggravated felony” means— (p), or (r) or 924(b) or (h) (A) murder, rape, or sexual of Title 18 (relating to abuse of a minor; firearms offenses); or (B) illicit trafficking in a (iii) section 5861 of Title controlled substance (as 26 (relating to firearms defined in section 802 of offenses); Title 21), including a drug (F) a crime of violence (as trafficking crime (as defined in section 16 of defined in section 924(c) of Title 18, but not including Title 18); a purely political offense) (C) illicit trafficking in for which the term of firearms or destructive imprisonment at least one devices (as defined in year; section 921 of Title 18) or (G) a theft offense in explosive materials (as (including receipt of stolen defined in section 841(c) of property) or burglary that title); offense for which the term (D) an offense described in of imprisonment at least section 1956 of Title 18 one year; (relating to laundering of (H) an offense described in monetary instruments) or section 875, 876, 877, or section 1957 of that title 1202 of Title 18 (relating (relating to engaging in to the demand for or monetary transactions in receipt of ransom);

3 (I) an offense described in in— section 2251, 2251A, or (i) section 793 (relating to 2252 of Title 18 (relating gathering or transmitting to child pornography); national defense (J) an offense described in information), 798 (relating section 1962 of Title 18 to disclosure of classified (relating to racketeer information), 2153 influenced corrupt (relating to sabotage) or organizations), or an 2381 or 2382 (relating to offense described in treason) of Title 18; section 1084 (if it is a (ii) section 421 of Title 50 second or subsequent (relating to protecting the offense) or 1955 of that identity of undercover title (relating to gambling intelligence agents); or offenses), for which a (iii) section 421 of Title 50 sentence of one year (relating to protecting the imprisonment or more may identity of undercover be imposed; agents); (K) an offense that— (M) an offense that— (i) relates to the owning, (i) involves fraud or deceit controlling, managing, or in which the loss to the supervising of a victim or victims exceeds prostitution business; $10,000; or (ii) is described in section (ii) is described in section 2421, 2422, or 2423 of 7201 of Title 26 (relating Title 18 (relating to to tax evasion) in which the transportation for the revenue loss to the purpose of prostitution) if Government exceeds committed for commercial $10,000; advantage; or (N) an offense described in (iii) is described in any of paragraph (1)(A) or (2) of sections 1581-1585 or section 1324(a) of this title 1588-1591 of Title 18 (relating to alien (relating to peonage, smuggling), except in the slavery, involuntary case of a first offense for servitude, and trafficking which the alien has in persons); affirmatively shown that (L) an offense described the alien committed the

4 offense for the (and no other individual) to purpose of assisting, violate a provision of this abetting, or aiding chapter; only the alien's (Q) an offense relating to a spouse, child, or failure to appear by a parent (and no other defendant for service of individual) to sentence if the underlying violate a provision offense is punishable by of this chapter imprisonment for a term of (O) an offense described in 5 years or more; section 1325(a) or 1326 of (R) an offense relating to this title committed by an commercial bribery, alien who was previously counterfeiting, forgery, or deported on the basis of a trafficking in vehicles the conviction for an offense identification numbers of described in another which have been altered subparagraph of this for which the term of paragraph; imprisonment is at least (P) an offense (i) which one year; either is falsely making, (S) an offense relating to forging, counterfeiting, obstruction of justice, mutilating, or altering a perjury or subornation of passport or instrument in perjury, or bribery of a violation of section 1543 of witness, for which the term Title 18 or is described in of imprisonment is at least section 1546(a) of such one year; title (relating to document (T) an offense relating to a fraud) and (ii) for which failure to appear before a the term of imprisonment is court pursuant to a court at least 12 months, except order to answer to or in the case of a first offense dispose of a charge of a for which the alien has felony for which a sentence affirmatively shown that of 2 years' imprisonment or the alien committed the more may be imposed; and offense for the purpose of (U) an attempt or assisting, abetting, or conspiracy to commit an aiding only the alien's offense described in this spouse, child, or parent paragraph.

5 U.S.C. § 1227(a)(2)(A)(iii), an alien designated in the statute, has indeed convicted of an aggravated felony is . . . engaged in sexual abuse of a removable. The Immigration Judge (IJ) minor as defined in Title 18. agreed with the government’s position, The Board of Immigration Appeals noting that “the sentencing order of the (BIA) affirmed the IJ’s decision without [Delaware] Court reflects clearly, under opinion. See 8 C.F.R. § 1003.1(e)(4).2 special conditions of probation, ‘note: Under 8 U.S.C. § 1252(a)(2)(C) and our victim is under 16 years of age.’” Citing decision in Drakes v. Zimski, 240 F.3d 18 U.S.C. § 3509(2) (which defines the 246, 247 (3d Cir. 2001), we have age of majority as 18), the IJ explained jurisdiction to consider our jurisdiction that “the victim was under 16 years of age over this timely petition for review of a and, consequently, would be classified as final decision of the BIA. a minor.” The IJ then looked to 18 U.S.C. § 3509(8) for the definition of “sexual abuse,” which includes “sexually explicit II. Standard of Review conduct”: This case turns on a question of The term sexually explicit conduct statutory interpretation—specifically, the includes touching of one’s breast meaning and application of the aggravated under [18 U.S.C. § 3509(9)(A)]. felony of “sexual abuse of a minor.” As Consequently, the Court finds that we noted in Patel v. Ashcroft, 294 F.3d the respondent has engaged in sexually explicit conduct of a child. Likewise, the Court would find that 2 the respondent’s conviction, Singh also challenges the BIA’s notwithstanding the fact that the procedure for affirmance without age of the victim is not specifically opinion. We approved these streamlining regulations in Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en The term applies to an offense described banc), which was decided after Singh in this paragraph whether in violation of filed his opening brief. Although Dia Federal or State law and applies to such may not dispose of Singh’s an offense in violation of the law of a nondelegation and judicial economy foreign country for which the term of arguments against the streamlining imprisonment was completed within the regulations, those arguments would be previous 15 years. Notwithstanding any better addressed to the Court en banc. At other provision of law (including any all events, our resolution of this case on effective date), the term applies alternative grounds avoids the need to regardless of whether the conviction was confront the novel questions raised in entered before, on, or after September Singh’s challenge to the streamlining 30, 1996. regulations.

