                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2005


RICHARD JESUS AMOS,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



                              No. 14-1633


RICHARD JESUS AMOS,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



On Petitions for Review of Orders of the Board of Immigration
Appeals.


Argued:   March 24, 2015                    Decided:   June 10, 2015


Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Petitions for review granted and order of removal vacated by
published opinion.    Judge Keenan wrote the opinion, in which
Judge Motz and Judge Thacker joined.


ARGUED: Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver
Spring, Maryland, for Petitioner.     Rebecca Hoffberg Phillips,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.    ON BRIEF: Joyce R. Branda, Acting Assistant
Attorney General, Civil Division, John S. Hogan, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.




                               2
BARBARA MILANO KEENAN, Circuit Judge:

        In this appeal, we review consolidated petitions filed by

Richard Jesus Amos, a citizen of the Philippines, challenging

decisions of the Board of Immigration Appeals (the BIA, or the

Board),     which    dismissed     Amos’s       appeal      from     an    immigration

judge’s     order    of    removal    and        denied      Amos’s       motion    for

reconsideration.          The BIA determined that Amos was removable

based on his conviction in 1990 for “causing abuse to a child,”

in violation of Maryland law.

        The BIA held that this offense qualified as an “aggravated

felony” under the generic federal crime of “sexual abuse of a

minor,” as listed in 8 U.S.C. § 1101(a)(43)(A).                            We are not

persuaded by the BIA’s analysis and its conclusion, because the

least     culpable    conduct     under        the   former     Maryland        statute

prohibiting sexual abuse of a child does not necessarily qualify

as the generic federal offense of “sexual abuse of a minor,” as

interpreted by the BIA.          We therefore grant Amos’s petitions for

review and vacate the order for his removal.



                                          I.

     Amos    entered      the    United       States   in     1980    as    a    lawful

permanent resident, when he was about nine years old.                        In 1990,

he was convicted in a Maryland state court of the crime of

“causing abuse to [a] child” (the child abuse conviction), in

                                          3
violation   of   former   Maryland    Code,    Article    27    § 35A    (1988).

That statute stated in relevant part:

     (a) Definitions –

     (1) In this section        the       following    words    have    the
     meanings indicated.

     (2) “Abuse” means:

     (i) The sustaining of physical injury by a child as a
     result of cruel or inhumane treatment or as a    result
     of a malicious act by any parent or other person who
     has permanent or temporary care or custody or
     responsibility for supervision of a child under
     circumstances that indicate that the child’s health or
     welfare is harmed or threatened thereby; or

     (ii) Sexual abuse of a child,                    whether   physical
     injuries are sustained or not.

     (3) “Child” means any individual under [18 years].

     (4)(i) “Sexual abuse” means any act that involves
     sexual molestation or exploitation of a child by a
     parent or other person who has permanent or temporary
     care or custody or responsibility for supervision of a
     child.    (ii) “Sexual abuse” includes, but is not
     limited to: 1. Incest, rape, or sexual offense in any
     degree; 2. Sodomy; and 3. Unnatural or perverted
     sexual practices.

     (b) Violation constitutes felony; penalty. – A parent
     or other person who has permanent or temporary care or
     custody or responsibility for the supervision of a
     child who causes abuse to the child is guilty of a
     felony and on conviction is subject to imprisonment in
     the penitentiary not exceeding 15 years.

(the Maryland statute, or the former Maryland statute).                       Md.

Code, Art. 27 § 35A (1988) (emphasis added).              The Maryland court

sentenced Amos to a term of 18 months’ imprisonment, with the




                                      4
entire    sentence      suspended,      and       to       three    years    of   supervised

probation.

     In April 2008, the Department of Homeland Security (DHS)

issued a “notice to appear” and initiated removal proceedings

against       Amos   based   on   8    U.S.C.          §    1227(a)(2)(A)(iii),        which

authorizes the Attorney General to remove “[a]ny alien who is

convicted of an aggravated felony at any time after admission.”

DHS contended that Amos’s child abuse conviction qualified as an

aggravated felony, namely, the “sexual abuse of a minor,” under

8 U.S.C. § 1101(a)(43)(A) (Subsection A), which lists “murder,

rape,    or    sexual   abuse     of    a    minor”         as     qualifying     aggravated

felonies. 1

     Although        Amos    admitted       the    fact       of     his    conviction,   he

disputed that it qualified as an aggravated felony of “sexual

abuse of a minor.”           The immigration judge (IJ) rejected Amos’s

argument, and held that Amos was removable under Subsection A.

