PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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No. 19-1740
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LUIS FERNANDO GRIJALVA MARTINEZ, a/k/a Luis Grijalva, a/k/a Luis Martinez,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent
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On Petition for Review of an Order of the Board of Immigration Appeals (No. A204-865-313)
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Argued September 30, 2020
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Before: SHWARTZ, PHIPPS, and FISHER, Circuit Judges.
(Filed: October 21, 2020)
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OPINION
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Susan G. Roy [ARGUED] Law Office of Susan G. Roy Suite 101 163 Cranbury Road Princeton Junction, NJ 08550 Counsel for Petitioner
Dana M. Camilleri [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Washington, DC 20044 Counsel for Respondent
SHWARTZ, Circuit Judge.
Luis Fernando Grijalva Martinez petitions for review of an order of the Board of Immigration Appeals (“BIA”) (1) holding that Grijalva Martinez was removable as an alien convicted of both an aggravated felony and a crime involving moral turpitude (“CIMT”), and (2) finding him ineligible for withholding of removal and protection under the Convention Against Torture (“CAT”). Because Grijalva Martinez’s state conviction for criminal sexual contact constitutes both a CIMT and an aggravated felony, and because he is not entitled to withholding of removal or CAT relief, we will deny the petition for review.
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I
Grijalva Martinez is a citizen of Guatemala. In November 2013, his status was adjusted from asylee to lawful permanent resident. In May 2016, he was convicted in the New Jersey Superior Court of criminal sexual contact, in violation of N.J. Stat. Ann. § 2C:14-3(b), and of endangering the welfare of children, in violation of N.J. Stat. Ann. § 2C:24-4(a)(1). The Government subsequently commenced removal proceedings against Grijalva Martinez, alleging that he was removable as an alien convicted of a CIMT, an aggravated felony, and a crime of child abuse, child neglect, or child abandonment. In proceedings before an Immigration Judge (“IJ”), Grijalva Martinez denied that the conviction rendered him removable, and applied for withholding of removal and CAT protection. With respect to his applications for relief, Grijalva Martinez asserted that he feared violence at the hands of gang members, including his former stepfather.
The IJ sustained the removability charges, finding that Grijalva Martinez’s conviction for criminal sexual contact was both a CIMT under 8 U.S.C. § 1227(a)(2)(A)(i) and an aggravated felony, namely, sexual abuse of a minor, under § 1227(a)(2)(A)(iii). The IJ also found that Grijalva Martinez was ineligible for withholding of removal because he was convicted for criminal sexual contact, a particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii) and that Grijalva Martinez was ineligible for CAT relief because he had not established that he would be subject to torture if removed to Guatemala.
Grijalva Martinez appealed to the BIA, which dismissed the appeal. The BIA held that Grijalva Martinez was
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removable because he had been convicted of both a CIMT and an aggravated felony. 1 The BIA also adopted the IJ’s findings and conclusions denying Grijalva Martinez’s requests for withholding of removal and CAT relief.
Grijalva Martinez petitions for review, arguing that the IJ and BIA (1) erred in concluding that criminal sexual contact is an aggravated felony, (2) erred in concluding that his conviction is for a particularly serious crime, and (3) failed to apply the proper legal framework to his CAT claim.
II 2
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Grijalva Martinez does not challenge the BIA’s ruling that his conviction for criminal sexual contact constitutes a CIMT, a finding that provides a ground for removal. 3 He does, howev
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er, dispute that the conviction constitutes an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
The Immigration and Nationality Act (“INA”) defines the term “aggravated felony” to include “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A); see also Restrepo v. Att’y Gen., 617 F.3d 787, 791 (3d Cir. 2010). To determine whether Grijalva Martinez’s conviction for criminal sexual contact under N.J. Stat. Ann. § 2C:14-3(b) constitutes sexual abuse of a minor, “we employ the ‘categorical approach’ of Taylor v. United States, 495 U.S. 575 (1990).” Restrepo, 617 F.3d at 791 (citing Nijhawan v. Holder, 557 U.S. 29, 34, 37 (2009)); see also Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1567- 68 (2017). Here, “[t]he categorical approach requires a two step analysis: first, we must ascertain the definition for sexual abuse of a minor, and second, we must compare this ‘federal’ definition to the state statutory offense in question.” Restrepo, 617 F.3d at 791 (citing Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir. 2004)). The statutory offense is defined by its elements. “If [the type of] conduct that meets the federal definition of sexual abuse of a minor” would meet the elements for a conviction for criminal sexual contact under New Jersey law, then Grijalva Martinez’s conviction “qualifies as a conviction for sexual abuse of a minor and, by extension, an
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aggravated felony for which [Grijalva Martinez] is removable.” Id.