6 465, 467 (3d Cir. 2002), “there is some Board’s interpretation, so long as it confusion surrounding the proper standard is reasonable. Id. of review in cases such as this.” Patel, Lee v. Ashcroft, 368 F.3d 218, 222 (3d Cir. which was an aggravated felony case, 2004). discusses at length the role of Chevron deference in cases interpreting the Canvassing the dozen aggravated Immigration and Nationality Act (INA) felony cases decided by this Court, one generally, and the aggravated felony indisputable and surprising pattern statute of 8 U.S.C. § 1101(a)(43) in emerges: We have never affirmatively particular. In our most recent aggravated deferred to an interpretation by the BIA (or felony case, we described the scope of our an IJ) of 8 U.S.C. § 1101(a)(43), i.e., of Chevron deference thus: whether the crime at issue constitutes an aggravated felony. Many times we have “The first step in interpreting a not even discussed Chevron deference to statute is to determine ‘whether the the BIA, irrespective of whether we language at issue has a plain and ultimately agreed or disagreed with the unambiguous meaning with regard Board. See Munroe v. Ashcroft, 353 F.3d to the particular dispute in the 225 (3d Cir. 2003); Wilson v. Ashcroft, case.’” [Valansi v. Ashcroft, 278 350 F.3d 377 (3d Cir. 2003); Bovkun v. F.3d 203, 209 (3d Cir. 2002)] Ashcroft, 283 F.3d 166 (3d Cir. 2002); (quoting Marshak v. Treadwell, United States v. Graham, 169 F.3d 787 (3d 240 F.3d 184, 192 (3d Cir. 2001)). Cir. 1999). We also have suggested that If the statutory meaning is clear, we conduct de novo review because the our inquiry is at an end. Id. If the question goes to our jurisdiction. See statutory meaning is not clear, we Nugent v. Ashcroft, 367 F.3d 162, 165 (3d must try to discern Congress’ intent Cir. 2004); Valansi, 278 F.3d at 207-08 using the ordinary tools of statutory (citing cases). Twice we have declined to construction. See INS v. reach the question of deference because Cardoza-Fonseca, 480 U.S. 421, we concluded that our result would be the 447-48 (1987). “If, by employing same on deferential review as it would on traditional tools of statutory plenary review. See Patel, 294 F.3d at construction, we determine that 468; Drakes v. Zimski, 240 F.3d 246, 251 Congress’ intent is clear, that is the (3d Cir. 2001). In two cases, we end of the matter.” Valansi, 278 acknowledged that we must defer to the F.3d at 208 (quoting Bell v. Reno, BIA if the statute’s meaning is ambiguous, 218 F.3d 86, 90 (2d Cir. 2000)). If but both times we held that the BIA’s we are unable to discern Congress’ interpretation conflicted with the statute’s intent using the normal tools of plain meaning. See Lee, 368 F.3d at 224- statutory construction, we will 25; Valansi, 278 F.3d at 208. In yet generally give deference to the another case we affirmatively held that the

7 BIA’s interpretation of 18 U.S.C. § 16, expertise in a meaningful way’ but which is incorporated by reference in the presents instead ‘a pure question of aggravated felony statute, 8 U.S.C. statutory construction for the courts to § 1101(a)(43)(F), was not subject to the decide.’” (quoting Sandoval v. Reno, 166 general principles of Chevron, but that, F.3d 225, 239-40 (3d Cir. 1999) (quoting even if it was, the specific interpretation at INS v. Cardoza-Fonseca, 480 U.S. 421, issue was unreasonable and therefore not 446 (1987))) (alteration in original)). entitled to deference. See Francis v. Reno, Second, we have been mindful, as in 269 F.3d 162, 168 & n.8 (3d Cir. 2001). Nugent, 367 F.3d at 165, and Valansi, 278 Finally, two decisions appear to be more F.3d at 207-08, that although the statute is deferential to the BIA. In Gerbier v. part of Title 8, and not Title 28, of the Holmes, 280 F.3d 297, 310 (3d Cir. 2002), United States Code, it nonetheless controls we found the BIA’s interpretation o u r j u r i s d ic t i o n (via 8 U.S . C . “persuasive” (hardly a strong general § 1252(a)(2)(C)) and we normally consider endorsement), while in Steele v. Blackman, jurisdictional matters de novo. 236 F.3d 130, 133 (3d Cir. 2001), we Moreover, here the IJ offered no reason stated that “if a statute administered by the for his decision not to apply Taylor’s INS is ambiguous, and the BIA has categorical approach; the BIA, by provided a reasonable interpretation of its affirming without opinion, gave no language, we must simply ask whether the considered and authoritative agency-wide BIA’s construction is a permissible one.” interpretation of the statute; and now on Even in Steele, however, we looked more petition for review, the government’s closely into the BIA’s interpretation, entire position on deference consists of a finding it “troublesome,” bu t we single citation to an admittedly vague “assume[d] its validity” because even the comment from this Court in Patel, 294 BIA’s own interpretation of the statute did F.3d at 467 (“[S]ome deference is still not support its disposition of the case. 236 required under Chevron, even though we F.3d at 136 & n.5. are reviewing a purely legal question such Why then have we never found it as the BIA’s interpretation of a criminal necessary and appropriate to defer to the statute.”). Under all these circumstances, BIA’s or IJ’s interpretation of 8 U.S.C. we conclude that the IJ’s summary § 1101(a)(43)? First, as we explained in application of § 1101(a)(43)(A)—it can Francis, the interpretation and exposition hardly be described as a full-blown of criminal law is a task outside the BIA’s reasoned interpretation— is not entitled to sphere of special competence. See 269 deference. As we have done in previous F.3d at 168; see also Drakes, 240 F.3d at cases, however, we will here expressly 250 (“Chevron deference is not required reserve decision on whether some BIA where the interpretation of a particular interpretations of § 1101(a)(43) are statute does not ‘implicate[] agency entitled to deference.