        On appeal from the IJ’s order of removal, the BIA reviewed

the language in the former Maryland statute and concluded that

while the part of the statute addressing sexual abuse of a child


     1
       DHS also contended that Amos’s conviction qualified as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F) (Subsection
F), because his conviction constituted a crime of violence.
Although the IJ concluded that Amos’s conviction rendered him
removable under Subsection F, the BIA later overruled this
decision and concluded that a violation of the Maryland statute
was not a crime of violence under Subsection F.


                                             5
“conformed” to the meaning of “sexual abuse of a minor” under

Subsection A, the remainder of the statute prohibiting physical

injury to a child did not.               The BIA therefore approved the IJ’s

application of a modified categorical analysis, which permitted

review of Amos’s underlying record of conviction to determine

which portion of the Maryland statute formed the basis of Amos’s

conviction. 2        Because the record of conviction “revealed that

[Amos] put the 5 year old victim’s penis in his mouth,” the BIA

concluded         that      Amos   had     been    convicted      under     former

Section 35A(a)(2)(ii) and that this offense qualified as “sexual

abuse of a minor” within the meaning of Subsection A.

       In reaching this conclusion, the BIA did not define the

meaning      of    “sexual    abuse   of   a   minor,”   but   instead    cited   an

earlier BIA decision, Matter of Rodriguez-Rodriguez, 22 I. & N.

Dec.       991    (B.I.A.    1999),   stating     that   this    prior    decision

“defin[ed] ‘sexual abuse’ as employed in 18 U.S.C. § 3509 to


       2
        The modified categorical approach applies in limited
circumstances involving “divisible” statutes that prohibit
“multiple, alternative versions of the crime.”      Descamps v.
United States, 133 S. Ct. 2276, 2284-85 (2013). A statute will
be deemed “divisible for purposes of applying the modified
categorical approach only if at least one of the categories into
which the statute may be divided constitutes, by its elements,”
the generic federal offense.   United States v. Cabrera-Umanzor,
728 F.3d 347, 352 (4th Cir 2013) (emphasis omitted).        When
applicable, the modified categorical approach permits review of
certain materials in the underlying criminal record to determine
which alternative crime formed the basis for the conviction.
Id. at 350.


                                           6
cover a broad range of acts of a sexual nature.”                                 Under 18

U.S.C.      § 3509(a)(8),         “sexual           abuse”     is   defined      as     “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.”        See Rodriguez-Rodriguez, 22 I. & N. Dec. at 996.

The BIA determined that this “broad range of acts” necessarily

encompassed       the    crime    of     sexual      abuse     of   a   child   under    the

former      Maryland      statute        and,       accordingly,        dismissed     Amos’s

appeal from the IJ’s removal order.

      In     a        later      decision           denying     Amos’s       motion      for

reconsideration, the BIA expanded its analysis and stated that

under Maryland law, a conviction for “sexual abuse” under former

Section 35A(a)(2)(ii) required proof of three elements: (1) that

the defendant sexually molested or exploited the victim by means

of a specific act; (2) that the victim was under the age of 18;

and (3) that the defendant was a parent or someone responsible

for   the    care,      custody,       or   supervision        of   the    victim.       See

Schmitt v. State, 63 A.3d 638, 643 (Md. Ct. Spec. App. 2013).

      The BIA observed that to satisfy the first element under

Maryland law, an affirmative act of molesting or exploiting a

child is not required, because the statute also encompasses an

“omission        or     failure     to      act      to      prevent     molestation      or

                                                7
exploitation when it is reasonably possible to act.”                         See Degren

v. State, 722 A.2d 887, 899 (Md. 1999) (discussing different

Maryland statute using same language as relevant portion of the

former Maryland statute).             Nevertheless, the BIA concluded that,

under Degren, the least culpable conduct qualifying as “causing

sexual abuse of a child” satisfied the generic federal offense

of   “sexual   abuse       of    a   minor.”           The   only   reasoning     the   BIA

provided   for    this          conclusion        is    that    the   generic     federal

offense, as construed in Rodriguez-Rodriguez, does not require

physical contact with the victim and “includes a broad range of

maltreatment     of    a    sexual     nature”          as   detailed   in   18    U.S.C.