A
Two of our precedents inform the first step of this analysis. First, in Restrepo, we deferred to the BIA’s definition of the term “sexual abuse of a minor” in the INA, holding that the term is “most appropriately defined by” 18 U.S.C. § 3509(a)(8), which defines “sexual abuse” as including “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.” Restrepo, 617 F.3d at 796 (quoting 18 U.S.C. § 3509(a)(8)). We noted that the BIA viewed § 3509(a)(8) not “as a restrictive or limiting definition,” but rather “as a guide in identifying the types of crimes we would consider to be sexual abuse of a minor.” Id. at 796 n.10 (quoting Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (B.I.A. 1999)).
Second, in Cabeda v. Attorney General, 971 F.3d 165 (3d Cir. 2020), we reaffirmed that § 3509(a)(8) is the touchstone of the federal generic definition of “sexual abuse of a minor” under the INA, but we also noted that § 3509(a)(8) “does not specify a mens rea requirement.” Id. at 173. Because we could not “defer to a nullity,” we “look[ed] elsewhere to discern the mens rea required to establish the generic federal crime.” Id. Specifically, we looked to “the structure of the INA, the inherent egregious nature of an aggravated felony, and,” perhaps most importantly, a “closely-related statute[],”
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18 U.S.C. § 2243. Id. (quoting Acevedo v. Barr, 943 F.3d 619, 624 (2d Cir. 2019)).
Section 2243, a federal criminal statute entitled “sexual abuse of a minor or ward,” requires “knowing conduct as to the sexual act in question” but “establishes that no knowledge at all is required with respect to the victim’s age.” Id. (citing 18 U.S.C. § 2243); see also Acevedo, 943 F.3d at 624 (“[C]ourts have uniformly interpreted [Section 2243 and another similar federal statute] as disclaiming mens rea requirements with respect to the victim’s age.” (second alteration in original) (emphasis omitted) (quoting United States v. Robinson, 702 F.3d 22, 33 (2d Cir. 2012))). In Cabeda, we imported § 2243’s scienter standard for the actus reus, the sexual act, into the federal generic offense of sexual abuse of a minor, holding that the federal generic offense requires knowing conduct as to the sexual act, 971 F.3d at 173-74. We had no need, however, to address whether § 2243’s proviso that the Government need not prove that the perpetrator knew the victim’s age applies to the federal generic offense. Id.
Today, we conclude that the federal generic offense includes both components of § 2243. Section 2243 criminalizes sexual contact with minors. Thus, it complements § 3509’s protection of minors who were victims of a sexual contact. Like similar state statutes concerning sexual contact with minors, see, e.g., infra n.9, § 2243 does not require proof that the defendant knew the victim’s age. See 18 U.S.C. § 2243(d)(1). Moreover, to impose a requirement that the perpetrator know the victim’s age would exclude from the federal generic offense a swath of sexual conduct unlawful under many state laws. See Esquivel-Quintana, 137 S. Ct. at 1571 (holding that courts may “look to state criminal codes for
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additional evidence about the generic meaning of sexual abuse of a minor”); Acevedo, 943 F.3d at 626 (same); Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U. L. Rev. 313, 343-44 (2003) (surveying jurisdictions and noting that a majority of states, “substitute[] strict liability for a requirement of mens rea” in their statutory rape laws). Thus, we join our sister circuits and hold that the federal generic offense of sexual abuse of a minor under the INA contains no scienter requirement as to the victim’s age.4 See, e.g., Bedolla-Zarate v. Sessions, 892 F.3d 1137, 1141 (10th Cir. 2018); Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014).
As a result, the federal generic offense of sexual abuse of a minor requires proof that the defendant (1) knowingly engaged in an act that constitutes criminal sexual contact; and (2) engaged in such an act with a person who is of the age the statute covers, without the need for the government to prove that the defendant knew or reasonably should have known the person’s age.