8 III. Discussion 601, the Taylor Court adopted the “formal categorical approach.” Some of our cases interpreting 8 U.S.C. § 1101(a)(43) have employed the rule of The facts of Taylor provide an apt Taylor, described there as the “formal illustration of the principle at work: Taylor categorical approach,” 495 U.S. at 600. had been twice convicted of second degree See, e.g., Francis, 269 F.3d at 171-72. burglary in Missouri. Under Missouri law, Taylor addressed the meaning and second degree burglary encompassed application of the term “burglary” in 18 several discrete sets of statutory elements. U.S.C. § 924(e), which imposes enhanced As the Court explained, “All seven sentences on defendants convicted under offenses required entry into a structure, but the unlawful-possession-of-a-firearm they varied as to the type of structure and statute, 18 U.S.C. § 922(g), when the the means of entry involved.” Id. at 578 defendant has three prior convictions for n.1. Compared with the definition of specified offenses, including “burglary.” “generic burglary” adopted by the Taylor’s analysis can be readily imported Court—“convict[ion] of any crime, here, because 8 U.S.C. § 1101(a)(43) is regardless of its exact definition or label, similar to 18 U.S.C. § 924(e) in that it too having the basic elements of unlawful or enumerates offenses, conviction of which unprivileged entry into, or remaining in, a places an alien in the category of building or structure, with intent to commit “aggravated felon.” Taylor put the a crime,” id. at 599—not all variants of “general issue” in interpreting this sort of Missouri second degree burglary qualified statute as follows: under the federal sentencing enhancement statute. Since the formal categorical whether the sentencing court in approach does not permit looking beyond applying § 924(e) must look only to the literal elements of the statute (i.e., to the statutory definitions of the prior the facts supporting the convictions), the offenses, or whether the court may Court could not say that Taylor had been consider other evidence concerning p r e v i o u s l y c o n v i c t ed o f c ri m es the defendant’s prior crimes. The encompassing the elements of generic Courts of Appeals uniformly have burglary. See id. at 602. Accordingly, the held that § 924(e) mandates a Court remanded for further development formal categorical approach, on the question of “which of [the M issouri looking only to the statutory second degree burglary] statutes were the definitions of the prior offenses, bases for Taylor’s prior convictions.” Id. and not to the particular facts The inquiry was limited to the statute of underlying those convictions. conviction, however, as the formal 495 U.S. at 600. Citing “the practical categorical approach “generally requires difficulties and potential unfairness [to a the trial court to look only to the fact of defendant] of a factual approach,” id. at conviction and the statutory definition of

9 the prior offense.” Id. The Taylor Court unnecessary for our purposes to give a also acknowledged that, under limited comprehensive definition of “sexual abuse circumstances, resort to the charging of a minor,” and we reserve decision on instrument may be permissible: “[The that question. It is sufficient to say that formal categorical approach] may permit “sexual abuse of a minor” entails some the sentencing court to go beyond the mere conduct involving a minor, i.e., someone fact of conviction in a narrow range of under the age of eighteen. cases where a jury was actually required to This is enough to defeat the find all the [necessary] elements.” Id. government’s argument, for § 767 says The questions presented in this case are nothing whatsoever about the age of the readily apparent: Does Taylor’s formal victim. In full, the statute under which categorical approach apply to “sexual Singh was convicted reads: abuse of a minor” under 8 U.S.C. A person is guilty of unlawful § 1101(a)(43)(A), and if it does, does a sexual contact in the third degree conviction under 11 Del. C. § 767 when the person has sexual contact nonetheless qualify as a conviction for with another person or causes the sexual abuse of a minor? We find it more victim to have sexual contact with efficient to address the second question the person or a third person and the first. person knows that the contact is A. Under the Formal Categorical either offensive to the victim or Approach of Taylor, Does a Conviction occurs without the victim’s Under consent. 11 Del. C. § 767 Qualify as a Conviction Since a finding of the age of the victim is for “Sexual Abuse of a Minor”? not required for conviction, § 767 does not appear to be an aggravated felony (or at The government first argues that, even least not the aggravated felony of sexual under the formal categorical approach, a abuse of a minor). conviction under 11 Del. C. § 767 is a conviction for sexual abuse of a minor. To In the face of the literal and evaluate this argument, we follow the unambiguous text of § 767, the Supreme Court’s two-step approach in government argues that the statute Taylor, where it first construed the term nonetheless criminalizes sexual abuse of a “burglary” in the federal statute, 495 U.S. minor. Of course it is irrelevant that at 590-99, and then compared the elements sexually abusing a minor may be sufficient of the Missouri statutes to the federal for conviction under the statute; what definition, id. at 602. The IJ looked to 18 matters is whether such conduct is U.S.C. § 3509(2), (8), and (9) to define necessary for such a conviction. The “sexual abuse of a minor.” While we have government seems to argue that the overall no quarrel with this approach, it is statutory scheme in Delaware establishes

10 that sexual abuse of a minor is necessary statutory scheme. For example, 11 Del. C. for a conviction under § 767. Even §§ 767-773 are the gamut of traditional sex assuming that appeals to statutes other offenses under Delaware law, from than the statute of conviction are within misdemeanor sexual assault to first degree the bounds of the formal categorical rape. Adopting the government’s approach, we still cannot agree with the argument would imply not only that § 767 government’s position. is an offense against a child, but also that §§ 768-773 are as well. This would have 10 Del. C. § 922(a)(19) provides the the astonishing result that all sex offenses Delaware Family Court with exclusive in Delaware (as Delaware does not define original crimin al jurisdic tion over any general sex offenses outside this list) “unlawful sexual conduct in the third require that the victim be a child. These degree against a child under 11 Del. C. problems only reinforce our conclusion § 767.” Similarly, 11 Del. C. from the plain meaning of the statute: 11 § 1112(b)(4)(A) defines “sexual offender” Del. C. § 767 does not include as an as a person who has been convicted of element that the victim be a minor, and “any sexual offense upon a child under 16 accordingly, under the formal categorical years of age under § 767, § 768, § 769, approach of Taylor, Singh does not stand § 770, § 771, § 772, § 773 . . . .” The convicted of sexual abuse of a minor. government would have us read these provisions as definitions of § 767. We do B. Does the Formal Categorical not agree. There are at least two problems Approach of Taylor Apply to the with the government’s approach. First, Aggravated Felony of “Sexual Abuse of “against a child” and “upon a child,” in 10 a Minor”? Del. C. § 922(a)(19) and 11 Del. C. Because the IJ’s decision cannot stand § 1112(b)(4)(A), respectively, are better if we apply Taylor’s formal categorical read not as definitions of Del. Code Ann. approach, we mu st turn to the tit. 11, § 767, but rather as qualifications or government’s fallback argument that the limitations on the§ 767 convictions that formal categorical approach does not apply are intended to be within the scope of the to “sexual abuse of a minor” under 8 jurisdictional and sex offender statutes. U.S.C. § 1101(a)(43)(A ). If the Unless these phrases are read as qualifiers, government is free from the strictures of they are superfluous—why not, in the formal categorical approach, we would § 1112(b)(4)(A), simply omit “upon a simply review the IJ’s decision under the child under 16 years of age” if the statutes deferential substantial evidence standard, referred to already incorporate such a evaluating whether the factual record notion? before the IJ could fairly support the A second and independent problem conclusion that Singh was convicted of with the government’s proposed reading is sexual abuse of a minor. See Dia, 353 that it leads to absurdities elsewhere in the F.3d at 247-49 (describing the substantial