§ 3509(a)(8).         Accordingly, the BIA denied Amos’s motion for

reconsideration.

      Amos filed two petitions for review with this Court, from

the initial BIA decision and from the BIA’s denial of his motion

for reconsideration.             We consolidated Amos’s two petitions, in

accordance with 8 U.S.C. § 1252(b)(6).                         See Crespin-Valladares

v. Holder, 632 F.3d 117, 122 (4th Cir. 2011) (citing Stone v.

INS, 514 U.S. 386, 394 (1995)).



                                          II.

                                             A.

      The central issue presented in this appeal is whether the

BIA erred in concluding that Amos’s conviction under the former

                                             8
Maryland statute qualifies as the aggravated felony of “sexual

abuse of a minor,” within the meaning of Subsection A.                            We

consider this question of law de novo. 3             Castillo v. Holder, 776

F.3d 262, 267 (4th Cir. 2015).

                                        B.

      Amos argues that the BIA erred in holding that his Maryland

child     abuse     conviction      qualifies      him    for    removal        under

Subsection A for the aggravated felony of “sexual abuse of a

minor.”     According to Amos, the BIA misapplied the decision in

Rodriguez-Rodriguez,         and   incorrectly     concluded    that    the least

culpable conduct under the former Maryland statute fell within

the generic federal offense listed in Subsection A.                    Thus, Amos

contends    that     his     Maryland   conviction       does   not    render    him

removable under Subsection A, because the conduct proscribed by

the   former      Maryland    statute   is   not    encompassed        within    the

generic federal offense of “sexual abuse of a minor.”

      In response, the government argues that the BIA correctly

determined that the elements of sexual abuse under the former

Maryland statute fell within the broad meaning of “sexual abuse

      3
       We observe that judicial review generally is precluded in
cases involving aliens who are removable as aggravated felons.
8 U.S.C. § 1252(a)(2)(C); Kporlor v. Holder, 597 F.3d 222, 225-
26 (4th Cir. 2010).    However, we retain jurisdiction to review
constitutional claims or questions of law, including the
question whether a particular underlying crime qualifies as an
aggravated felony.      8 U.S.C. § 1252(a)(2)(D); Soliman v.
Gonzales, 419 F.3d 276, 280 (4th Cir. 2005).


                                         9
of a minor” in Subsection A.                          Unlike the BIA, the government

does     not       maintain       that     the       Board    articulated         a    particular

definition of “sexual abuse” in Rodriguez-Rodriguez.                                         Rather,

the government asserts that we owe significant deference to the

BIA’s    reliance        on    an     “interpretive           touchstone,”            namely,      the

definition of “sexual abuse” provided in 18 U.S.C. § 3509(a)(8).

Additionally, the government contends that the BIA’s application

of   that      “guide”       in     the    present       case      permitted          the    BIA     to

conclude that Amos’s conviction, which was based on charges of

sexual       abuse    rather       than     of       physical     abuse,    qualified           as   a

removable          offense    under       Subsection         A.    We     disagree          with   the

government’s arguments.

                                                 C.

                                                 i.

        Under the Immigration and Nationality Act (INA), a non-

citizen is removable if he is “convicted of an aggravated felony

at any time after admission.”                         8 U.S.C. § 1227(a)(2)(A)(iii).

The INA defines “aggravated felony” in 8 U.S.C. § 1101(a)(43)

(the aggravated felony statute) by enumerating an extensive list

of   crimes,        including       in    Subsection         A    the    crimes       of    “murder,

rape, or sexual abuse of a minor.”

        In    determining         whether        a    conviction        under     a    particular

state        law    qualifies        as     an       aggravated         felony    for        removal

purposes, we generally apply the categorical approach set forth

                                                 10
in Taylor v. United States, 495 U.S. 575 (1990).                              Castillo, 776

F.3d at 267-68; see also Estrada-Espinoza v. Mukasey, 546 F.3d

1147,     1152      (9th     Cir.     2008)       (en    banc) 4    (applying     categorical

approach to determine whether state crime qualified as sexual

abuse     of    a    minor      under    Subsection         A).      Under    a   categorical

approach, we do not look “‘to the facts of the particular prior

case,’ but instead to whether ‘the state statute defining the

crime     of    conviction’         categorically          fits     within    the   ‘generic’

federal        definition        of     a     corresponding          aggravated     felony.”