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B
Having identified the elements of the federal generic definition for sexual abuse of a minor, we next examine the elements of criminal sexual contact under N.J. Stat. Ann. § 2C:14-3(b) to determine whether the offenses categorically match. Section 2C:14-3(b) provides that a defendant is guilty “if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c. (1) through (5).” Section 2C:14-2(c)(1)-(5), in turn, sets forth a series of “alternatively phrased” factual scenarios. 5 We must accor
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dingly decide whether these alternatively listed items are “elements” of the offense or “means” to commit it. Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). Our review of the statute reveals that each subsection requires proof of a fact not required by another subsection. As a result, each subsection contains a separate element that must be proven to secure a conviction. New Jersey’s model jury instructions confirm this conclusion. The instructions list the four subsections in Grijalva Martinez’s statute of conviction in the alternative, thus reflecting that each is an element. NJ J.I. CRIM 2C:14-3b. Furthermore, jurors must be unanimous as to whether the government has proven each element of the offense. NJ J.I. CRIM Non 2C Charges. The need for jury unanimity also shows that the subsections embody elements of, not a means to commit, the offense. See Hillocks v. Att’y Gen., 934 F.3d 332, 339 (3d Cir. 2019) (concluding that elements are those “that
(4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim; (5) The victim is a pupil at least 18 but less than 22 years old and has not received a high school diploma and the actor is a teaching staff member or substitute teacher, school bus driver, other school employee, contracted service provider, or volunteer and the actor has supervisory or disciplinary power of any nature or in any capacity over the victim. As used in this paragraph, “teaching staff member” has the meaning set forth in N.J.S.18A:1-1.
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need to be found unanimously beyond a reasonable doubt” by a trial jury).
When a crime has multiple alternate elements, we apply a “modified categorical approach,” under which we may examine “a limited set of documents to see which of the alternatives served as the basis for the individual’s conviction.” Id. at 338 (citing Descamps v. United States, 570 U.S. 254, 269-70 (2013); Mathis, 136 S. Ct. at 2249). Among the documents we may consider in making this assessment is the charging instrument, although in looking at this instrument, we remain focused on the elements, not the facts, of the crime. See United States v. Brown, 765 F.3d 185, 189-90 (3d Cir. 2014) (quoting Descamps, 570 U.S. at 263), as amended (Nov. 4, 2014). Grijalva Martinez’s indictment alleged that he committed criminal sexual contact against a victim who was at least 13 but less than 16 years old while he was at least four years older than her, allegations that align with the offense set forth at N.J. Stat. Ann. § 2C:14-2(c)(4). 6
We will therefore compare the elements of the offense set forth at N.J. Stat. Ann. §§ 2C:14-3(b) and 2C:14-2(c)(4) with those of the federal generic offense. N.J. Stat. Ann. §§ 2C:14-3(b) and 2C:14-2(c)(4) criminalize engaging in “sexual contact” with a victim, § 2C:14-3(b), when “[t]he victim is at least 13 but less than 16 years old and the [defendant] is at least four years older than the victim,” § 2C:14-2(c)(4). This offense has two components: a knowing act and the ages of the victim and defendant. The act is “sexual
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contact.” Sexual contact is defined under New Jersey law as “an intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor,” which is performed “in view of the victim whom the actor knows to be present.” N.J. Stat. Ann. § 2C:14-1(d). Section 3509(a) “defines ‘sexually explicit conduct’ to include ‘sexual contact[,]’ which refers to ‘the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any person.’” Restrepo, 617 F.3d at 800 (alteration in original). As we observed in Restrepo, the “breadth of conduct encompassed by these provisions” makes “plain that” 7 the conduct described in New Jersey’s definition of the term “sexual contact” also captures the conduct the federal generic offense prohibits. 8 Id.
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Turning to the age component, both the federal generic offense and the New Jersey statute make it a crime to engage in the prohibited acts with individuals who are at least 13 but less than 16. See Esquivel-Quintana, 137 S. Ct. at 1568 (“[T]he generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.”); N.J. Stat. Ann. § 2C:14-2(c)(4) (covering criminal sexual contact with a victim who is least 13 but less than 16, and four years younger than the defendant). Neither the federal generic offense nor the New Jersey law requires the government to prove that the defendant knew the age of the victim. Rather, a defendant can be convicted of criminal sexual contact even if he did not know, and even if he could not reasonably have known, that the victim was underage. See 18 U.S.C. § 2243(d) (providing that in a prosecution for sexual abuse of a minor, “the Government need not prove that the defendant knew . . . the age of the other person engaging in the sexual act”); N.J. Stat. Ann. § 2C:14-5(c) (“It shall be no defense to a prosecution for a crime under this chapter that the actor believed the victim to be above the age stated for the offense, even if such a mistaken
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belief was reasonable.”). 9 Thus, because a knowing criminal sexual act involving a victim of a particular age, whose age may not be known to the perpetrator, is an element of both the federal generic offense and the New Jersey criminal sexual contact offense, the two are a categorical match. Because a crime that fits under the federal generic offense of sexual abuse of a minor is an aggravated felony, and because Grijalva Martinez’s crime of conviction matches the definition of the federal generic offense, the BIA correctly concluded that Grijalva Martinez’s conviction constitutes an aggravated felony that renders him removable.