11 evidence standard). As the record supports categorical approach.3 Thus, in the this conclusion—indeed, Singh concedes sections that follow, we address the other that, as a factual matter, he was convicted nine cases, which all (explicitly or for touching the breast of his minor implicitly) take a position on Taylor’s cousin—we would dismiss the petition if applicability. the formal categorical approach did not a. Cases employing the formal apply here. But for the reasons that categorical approach of Taylor follow, we conclude that the formal categorical approach does apply. We expressly invoked and applied Taylor’s formal categorical approach in 1. Our prior aggravated felony Francis. There, the question presented jurisprudence was whether “a state misdemeanor We have decided a dozen cases conviction for vehicular homicide is a implicating 8 U.S.C. § 1101(a)(43), and at ‘crime of violence’ within the meaning of times we have applied the formal 18 U.S.C. § 16,” 269 F.3d at 164, which is categorical approach of Taylor, and at incorporated by reference in the definition other times we have not. (In the latter of “aggravated felony,” 8 U.S .C. instances, though we have never explicitly § 1101(a)(43)(F). We concluded that the considered and rejected Taylor’s approach, our decisions cannot be fairly read as employing the formal categorical 3 Two of these cases—Lee and approach.) The question here, then, is Patel—turn on whether certain federal whether sexual abuse of a minor under 8 criminal offenses are directly identified U.S.C. § 1101(a)(43)(A) is more akin to in 8 U.S.C. § 1101(a)(43). See Lee, 368 those provisions of 8 U.S.C. § 1101(a)(43) F.3d at 224 (holding that 8 U.S.C. to which we have applied the formal § 1101(a)(43)(M)(ii) is the exclusive categorical approach, or to those to which category for federal tax offenses, and we have not. We begin with a thus that federal tax offenses are not comprehensive survey of this Court’s covered by 8 U.S.C.§ 1101(a)(43) aggravated felony jurisprudence. The (M)(i)); Patel, 294 F.3d at 470 (holding United States Supreme Court has not that the reference in 8 U.S.C. decided any case involving 8 U.S.C. § 1101(a)(43)(N) to “alien smuggling” § 1101(a)(43), so we consider only our does not overcome the specific cross- own cases in this survey. Three of the reference in that section to statute twelve cases we have decided, see supra criminalizing alien harboring, of which Part II, do not even implicitly involve the petitioner had been convicted). The third question whether to use Taylor’s formal case, Graham, resolves a scrivener’s error in 8 U.S.C. § 1101(a)(43)(G) and implicates Taylor only indirectly. We return to Graham infra Part III.B.1.c.

12 petitioner’s conviction was not a crime of continued: violence under 18 U.S.C. § 16, and On its face, homicide by vehicle is therefore that he was not an aggravated certainly not an offense that “by its felon. Although we were able to reach this nature, involves a substantial risk result on an analysis of 18 U.S.C. § 16 that that physical force against the did not implicate Taylor, Francis, 269 person or property of another may F.3d at 168-71, we also held in the be used in the course of committing alternative that, under the formal the offense.” 18 U.S.C. § 16(b). categorical approach, Francis’s conviction The BIA acknowledged that § 3732 did not satisfy 18 U.S.C. § 16(b)’s involves a range of behavior that requirement that a crime of violence be “may or may not” fall under one that, “by its nature, involves a § 16(b). substantial risk that physical force against the person or property of another may be The categorical approach does “permit used in the course of committing the the sentencing court to go beyond the mere offense.” fact of conviction in a narrow range of cases where a jury was actually required to We explained that under the formal find all the elements of [the relevant] categorical approach, generic [offense].” Taylor, 495 U.S. at we must look to Pennsylvania’s 602. Here, the criminal complaint stated: definition of homicide by vehicle. . Southbound on Route 95 in the . . 75 Pa. C.S.A. § 3732 provides: vicinity of Comly Street the Any person who unintentionally defendant unintentionally caused causes the death of another person the death of the decedent # 1 Harry while engaged in the violation of B. Rutter, Driver of vehicle # 1, by any law of this Commonwealth or operating a 198 5 Chevrolet municipal ordinance applying to the Caprice, Pa. License ADB 7268, operation or use of a vehicle or to while his operating privilege was the regulation of traffic except suspended, and in such a manner as section 3731 (relating to driving to cause a eight vehicle accident under influence of alcohol or between four cars, one van, and controlled substance) is guilty of three tractor trailers and a near miss homicide by veh icle, a by a tanker truck carrying 8000 misdemeanor of the first degree, gallons of gasoline, causing the when the violation is the cause of deaths of two people and injuring a death. third. 75 Pa. C.S.A. § 3732. (emphasis added). Francis, 269 F.3d at 171-72. We Francis was therefore charged with the

13 “unintentional” conduct, of operating an the BIA in applying 8 U.S .C . automobile in such a manner as to cause a § 1101(a)(43)(B), which categorizes as an car accident resulting in two deaths. aggravated felony “illicit trafficking in a controlled substance (as defined in section Id. at 172 (some citations omitted). 802 of Title 21), including a drug As Francis’s predicate “violation of trafficking crime (as defined in section [the] law” for purposes of 75 Pa. Cons. 924(c) of Title 18).” In Steele, our first Stat. § 3732 was driving with a suspended case to examine the hypothetical federal license, and not something that “by its felony approach, we explained it this way: nature, involves a substantial risk [of] Section 924(c)(2) of Title 18 physical force,” 18 U.S.C. § 16(b), we defines “drug trafficking crime” as could not agree with the BIA that his meaning “any felony punishable offense was a crime of violence. under the Controlled Substance Significantly, we disagreed with the BIA’s Act[,] . . . the Controlled Substance conclusion that Francis’s conduct involved Import and Export Act[s] . . . or the a substantial risk of physical force because Maritime Drug Law Enforcement it was reckless, stating: “It may well have Act . . . .” Accordingly, the BIA been [reckless]. However, recklessness finds within [this] category of was not charged, and he was not convicted aggravated felony convictions any of an offense requiring that mens rea.” federal conviction for a violation of Francis, 269 F.3d at 173. In sum, the BIA one of the specified statutes that is reasoned from the facts supporting a felony conviction under federal Francis’s conv iction, but we felt law, i.e., a conviction for an offense constrained to grant the petition for review punishable by imprisonment for by applying Taylor’s formal categorical over one year. See 18 U.S.C. approach and confining our inquiry to the § 3559. M ore relevant for present statute of conviction, illuminated by the purposes, the BIA understands this charging instrument. . . . category to encompass Three other cases—Steele, Gerbier, convictions for state offenses, and Wilson—apply Taylor through their however characterized by the state, use of the “hypothetical federal felony” (or “hypothetical federal conviction”) approach.4 This method was developed by qualifies as well. See Gerbier, 280 F.3d at 313. In practice, “illicit trafficking in a controlled substance” works very much 4 The hypothetical federal felony like “crime of violence” (as discussed approach is only one “route” to supra in Francis), so we will discuss it classification as an aggravated felony no further than to say that our decisions under 8 U.S.C. § 1101(a)(43)(B); “illicit involving it are consistent with Taylor’s trafficking in a controlled substance” categorical approach.