Moncrieffe          v.   Holder,      133    S.    Ct.    1678,     1684   (2013)   (quoting

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)).                              “A state

offense is a categorical match with a federal offense only if a

conviction          of    the    state      offense       necessarily        involved   facts

equating to the generic federal offense.”                           Castillo, 776 F.3d at

267   (quoting           Moncrieffe,        133    S.    Ct.   at    1684)    (citation   and

brackets omitted).

      When applying a categorical approach, we typically begin by

considering the required elements of the generic federal crime.

See Taylor, 495 U.S. at 590, 592 (explaining that a federal

statute describing a generic crime “must” employ a “uniform,


      4
       Overruled in part on other grounds by United States v.
Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc)
(per curiam), abrogated by Descamps v. United States, 133 S. Ct.
2276 (2013).



                                                  11
categorical definition[] to capture all offenses of a certain

[type]    .    .    .     regardless     of   technical     definitions      and     labels

under    state      law).         This    approach    allows   federal      laws     to    be

applied       uniformly       to     determine      the    effect     of    prior       state

convictions.            See id. at 590-91; Estrada-Espinoza, 546 F.3d at

1157-58.

     The generic federal crime at issue in the present case,

“sexual abuse of a minor” under Subsection A, is not defined in

the INA.       We therefore turn to consider the BIA’s interpretation

of the meaning of this generic federal offense.

                                              ii.

     We       generally       give       substantial      deference    to    the        BIA’s

precedential decisions interpreting the INA, because “Congress

conferred      on       the   BIA     decisionmaking        power     to    decide      such

questions of law.”             Martinez v. Holder, 740 F.3d 902, 909 (4th

Cir. 2014) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999), and Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc.,    467       U.S.    837,    842-43     (1984)).       Under    the    holding       in

Chevron, we are required to accept the BIA’s construction of an

otherwise silent or ambiguous statute, unless such construction

is   “arbitrary,           capricious,        or    manifestly      contrary       to     the

statute.”          467 U.S. at 843-44.              Also, we “may not substitute”

our “own construction of a statutory provision for a reasonable

interpretation” by the BIA.                Id. at 844.

                                              12
      In prior cases, we have applied the principles of Chevron

to   the   BIA’s     precedential        interpretation        of     generic       federal

crimes listed in the aggravated felony statute. 5                       See Castillo,

776 F.3d at 266-67 (considering BIA’s interpretation of “theft

offense” in the aggravated felony statute, and assuming that

BIA’s     definition    was    reasonable        under    Chevron);      Soliman,       419

F.3d at 281-83 (engaging in Chevron analysis but declining to

apply     deference    because     BIA’s     definition        of     “theft    offense”

conflicted with Congress’s intent to exclude crimes involving

obtaining     property    by      fraud).         However,      the    principles       of

Chevron deference are not applicable to the Board’s decision in

Amos’s case because, although issued by a three-judge panel of

the BIA, it was an unpublished decision that does not carry

precedential weight.

      A    potential     complication            nevertheless       arises      in     our

analysis     here,     because     the     BIA     relied      in   Amos’s      case     on

Rodriguez-Rodriguez,          a   precedential           BIA   decision        to     which

Chevron deference can apply.              See Hernandez v. Holder, 783 F.3d

189, 192 (4th Cir. 2015) (explaining that nonprecedential BIA

      5
       Although we generally defer to the BIA’s interpretation of
the generic federal crimes listed in the INA, we do not defer to
the BIA’s application of those definitions to particular state
statutes.   Whether the elements of a particular state offense
are a categorical match with the elements of a generic federal
offense requires an analysis of state criminal law, which does
not lie within the BIA’s authority or expertise.       Soliman v.
Gonzales, 419 F.3d 276, 281 (4th Cir. 2005).


                                           13
decision relied on precedential decision that was entitled to

deference).         Thus,      we    first    must     consider       the    decision       in

Rodriguez-Rodriguez to determine whether and to what extent it

impacts our review of Amos’s case.

