                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2007

Ijalana v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4890




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No. 05-4890


                          ABAYOMI JAMES IJALANA,
                                          Petitioner

                                         v.

                            ATTORNEY GENERAL OF
                             THE UNITED STATES,
                                           Respondent


                  PETITION FOR REVIEW OF A DECISION OF
                   THE BOARD OF IMMIGRATION APPEALS
                           Agency No. A46-651-258
                        Immigration Judge: Annie Garcy


                    Submitted Under Third Circuit LAR 34.1(a)
                               November 27, 2007


              Before: BARRY, FUENTES and GARTH, Circuit Judges

                            (Filed: December 13, 2007 )


                                     OPINION




BARRY, Circuit Judge

     Abayomi James Ijalana petitions for review of a final order of removal entered on
October 3, 2005 by the Board of Immigration Appeals (“BIA”) based on the BIA’s

affirmance of a decision of an immigration judge (the “IJ”) that petitioner committed an

aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). For the reasons that follow, we

will deny the petition.

                                    I. Factual History

       Petitioner is a native and citizen of Nigeria who has resided in the United States as

a lawful permanent resident since his arrival here in 1998. In January 2005, he pled guilty

in the Superior Court of New Jersey to one count of criminal sexual contact in violation

of N.J.S.A. 2C:14-3 and was sentenced to three years of probation. The accusation, in

lieu of an indictment, provided as follows: “ABAYOMI IJALANA . . . did commit an act

of sexual contact with T.O. when T.O. was at least 13 but less than 16 years old and

Abayomi Ijalana was at least 4 years older than T.O.” (J.A. 35.)

       In April 2005, the government initiated a removal proceeding by serving petitioner

with a Notice to Appear (“NTA”) charging him with violating 8 U.S.C. §

1227(a)(2)(A)(iii), which provides for the removal of aliens who have committed an

“aggravated felony,” as that phrase is defined in 8 U.S.C. § 1101(a)(43). The government

contended that the “aggravated felony” that petitioner had committed was “sexual abuse

of a minor,” one of the enumerated, but undefined, aggravated felonies listed in §

1101(a)(43).

       The IJ conducted a hearing on May 25, 2005 and June 1, 2005, at which time



                                             2
petitioner admitted the conviction but argued that it did not constitute an aggravated

felony. The IJ found, however, that the accusation made clear that the victim was a minor

and that, consequently, petitioner had been convicted of an aggravated felony for

purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioner timely appealed the IJ’s decision to

the BIA, which dismissed his appeal on October 3, 2005, without opinion. He now

petitions for review.

                        II. Jurisdiction and Standard of Review

       Although 8 U.S.C. § 1252(a)(2)(C) strips us of jurisdiction to review an order of

removal based on a petitioner’s commission of a criminal offense named in, among

others, 8 U.S.C. § 1227(a)(2)(A)(iii), our jurisdiction is restored for purposes of

reviewing any “constitutional claims or questions of law” that are raised in a petition. 8

U.S.C. § 1252(a)(2)(D). We have held that the type of question presented in the petition

before us—whether a particular offense constitutes an aggravated felony—is one of law

that we have jurisdiction to review. Jarbough v. Atty. Gen., 483 F.3d 184, 189 (3d Cir.

2007). In answering this question, we need not defer to the BIA’s determination of

whether the crime at issue constitutes an aggravated felony. Singh v. Ashcroft, 383 F.3d

144, 151 (3d Cir. 2004).

                                      III. Discussion

       In order to determine whether Congress intended the phrase “sexual abuse of a

minor” to include conduct punishable under a particular state statute, we employ the



                                              3
“formal categorical approach” enunciated by the Supreme Court in Taylor v. United

States, 495 U.S. 575, 600-02 (1990), which requires us to compare the statutory definition

of the crime of conviction against the more generic definition in 8 U.S.C. § 1101(a)(43).

Under this approach, we first ask whether all of the conduct proscribed in the statute of

conviction, rather than the conduct proscribed in the particular sub-section the petitioner

was convicted of performing, categorically constitutes “sexual abuse of a minor.” If

some of the conduct proscribed in the statute of conviction falls within the category of

“sexual abuse of a minor,” but some conduct does not—i.e., if there is no categorical

match—only then may we look beyond the statutory definition and take into account the

facts underlying the conviction to determine whether the specific crime at issue

constitutes “sexual abuse of a minor.” Stubbs v. Atty. Gen., 452 F.3d 251, 254-55 (3d Cir.

2006). We have previously held that in taking into account such facts, we are limited to

considering the charging instrument and the plea colloquy. Id.

       As the government concedes, two of the crimes proscribed in petitioner’s statute of

conviction plainly do not constitute “sexual abuse of a minor” because they do not require

the victim to be a minor.1 Consequently, because it is “unclear from the face of the



1
  A person may be convicted of a crime under the same statute of which petitioner was
convicted if he or she “commits an act of sexual penetration with another person” and
either (1) “[t]he actor uses physical force or coercion, but the victim does not sustain
severe personal injury” or (2) “[t]he victim is on probation or parole, or is detained in a
hospital, prison or other institution and the actor has supervisory or disciplinary power
over the victim by virtue of the actor’s legal, professional or occupational status.”
N.J.S.A. 2C:14-2(c)(1)-(2).

                                              4
statute in this case, which includes conduct which both may and may not involve sexual

abuse of a minor, exactly which variation of the statute the respondent was convicted of

violating,” we must turn to the charging instrument. Id. at 255 (internal quotations marks

and citation omitted).

       As quoted at the outset, petitioner pleaded guilty to an accusation, which provided

as follows: “ABAYOMI IJALANA . . . did commit an act of sexual contact with T.O.

when T.O. was at least 13 but less than 16 years old and Abayomi Ijalana was at least 4

years older than T.O.” (J.A. 35.) Because the statute of conviction was overinclusive in

that not all of the conduct it proscribes constitutes sexual abuse of a minor, the only

remaining question is whether the crime of which petitioner was actually convicted

constitutes sexual abuse of a minor.

       We are satisfied that the crime of which petitioner was convicted constituted

“sexual abuse of a minor” for purposes of 8 U.S.C. § 1101(a)(43)(A). “Sexual abuse” is

generally understood to include “[a]n illegal sex act, esp[ecially] one performed against a

minor by an adult.” Black’s Law Dictionary 10 (8th ed. 2004). Central to this definition

is the concept that children of a certain age are incapable, as a matter of law, of

consenting to participation in sexual activity with an adult. See, e.g., Mugalli v. Ashcroft,

258 F.3d 52, 59 n.6 (2d Cir. 2001). Because petitioner admitted to engaging in sexual

activity with a minor—at least 13 but less than 16—while he was at least four years older

than her, he committed the “aggravated felony” of “sexual abuse of a minor.”



                                              5
For the foregoing reasons, we will deny the petition for review.




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