14 if those offenses would which an alien ‘could be convicted be “punishable” under and punished’ under the cited o n e o f t h e t h re e federal laws.” Matter of Barrett[, specified federal statutes 20 I. & N. Dec. 171, 174 (BIA if federally prosecuted, 1990)]. so long as the Steele, 236 F.3d at 135-36 (some hypoth etical federa l alterations in original). The hypothetical conviction would be a federal felony approach is essentially the felony under federal law, formal categorical approach of Taylor, as i.e., would be punishable applied to a specific federal statute. by a term of imprisonment of over Though we did not actually approve the one year. hypothetical federal felony approach in Steele, we accepted it arguendo, because This hypothetical federal even it did not support the BIA’s conviction approach “require[s] a disposition—the proposed hypothetical comparison between the elements federal felony required a finding of an of the [state] drug offense and [the additional, prior drug conviction, a prior elements of] a federal drug conviction that, though existing in fact, provision referenced in 18 U.S.C. had not been proven in the course of § 924(c)(2) . . . .” Matter of Davis[, Steele’s state criminal proceedings. Id. at 20 I. & N. Dec. 536, 544 (BIA 137. We thus granted Steele’s petition for 1992)]. Since the basis for the review. A little over a year later, in incapacities under the Immigration Gerbier, we did adopt the BIA’s Act is “convict[ion] of an hypothetical federal felony approach to 8 aggravated felony,” 8 U.S.C. U.S.C. § 1101(a)(43)(B). 280 F.3d at 308- § 1229b(a), the Board looks to what 11. But as in Steele, Gerbier’s status as a t h e c o n v icting court m u st recidivist had not been litigated or necessarily have found to support otherwise decided in his state criminal the conviction and not to other proceeding, and we therefore granted his conduct in which the defendant petition for review. Id. at 317. may have engaged in connection with the offense. Thus where, as In Wilson, 350 F.3d 377, the third case here, the Service is relying on a in our hypothetical-federal-felony trilogy, state misdemeanor conviction, the we again granted the petition for review. requirements of this . . . category of There, the proposed hypothetical federal “aggravated felony convictions” are felony— 21 U.S.C. § 841(a)(1), which is “satisfied [only] by proving a the general federal felony criminal conviction that includes all the prohibition on unauthorized manufacture, elements of [a felony] offense for distribution, and possession with intent to

15 distribute of controlled analogous to a federal felony, we look to substances—included an escape clause the elements of the statutory state offense, making distribution of “a small amount of not to the specific facts.” Wilson, 350 F.3d marihuana for no remuneration” a at 381. “Since the state statutory elements misdemean or. S e e 21 U .S.C . would be satisfied by proof of either § 841(b)(1)(D) and (b)(4). Wilson had distribution or possession with intent to possessed with the intent to distribute a distribute, we cannot draw the federal small amount of marijuana, a misdemeanor analogy by presuming that the statute only under N.J. Stat. Ann. § 2C:35-5(b)(11). 5 covers possession.” Id. at 382. Wilson Wilson, 350 F.3d at 381. He argued to this may thus represent the zenith of our Court that, because his state conviction did faithfulness to Taylor. not necessarily imply that he sought Two other cases also follow Taylor’s remuneration for his distribution, it could formal categorical approach— though only not therefore be shown that his conduct silently (in the case of Bovkun) or weakly would have been a felony under federal (in the case of Drakes). Although we did controlled substance law—he might have not cite Taylor in Bovkun, we plainly been able to invoke the escape clause. Id. followed the formal categorical approach. The government countered that There, the petitioner had been convicted of Wilson’s conviction was for possession, ma king te rr or istic thr ea ts u n d er not distribution (though both distribution Pennsylvania law,6 and the government and possession-with-intent were included in New Jersey’s law, see supra note 5), 6 and that he therefore would not have been In full, 18 Pa. Cons. Stat. § 2706 eligible for the escape clause. We rejected (1998) (in effect at the time of Bovkun’s the government’s invitation to look beyond conviction) provided: the New Jersey statute itself, citing Steele A person is guilty of a and Gerbier for the proposition that “in misdemeanor of the first evaluating whether a state violation is degree if he threatens to commit any crime of violence with intent to 5 N.J. Stat. Ann. § 2C:35-5(a)(1) terrorize another or to provides that it is unlawful “[t]o cause evacuation of a manufacture, distribute or dispense, or to building, place of possess or have under his control with assembly, or facility of intent to manufacture, distribute or public transportation, or dispense, a controlled dangerous otherwise to cause serious substance or controlled substance public inconvenience, or in analog.” N.J. Stat. Ann. § 2C:35- reckless disregard of the 5(b)(11) provides that marijuana is such risk of causing such terror a controlled substance. or inconvenience.

16 sought to classify him as an aggravated noted above, see supra Part III.A felon under 8 U.S.C. § 1101(a)(43)(F) (discussing Taylor’s two-step approach), (incorporating 18 U.S.C. § 16 by Taylor requires both interpretation of the reference), for committing “a crime of federal statute describing the offense, and violence.” 7 Bovkun argued that “mere a comparison with the statute of criminal public inconvenience” would not qualify conviction. Though most of our as a crime of violence, but we rejected his aggravated felony cases have turned on the argument because it confused the actus reus of the offense (“threat[] to commit a crime of violence”) and the mens rea defraud, deceive or injure (“with intent to . . . or reckless disregard of another person, or knowing . . .”). Bovkun, 283 F.3d at 170. We held that the person is that it was the actus reus of the state facilitating a fraud or injury offense that had to be aligned with the to be perpetrated by federal statute, and on that basis we anyone, the person: concluded that a Pennsylvania conviction (1) Alters any written for making terroristic threats was a crime instrument of another of violence as defined in 18 U.S.C. § 16. person without the other Finally, in Drakes, we considered 8 person’s authority; or U.S.C. § 1101(a)(43)(R), which classifies (2) Makes, completes, as an aggravated felony “an offense executes, authenticates, relating to . . . forgery.” Though the facts issues or transfers any were not entirely clear, the petitioner had written instrument which been convicted of second-degree forgery purports to be the act of under Delaware law in connection with another person, whether providing a false name to the Delaware real or fictitious, who did State Police during a traffic stop.8 As not authorize that act, or to have been executed at a time or place or in a 7 In relevant part, 18 U.S.C. § 16(a) numbered sequence other defines a “crime of violence as “an than was in fact the case or offense that has as an element the use, to be a copy of an original attempted use, or threatened use of when no original existed; physical force against the person or or property of another.” (3) Possesses a written instrument, knowing that it 8 In relevant part, 11 Del. C. § 861 was made, completed or provides: altered under (a) A person is guilty of circumstances constituting forgery when, intending to forgery.