       The    question     before      the    BIA     in    Rodriguez-Rodriguez             was

whether a Texas statutory offense of “indecency with a child by

exposure” constituted “sexual abuse of a minor” under Subsection

A, even though the Texas crime did not require as an element

that    the    perpetrator          have   physical        contact    with        the    child

victim.       22 I. & N. Dec. at 991-92.                   Addressing the undefined,

generic federal crime of “sexual abuse of a minor” found in

Subsection A, the BIA observed that unlike other subsections of

the    aggravated       felony       statute,       Congress     did        not    cite     in

Subsection      A   any     federal        criminal    statute       defining           “sexual

abuse.”       Id. at 994-95.          Thus, the BIA concluded that Congress

did not intend that the generic federal crime of “sexual abuse

of a minor” be limited to the federal statutes that criminalize

“sexual abuse” and “sexual abuse of a minor.”                           Id. at 995-96

(citing 18 U.S.C. §§ 2242, 2243).                   Those statutes limit “sexual

abuse” to acts involving physical contact with specific body

parts of the victim.                Id.; see 18 U.S.C. § 2246(2).                   The BIA

explained that because “states categorize and define sex crimes

against children in many different ways,” the definitions of the

federal      offenses     in   Sections      2242,     2243,    and    2246       were    “too

                                             14
restrictive to encompass the numerous state crimes that can be

viewed as sexual abuse and the diverse types of conduct that

would fit within the term as it commonly is used.”                           22 I. & N.

Dec. at 996.

     The    BIA     also    discussed      in   Rodriguez-Rodriguez           a    statute

providing     procedural             protections        for     child      victims    and

witnesses, 18 U.S.C. § 3509(a)(8).                  The BIA observed that this

statute defines “sexual abuse” more broadly as “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.”    Id. at 995 (quoting 18 U.S.C. § 3509(a)(8)).

     Three of our sister circuits have concluded that the BIA,

in its discussion of Section 3509(a)(8) in Rodriguez-Rodriguez,

adopted that statute as its definition of “sexual abuse” for

purposes of determining whether a state offense qualifies as

“sexual abuse of a minor” under Subsection A.                           See Mugalli v.

Ashcroft,     258     F.3d      52,     58-59     (2d     Cir.     2001)     (describing

Rodriguez-Rodriguez             as     adopting     a         definition      applicable

nationwide); Restrepo v. Attorney Gen., 617 F.3d 787, 792, 795-

96   (3d    Cir.    2010)       (deferring      under         Chevron   to   the     BIA’s

“definition” in Rodriguez-Rodriguez by reference to § 3509(a));

see also Velasco-Giron v. Holder, 773 F.3d 774, 776 (7th Cir.

                                           15
2014), cert. denied sub nom. Velasco-Giron v. Lynch, 2015 U.S.

LEXIS 3016 (May 4, 2015) (explaining that the Seventh Circuit

repeatedly      has       applied     Chevron       deference          to     the     BIA’s

“reasonable approach” in Rodriguez-Rodriguez).                     Respectfully, we

disagree with this conclusion reached by our sister circuits.

       Although the BIA recognized that the broad definition in

Section 3509(a)(8) is consistent with the common understanding

of “sexual abuse,” the BIA expressly stated that it was “not

adopting [that] statute as a definitive standard or definition”

for    purposes      of   application      in    Subsection        A.         Rodriguez-

Rodriguez, 22 I. & N. Dec. at 996 (emphasis added).                                Instead,

the BIA “invoke[d] [the definition in Section 3509(a)(8)] as a

guide in identifying the types of crimes [it] would consider to

be sexual abuse of a minor.”             Id. at 996 (emphasis added).

       We   therefore      conclude      that    the     BIA    did     not       adopt    in

Rodriguez-Rodriguez         a   particular       definition        of       the     generic

federal crime of “sexual abuse of a minor” for application of

Subsection A.        We observe that the Ninth Circuit drew a similar

distinction     in    declining     to   defer      to   Rodriguez-Rodriguez,              by

focusing on the BIA’s adoption of an “advisory guideline” rather

than   a    “uniform      definition”     of    “sexual        abuse    of    a     minor.”

Estrada-Espinoza, 546 F.3d at 1157.

       Using   Section     3509(a)(8)      as   a   “guide,”      the       BIA     held   in

Rodriguez-Rodriguez that the crime of “sexual abuse of a minor”

                                          16
in Subsection A was broad enough to encompass the Texas statute

of “indecency with a child by exposure,” because the generic

federal     offense       does    not      require      as    an   element        that   the

perpetrator have physical contact with the victim.                            22 I. & N.

Dec. at 996.         Beyond this limited holding, however, the BIA did

not   provide    direction        regarding       the    elements      of     the   generic

federal   crime      of    “sexual        abuse   of    a    minor.”        See     Estrada-

Espinoza,      546    F.3d       at   1157-58     (explaining          that    Rodriguez-

Rodriguez did not offer a particularized meaning of the generic

offense necessary to perform a Taylor analysis).