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III 10
Grijalva Martinez contends that he is entitled to withholding of removal because he was not convicted of a particularly serious crime. Under the INA, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). However, “withholding of removal is unavailable if [an] alien committed a ‘particularly serious crime’ because, in such a case, the alien is considered a ‘danger to the community of the United States.’” Flores v. Att’y Gen., 856 F.3d 280, 285 (3d Cir. 2017) (quoting 8 U.S.C. § 1231(b)(3)(B)(ii)).
Grijalva Martinez asserts that he is not subject to the particularly serious crime bar because only aggravated felonies can be particularly serious crimes and he was not convicted of an aggravated felony. Grijalva Martinez is wrong for three reasons. First, as just explained, Grijalva Martinez was indeed
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convicted of an aggravated felony, and he is therefore statutorily precluded from applying for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B). Second, even if Grijalva Martinez had not been convicted of an aggravated felony, offenses that are not aggravated felonies can be particularly serious crimes. See Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 266-67 (3d Cir. 2019) (en banc) (holding that “both aggravated felonies and other offenses can be particularly serious crimes,” given that “aggravated felonies [are only one] subset of particularly serious crimes”). Third, even if Grijalva Martinez’s offense does not qualify as an aggravated felony, the IJ did not err in concluding that Grijalva Martinez was convicted of a particularly serious crime.
An IJ has “broad discretion” to determine whether a prior conviction is a particularly serious crime, Nkomo v. Att’y Gen., 930 F.3d 129, 134 (3d Cir. 2019), through a “case-bycase adjudication,” Denis v. Att’y Gen., 633 F.3d 201, 214 (3d Cir. 2011) (citation and internal quotation marks omitted); see also Bastardo-Vale, 934 F.3d at 262. In making this determination, the IJ may consider “such factors as [1] the nature of the conviction, [2] the circumstances and underlying facts of the conviction, [3] the type of sentence imposed, and, most importantly, [4] whether the type and circumstances of the crime indicate that the alien will be a danger to the community.” Luziga v. Att’y Gen., 937 F.3d 244, 252 (3d Cir. 2019) (alterations in original) (quoting Matter of Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 1982)).
Grijalva Martinez was convicted of criminal sexual contact for groping the “buttocks and vaginal area” of a teenage girl at the beach, after exposing himself to her and two other girls of similar ages. AR 299-300. The IJ “properly considered
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the nature of [these] acts,” Denis, 633 F.3d at 217, finding that Grijalva Martinez had committed “numerous offenses that included public lewdness for having exposed himself and sexually inappropriate physical contact with the victims,” AR 95. Despite Grijalva Martinez’s protestations of his innocence, we agree with the IJ that there was “overwhelming evidence,” AR 95, that Grijalva Martinez repeatedly and deliberately engaged in these acts. The seriousness of Grijalva Martinez’s conduct is also reflected in his sentence. The sentencing court itself noted the harm that Grijalva Martinez inflicted on the victim and his risk of recidivism. As a result, Grijalva Martinez was sentenced to several months’ imprisonment, ordered to serve a lifetime term of parole, and directed to register as a sex offender. Given these facts, the IJ’s finding was “a permissible reading and application of the phrase [‘particularly serious crime’],” and “we will not disturb [the IJ’s] determination” that Grijalva Martinez was convicted of a particularly serious crime. Denis, 633 F.3d at 216.
IV 11
The IJ and BIA also did not err in denying Grijalva Martinez CAT relief. Although Grijalva Martinez encountered
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several episodes of random violence in Guatemala, such as an armed robbery and an attempted vehicular manslaughter, he presented no evidence showing a “connection or common motive” behind the crimes that he witnessed, AR 103, and no evidence that the crimes occurred with the acquiescence of government officials apart from country condition reports. Moreover, there is substantial evidence to support the IJ’s conclusion that the country condition reports did not establish any likelihood that Grijalva Martinez himself would be tortured there. See Tarrawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir. 2003) (holding that country condition reports “alone [were] insufficient to demonstrate that it is more likely than not that a particular civilian, in this case [the petitioner], will be tortured” if returned to his home country). Thus, the BIA and IJ did not err in finding Grijalva Martinez ineligible for CAT relief.
V
For the foregoing reasons, we will deny the petition for review.