17 second step, Drakes concentrated more on F.3d at 226 (citing N.J. Stat. Ann. 2C:20- the first. In Drakes, we discussed at length 4 10 ); Valansi, 278 F.3d at 210 (quoting 18 the meaning of “forgery” in 8 U.S.C. § 1101(a)(43)(R). See 240 F.3d at 248-50. Upon determinin g that “Congress (1) creates or reinforces a evidenced an intent to define forgery in its false impression, including broadest sense,” id. at 249, it became easy false impressions as to law, to conclude that 11 Del. C. § 861 came value, intention or other within the wide sweep of the offenses state of mind; but described in 8 U.S.C. § 1101(a)(43)(R), deception as to a person’s see Drakes, 240 F.3d at 250. Thus Drakes intention to perform a only briefly touched on Taylor’s second promise shall not be step—the formal categorical approach as inferred from the fact alone we have been discussing it. that he did not subsequently perform the b. Cases not employing the formal promise; categorical approach of Taylor (2) prevents another from We turn now to the cases in which we acquiring information did not confine ourselves to the formal which would affect his categorical approach of Taylor. All three judgment of a transaction; such cases—Nugent, Munroe, and or Valansi—concerned 8 U .S.C . (3) fails to correct a false § 1101(a)(43)(M)(i), which defines as an impression which the aggravated felony an offense that deceiver previously created “involves fraud or deceit in which the loss or reinforced, or which the to the victim or victims exceeds $10,000.” deceiver knows to be In all three cases, the relevant criminal influencing another to statute did not include a “loss greater than whom he stands in a $10,000” element. See Nugent, 367 F.3d fiduciary or confidential at 168 n.2 (quoting 18 Pa. Cons. Stat. relationship. § 3922(a)9); Munroe, 252 10 In full, N.J. Stat. Ann. 2C:20-4 provides: 9 In full, 18 Pa. Cons. Stat. § 3922(a) A person is guilty of theft provides: if he purposely obtains A person is guilty of theft property of another by if he intentionally obtains deception. A person or withholds property of deceives if he purposely: another by deception. A a. Creates or reinforces a person deceives if he false impression, including intentionally: false impressions as to law,

18 U.S.C. § 656 11 ).12 Yet in these cases we expressly rested our holding on the value, intention or other state of mind, and including, but the group addressed. not limited to, a false impression that 11 In relevant part, 18 U.S.C. § 656 the person is provides: soliciting or Whoever, being an officer, collecting funds for director, agent or employee a charitable purpose; of, or connected in any but deception as to a capacity with any . . . person’s intention to national bank . . . perform a promise embezzles, abstracts, shall not be inferred purloins or willfully from the fact alone misapplies any of the that he did not moneys, funds or credits of subsequently such bank . . . shall be perform the [fined and/or imprisoned]. promise; We also note that in Valansi’s b. Prevents another from plea agreement, she stipulated (for acquiring information Sentencing Guidelines purposes) only which would affect his that the value of the embezzled funds judgment of a transaction; “was in excess of $1,000.” Valansi, 278 or F.3d at 206. c. Fails to correct a false 12 impression which the Although none of these statutes has deceiver previously created an amount-of-loss element (i.e., some or reinforced, or which the minimum threshold amount of loss that deceiver knows to be must be met for a conviction), there are influencing another to cognate statutes that do. See, e.g., Cal. whom he stands in a Penal Code § 487(a) (grand theft is fiduciary or confidential committed “[w]hen the money, labor, or relationship. real or personal property taken is of a The term “deceive” does value exceeding four hundred dollars not, however, include ($400)”); Wash. Rev. Code falsity as to matters having § 9A.56.030(1)(a) (theft in the first no pecuniary significance, degree is theft of “[p]roperty or services or puffing or exaggeration which exceed(s) one thousand five by statements unlikely to hundred dollars in value other than a deceive ordinary persons in firearm”).

19 underlying facts about the amount of loss required element. Some but not all involved: In Nugent, 367 F.3d at 169, the convictions under 18 U.S.C. § 656 bad check at issue was in the amount of qualify as an aggravated felony $4831.26 (and thus insufficient to support under that definition: a conviction the aggravated felony classification); in for embezzlement with specific Munroe, 353 F.3d at 226, several bad intent to defraud qualifies as an checks written by the petitioner totaled in offense involving fraud or deceit, excess of $10,000 (and thus were and thus an aggravated felony; a sufficient to support the aggravated felony conviction with only the specific classification). intent to injure does not. Valansi, in which the petitioner had Valansi, 278 F.3d at 217. embezzled over $400,000 in cash and Under a strict reading of Taylor’s checks in her capacity as a bank teller, 278 formal categorical approach, this would be F.3d at 205, bears further discussion. The the end of the story, because a conviction monetary threshold was clearly reached in under 18 U.S.C. § 656 does not necessarily Valansi. See 278 F.3d at 209 (“Valansi establish fraudulent intent any more than does not dispute that her conviction Singh’s conviction under 11 Del. C. § 767 s a ti s f ie s t he $ 10 ,0 0 0 m o n e t a ry necessarily establishes sexual abuse of a requirement.”). The case turned instead on minor (because, after all, some but not all whether Valansi’s crime “involve[d] fraud convictions under 11 Del. C. § 767 involve or deceit.” In an extensive discussion of a minor victim). The Valansi panel went 18 U.S.C. § 656, the Court focused on the on, however: mens rea requirement that had been judicially imposed on the statute: The We have cautioned that where “a embezzler must do so “with the intent to criminal statute on its face fits the injure or defraud the bank.” Valansi, 278 INA’s deportability classification . F.3d 210 (citing United States v. . . [,][t]o go beyond the offense as Schoenhut, 576 F.2d 1010, 1024 (3d Cir. charged and scrutinize the 1978) (citing United States v. Schmidt, 471 underlying facts would change our F.2d 385 (3d Cir. 1972))). We held that inquiry from a jurisdictionalone into a full consideration this disjunctive mens rea of the merits. Such an approach would fly requirement—either intent to defraud or in the face of the jurisdiction limiting intent to injure suffices— put the statute language of IIRIRA.” Drakes, 240 F.3d at with one foo t in 8 U.S .C. 247-48. However, in this case we have § 1101(a)(43)(M )(i) and one foot out: determined that the criminal statute does not fit squarely within the INA’s The p la in meaning of deportability classification because some, § 1101(a)(43)(M)(i) defines an but not all, of the convictions under 18 aggravated felony as an offense that U.S.C. § 656 qualify as offenses involving has fraud or deceit as at least one fraud or deceit. Because we are unable to