      The methodology employed in Rodriguez-Rodriguez stands in

stark contrast with the BIA’s approach in Castillo, in which the

Board provided a fixed definition of the generic federal crime

of    “theft    offense”         in   8    U.S.C.       § 1101(a)(43)(G), 6         another

removable offense listed in the aggravated felony statute.                               See

Castillo, 776 F.3d at 266-67 (describing the BIA’s definition of

“theft offense” articulated in In re V-Z-S-, 22 I. & N. Dec.

1338 (B.I.A. 2000) and refined in In re Garcia-Madruga, 24 I. &

N. Dec. 436 (B.I.A. 2008)).                 Based on the BIA’s interpretation

of the generic crime of “theft offense” and the Board’s adoption

of a definition with distinct elements, reviewing courts are

      6
       The aggravated felony statute lists as a removable offense
in subsection (a)(43)(G): “a theft offense (including receipt of
stolen property) or burglary offense for which the term of
imprisonment is at least one year.”


                                             17
able to apply that definition to determine whether a particular

state offense is encompassed within the generic federal crime.

See    id.    at     270   (holding            that        Virginia      statutory     crime     of

unauthorized         use   of       a    vehicle           did     not   categorically        match

definition of “theft offense”); see also Omargharib v. Holder,

775    F.3d    192,      197    &       n.9     (4th       Cir.     2014)       (concluding     that

Virginia statutory crime of larceny did not categorically match

definition of “theft offense”); Almeida v. Holder, 588 F.3d 778,

789 (2d Cir. 2009) (holding that conviction for second-degree

larceny       in     Connecticut              fell        within     definition       of     “theft

offense”).

       Because the BIA did not supply a definition of the crime of

“sexual abuse of a minor” in Rodriguez-Rodriguez, the portion of

that opinion         subject        to    Chevron          deference       is    limited   to    the

conclusion:        (1)     that         the    generic           federal    offense    does     not

require as an element that the perpetrator have physical contact

with the victim; and (2) that the Texas statute of “indecency

with   a     child    by    exposure”           falls        within      Subsection     A.       See

Rodriguez-Rodriguez, 22 I. & N. Dec. at 996; see also Aguirre-

Aguirre, 526 U.S. at 424-25 (holding that BIA’s interpretation

of a term in the INA warrants Chevron deference when BIA “gives

ambiguous statutory terms concrete meaning through a process of

case-by-case         adjudication”)             (citation          and     internal    quotation

marks omitted).

                                                     18
                                           iii.

       We therefore turn to consider the BIA’s decision that Amos

is    subject    to   removal    based     on     his   violation      of    the    former

Maryland    statute.         Because        the     decision      is    not    afforded

precedential       weight,      we    apply       the   principles      of     deference

articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944).

See    Martinez,      740   F.3d      at   909-10.        Under     the      holding      in

Skidmore, we may defer to the agency’s opinion, based on the

agency’s “body of experience and informed judgment.”                           323 U.S.

at 140.    However, the degree of deference that we accord depends

on our consideration of the persuasiveness of the BIA’s analysis

as demonstrated by its thoroughness, validity of reasoning, and

consistency with other decisions.                 Id.

       As we have explained, in deciding whether an underlying

state conviction falls within the meaning of a generic federal

offense, we typically would compare the elements of the generic

federal offense of “sexual abuse of a minor” with the statutory

elements    of    the   former       Maryland     crime   of   sexual       abuse    of    a

child.     However, because the BIA has not defined the generic

federal offense, either in Rodriguez-Rodriguez or in the present

case, such an analysis is impossible to perform in the typical

manner.    See Estrada-Espinoza, 546 F.3d at 1158 (explaining that

“[w]ithout defined elements, a comparison of the state statute

with the federally-defined generic offense is not possible”).

                                            19
        In concluding that Amos’s Maryland conviction qualifies as

an aggravated felony under Subsection A, the BIA opined that the

“least culpable conduct” under the sexual abuse portion of the

former Maryland statute, namely, the “failure to act to prevent

sexual abuse” of a child when “one has a duty to do so,” is

encompassed within the generic federal crime of “sexual abuse of

a   minor.” 7        See   Degren,    722   A.2d    at    899.         To    support   its

conclusion, the Board cited the holding of Rodriguez-Rodriguez

that       the   generic   federal     offense     does    not       require    that    the

defendant        make   physical     contact     with    the    child       victim.     The

Board also relied on the discussion of Section 3509(a)(8) in

Rodriguez-Rodriguez,           and    its      characterization         of      the    term

“sexual abuse” as covering a “broad range” of sexual misconduct.

       We are not persuaded by the BIA’s analysis.                           Although the

BIA    in    Rodriguez-Rodriguez        held     that    the     offense      of    “sexual

abuse       of   a   minor”   under   the    INA   does        not   require       physical

       7
       Although the former Maryland crime of “child abuse” is
quite broad and included facially divisible crimes involving
both physical abuse or sexual abuse, only the sex abuse portion
of that statute potentially qualifies as a removable offense
under Subsection A.     Because we ultimately conclude that the
former Maryland crime of sexual abuse of a child does not
qualify as “sexual abuse of a minor” under Subsection A, we need
not consult Amos’s underlying conviction record to determine
which portion of the facially divisible statute formed the basis
of his conviction.    See Cabrera-Umanzor, 728 F.3d at 352 (for
application of the modified categorical approach, which requires
consultation of the underlying record, “one of the categories
into which the statute may be divided” must constitute, “by its
elements,” the generic federal offense (emphasis omitted)).


                                            20
contact with the victim, and such contact also is not required

under the relevant portion of the Maryland statute, see Walker

v. State, 69 A.3d 1066, 1085-86 (Md. 2013) (discussing current

versions of the statute), that conclusion does not resolve the

issue issue before us.               We still are faced with the question

whether the failure to act to prevent sexual abuse, the least

culpable       conduct     under     the       relevant       portion     of    the   former

Maryland statute, is encompassed within the offense of “sexual

abuse of a minor” for purposes of subsection A.

      The      BIA’s     reference    in       this    case      to   Section    3509(a)(8)

likewise offers no assistance in resolving the question before

us.      The     BIA   merely   noted      that,       in    Rodriguez-Rodriguez,        the

Board stated that Section 3509(a)(8) defined the term “sexual

abuse” as including “a broad range of maltreatment of a sexual

nature.”       That assessment, however, does not clarify the scope

of the generic federal crime, or explain why the conduct of

failing to act to prevent sexual abuse is included within that

undefined scope.

      As set forth above, Section 3509(a)(8) describes “sexual

abuse”      as     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.” (emphasis

                                               21
added).        This “guide” cited by the BIA describes affirmative

acts by a perpetrator acting as a principal in the commission of

acts of sexual abuse, as well as affirmative acts by one who is

“assisting” another in the commission of acts of sexual abuse.

Even if the generic federal offense of “sexual abuse of a minor”

encompasses          all    forms     of    “assisting”       another       in    committing

sexual abuse, the former Maryland statute applies to conduct

beyond the affirmative act of providing such assistance.                                       In

Degren, the Court of Appeals of Maryland emphasized that sexual

abuse    includes          both     “the    affirmative       acts    of    watching          and

failing     to    intervene”         in    sexual     abuse   and     the    “omission         or

failure to act when a child is being sexually abused.”                                 722 A.2d

at   899.        Thus,      contrary       to   the   BIA’s   analysis,          the    “guide”

provided by Section 3509(a)(8) does not support a conclusion

that    the    failure       to     act    to   prevent   child       abuse,      the     least

culpable conduct under the former Maryland statute, necessarily

is encompassed within the generic offense of “sexual abuse of a

minor” in Subsection A.

       Accordingly, we are not persuaded by the BIA’s analysis or

its conclusion that the term “sexual abuse of a minor” under

Subsection       A    necessarily          encompasses    the    failure         to     act    to

prevent       sexual       abuse,    the     least    culpable       conduct      under       the

former Maryland statute.                   We therefore hold that the BIA erred

as a matter of law in concluding that Amos’s conviction of child

                                                22
abuse    under   the   former   Maryland    statute   qualifies   as   an

aggravated felony under Subsection A.        See Castillo, 776 F.3d at

267.


                                  III.

       For these reasons, we grant Amos’s consolidated petitions

for review, and we vacate the order for his removal.



                                           PETITIONS FOR REVIEW GRANTED
                                           AND ORDER OF REMOVAL VACATED




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