20 determine from the face of the statute Taylor’s categorical approach. Thus, whether Valansi’s conviction is among whatever disagreements there were within those that qualify as an aggravated felony, the panel in Valansi, all agreed that the we must take the additional step of case required a look beyond the literal examining the underlying facts to elements of 18 U.S.C. § 656. determine whether Valansi pled guilty to c. A governing principle? an offense involving fraud or deceit. Our survey complete, the question we Valansi, 278 F.3d at 214 (alterations in now pose is whether these original). Ultimately, we concluded that decisions—some applying Taylor, some [i]n Valansi’s case, the specific not—can be reconciled under a governing intent to defraud was not principle. We believe that they can. As established. It appears that Valansi Taylor itself demonstrates, there are two was counseled to avoid admitting to facets to these cases: the federal statute that intent, and the plea colloquy enumerating categories of crimes on the fails to pin down the mens rea one hand (the “enumerating statute”), and element sufficiently for us to the criminal statute of conviction, whether conclude that Valansi acted with federal or state, on the other (the “statute the intent to defraud rather than to of conviction”). While Taylor’s formal injure her employer. categorical approach presumptively applies in comparing the two, under Id. at 217. Accordingly, we granted the certain conditions, both the enumerating petition for review. statute and the statute of conviction can In dissent, Judge Scirica concluded that require a departure from the formal embezzlement under 18 U.S.C. § 656 is categorical approach. always a crime of fraud or deceit, and In the case of the enumerating statute, therefore had no need to analyze the a departure from the formal categorical i n t e n t - t o - d e f r a u d / i n te n t - to - i n j u r e approach seems warranted when the terms distinction. While this seems more of the statute invite inquiry into the facts consistent with the formal categorical underlying the conviction at issue. The approach of Taylor, Judge Scirica’s dissent qualifier “in which the loss to the victim or still relies on (1) the plea colloquy (to victims exceeds $10,000” in 8 U.S.C. establi sh that V alansi c om mitte d § 1101(a)(43)(M)(i) is the prototypical embezzlement, and not “abstract[ion], example—it expresses such a specificity of purloin[ing], or . . . misappli[cation]”), and fact that it almost begs an adjudicator to (2) the factual record (to establish the examine the facts at issue. This principle fiduciary relationship between Valansi and explains our holdings in Nugent and her employing bank necessary to satisfy Munroe. Another example would be an his definition of embezzlement). Both enumerating statute specifying crimes steps are beyond the strict scope of “committed within the last two years.”

21 Such a statute could not be read to cover imprisonment is at least one year,” invites only crimes which have “within the last inquiry into the alien’s actual sentence. two years” as an element; instead, a court See Graham, 169 F.3d at 790-91. In would read “within the last two years” as contrast, provisions like 8 U.S.C. a limiting provision on crimes that would § 1101(a)(43)(J), which classifies as an otherwise qualify. aggravated felony certain racketeering and gambling offenses “for which a sentence In contrast, cases interpreting relatively of one year imprisonment or more may be unitary cate gorical c once pts— like imposed,” seem to direct inquiry toward “forgery” (Drakes), “burglary” (Taylor the statutory sentencing scheme, not the itself) or “crime of violence” (Francis and alien’s actual sentence. See Graham, 169 Bovkun)—do not look to underlying facts F.3d at 790-91. because the enumerating statute does not invite any such inquiry. Likewise, the Turning to the statute of conviction, hypothetical federal felony trilogy (Steele, there are also cases where a look into the Gerbier, and Wilson) asks only whether underlying facts—or at least the charging the elements of a federal criminal statute instrument—is called for. Valansi is a can by satisfied by reference to the actual good example of such a case: There, the statute of conviction; this presents no statute of conviction was phrased in the invitation to depart from Taylor’s formal disjunctive—a mens rea of either intent to categorical approach and examine the defraud or intent to injure would suffice underlying facts. for conviction—which, in our view, called for an exploration of which of the Though we have little case law on alternative elements was the actual basis point, the contrast we have described for conviction. Statutes phrased in the appears to be mirrored in the references in disjunctive are akin to, and can be readily 8 U.S.C. § 1101(a)(43) to the duration of converted to, statutes structured in outline sentences. Correcting for the scrivener’s form, with a series of numbered or letter error in 8 U.S.C. § 1101(a)(43)(G), we elements. See, e.g., statutes cited supra held in Graham, 169 F.3d at 791, that that notes 8-10. Such statutes may sometimes section specifies theft and burglary more clearly invite further inquiry into offenses “for which the term of exactly which subsection the defendant imprisonment [imposed is] at least one violated. The exercise of analyzing year.” This obviously invites an inquiry disjunctive statutes for an invitation to into the sentence actually imposed on the further inquiry is much more difficult than alien, rather than a categorical inquiry into that described in the preceding paragraphs, the statutory punishment for the offense. for it poses the vexing question of how far Similarly, provisions like 8 U.S.C. below the judgment or plea colloquy the § 1101(a)(43)(S), which classifies as an court may look. The cases are few and the aggravated felony certain obstruction of jurisprudence is not clear. However, in the justice offenses “for which the term of hope that it may shed some light on this

22 troublesome area, we will do our best to Taylor itself, in some ways, provides analyze the problem. an example. Taylor was convicted of second-degree burglary under some We have used a numbered subsection section of Mo. Rev. Stat. § 560 (1969); the of such a statute as a statute of conviction Court remanded for consideration of for purposes of the Taylor inquiry. See whether he was convicted under §§ Wilson, 350 F.3d at 381 (citing N.J. Stat. 560.045, .050, .055, .060, .070, .075, or Ann. § 2C:35-5(b)(11), which specifically .080. Taylor, 495 U.S. at 578 n.1. These criminalizes marijuana). In Wilson, seven separate statutory sections, each of however, the numbered paragraphs of § which contained different factual 2C:35-5(b) were distinct offenses carrying predicates for the same crime with the separate penalties, not alternate types of same penalty, are in practice very similar conduct that constituted the same offense. to a single statute defining a crime, with The lesson there is that sometimes seven numbered subsections containing disjunctive parts of statutes of conviction alternate factual predicates. And in represent distinct offenses, with distinct Taylor, the Supreme Court found that this punishments. Where different crimes with division invited further inquiry. different penalties are involved, under the categorical approach, further inquiry is Since any statute that is phrased in the clearly invited into which particular crime disjunctive can be readily converted to the petitioner was actually convicted of. outline form, it would be strange to think that Congress intended the application of In other statutes, disjunctive wording the categorical approach to turn on the or outline formatting simply describes typography used by the statute’s drafters. variations of the same offense, with no Commonly, the best way to resolve the difference in punishment and no question raised by a conviction under a distinction on the judgment of conviction. statute phrased in the disjunctive, or Even here, though, further inquiry might structured in outline form, will be to look be warranted, as we found in Valansi, to the charging instrument or to a formal because the face of the statute might not guilty plea (as we did in Valansi, for make clear whether the conviction example). But even in such cases, we qualifies as an aggravated felony. It is not have not taken the further step of looking clear that only those disjunctions reflected to facts outside the charging instrument or in the penalty or the judgment of further plea; we leave for another day the conviction are relevant for the purposes of question whether statutes phrased in the § 1101(a)(43); where some variations of disjunctive invite such inquiry beyond a the crime of conviction meet the charging instrument or a formal plea. aggravated-felony requisites and others do not, we have thus allowed further inquiry As suggested above, our jurisprudence to see which variation was actually is not a seamless web. In Wilson, we did committed. not conduct any further inquiry into the

23 underlying facts of the conviction, even Singh’s petition, we need not resolve the though the statute at issue was phrased in matter, because Singh’s statute of the disjunctive. As discussed above, the conviction is not phrased in the disjunctive petitioner had been convicted under N.J. in a relevant way. The statute is phrased in Stat. Ann. § 2C:35-5(a)(1), which made it the disjunctive, both with respect to its unlawful “[t]o manufacture, distribute or actus reus (which can be either (1) sexual dispense, or to possess or have under his contact or (2) causing sexual contact) and control with intent to manufacture, its mens rea d i s t r i b u t e o r d i s p en s e , [ c er t a in (which can be either (a) knowing that the substances].” Despite this disjunctive contact is offensive to the victim, or (b) phrasing, we declined to examine whether knowing that the contact occurs without Wilson had engaged in distribution or the victim’s consent). But none of this possession with the intent to distribute. gives insight into the question whether 11 Subject to our discussion in the margin,13 Del. C. § 767 constitutes “sexual abuse of this may be in tension with our earlier a minor” because, though any combination decision in Valansi. But there may also be of actus reus and mens rea seem to suffice other cases in which a statute phrased in as the actus reus and mens rea of “sexual the disjunctive would not invite further abuse,” the statute is silent on the critical inquiry; we cannot with great confidence matter of the age of the victim. draw any general rule on this point from our cases. 2. Does the formal categorical approach apply here? At all events, for purposes of deciding At long last, we come to the operative question in this case: Does Taylor’s formal 13 It seems that, in Wilson, we declined categorical approach apply to 8 U.S.C. to take the disjunctive phrasing as an § 1101(a)(43)(A) and 11 Del. C. § 767? invitation to make further inquiry We have already indicated that Singh’s because the disjunctive words of N.J. statute of conviction does not invite us to Stat. Ann. § 2C:35-5(a)(1) did not go beyond the formal categorical differentiate between offenses for approach, because it is not phrased in the purposes of judgment and penalty (unlike disjunctive in a relevant way. Thus we the numbered paragraphs of subsection m u s t a s k w he th er 8 U .S.C . (b) of that statute, which carried separate § 1101(a)(43)(A) (and specifically “sexual penalties). As noted above, however, it abuse of a minor”) invites inquiry—that is, is possible that a disjunctive definition of whether it is more like the amount-of-loss a single offense, for state law purposes of provision of 8 U.S.C. § 1101(a)(43)(M)(i), judgment and penalty, might nonetheless or more like provisions for “burglary,” 8 invite further inquiry for the purposes of U.S.C. § 1101(a)(43)(G), or “crime of § 1101(a)(43)’s definition of an violence,” 8 U.S.C. § 1101(a)(43)(F). aggravated felony.

24 We think it clear that “sexual abuse of IV. Conclusion a minor” belongs in the latter category. In view of our conclusion in Part III.B First, it is listed in the same subsection as that Taylor’s formal categorical approach “murder” and “rape,” two terms that share applies to “sexual abuse of a minor” under the common law pedigree of “burglary,” 8 U.S.C. § 1101(a)(43)(A) and 11 Del. C. which was examined in Taylor itself. § 767, our analysis in Part III.A stands: Applying the maxim noscitur a sociis,14 we Because§ 767 does not establish the age of would place “sexual abuse of a minor” in the victim, a conviction under that statute a similar mold. Second, nothing in the is not the aggravated felony of sexual phrase “sexual abuse of a minor” signals abuse of a minor. Because Singh has not that a factual investigation is called for. been convicted of an aggravated felony, Congress could have enacted, for example, we have jurisdiction and will grant the the language “any sex offense, where the petition for review. victim of such offense was a minor”; such language, parallel to provisions like 8 U.S.C. § 1101(a)(43)(G) & (S), might direct our inquiry into the facts of the crime rather than its definition. Third, in an area that so routinely implicates state laws, Congress is presumed to legislate against the backdrop of existing state statutes. The widespread existence of state statutes specifically criminalizing sexual abuse of a minor, see, e.g., Ala. Code § 13A-6-67 (“Sexual abuse in the second degree”); Cal. Penal Code § 288.5 (“Continuous sexual abuse of a child”); 11 Del. C. § 778 (“Continuous sexual abuse of a child”); 18 Pa. Cons. Stat. § 6312 (“Sexual abuse of children”), supports the conclusion that Congress intended Taylor’s formal categorical approach to be applied in this case.

14 “The meaning of a word is or may be known from the accompanying words.” Black’s Law Dictionary 1060 (6th ed. 1990).