                                    PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-1477


PEDRO JOSUE JIMENEZ-CEDILLO,

                   Petitioner,

             v.

JEFFERSON B. SESSIONS III, Attorney General,

                   Respondent.


                                     No. 17-1893


PEDRO JOSUE JIMENEZ-CEDILLO,

                   Petitioner,

             v.

JEFFERSON B. SESSIONS III, Attorney General,

                   Respondent.


On Petition for Review of an Order of the Board of Immigration Appeals.


Argued: January 23, 2018                                     Decided: March 20, 2018


Before THACKER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Petition for review granted and remanded for further proceedings by published opinion.
Judge Harris wrote the opinion, in which Judge Thacker and Judge Shedd joined.


ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner. Karen L. Melnik, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Helen
L. Parsonage, ELLIOT MORGAN PARSONAGE PLLC, Winston-Salem, North
Carolina, for Petitioner. Chad A. Readler, Acting Assistant Attorney General, Civil
Division, Briena L. Strippoli, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.




                                          2
PAMELA HARRIS, Circuit Judge:

         Pedro Josue Jimenez-Cedillo, a native and citizen of Mexico, was ordered

removed from the United States after the Board of Immigration Appeals determined that

sexual solicitation of a minor in Maryland, to which Jimenez-Cedillo pled guilty, is a

crime involving moral turpitude. Under Maryland law, sexual solicitation of a minor

does not require that the perpetrator know the victim’s age. And before this case, under

Board of Immigration Appeals precedent, a sexual offense against a child categorically

involved moral turpitude only if the perpetrator knew or should have known that the

victim was a minor. Because the Board failed to explain its change in position, we grant

Jimenez-Cedillo’s petition for review and remand for further proceedings.



                                               I.

                                               A.

         Because our decision turns on the development of Board of Immigration Appeals

precedent, we begin by laying out in some detail the statutory and regulatory framework

that governs this case.

         Under the Immigration and Nationality Act (“INA”), an alien convicted of a

“crime     involving      moral   turpitude”    generally   is   inadmissible,   8   U.S.C.

§ 1182(a)(2)(A)(i)(I); removable, id. § 1227(a)(2)(A)(i)–(ii); and ineligible for

cancellation of removal and adjustment of status, id. § 1229b(b)(1)(C). In limiting these

consequences to convictions for crimes “involving moral turpitude,” Congress intended

to single out offenders who do more than “simply the wrong inherent in violating [a]

                                               3
statute.” Mohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014). To qualify as a crime

involving moral turpitude, an offense “must involve conduct that not only violates a

statute but also independently violates a moral norm.” Id. Thus, a crime involving moral

turpitude contains “two essential elements: a culpable mental state and reprehensible

conduct.” Sotnikau v. Lynch, 846 F.3d 731, 736 (4th Cir. 2017) (quoting Matter of

Ortega-Lopez, 26 I. & N. Dec. 99, 100 (B.I.A. 2013)).

       The Board of Immigration Appeals (“Board”) has long held that a crime involves

moral turpitude only if it requires a culpable mental state. But it has been less clear

exactly how that rule applies to sexual offenses against minors, and specifically, whether

mental culpability is required as to the age of the victim. In 2008, Attorney General

Mukasey resolved that question in Matter of Silva-Trevino (“Silva-Trevino I”), a lengthy

opinion establishing a “uniform framework” for applying the INA’s moral turpitude

provisions. 24 I. & N. Dec. 687, 688 (A.G. 2008).

       According to Silva-Trevino I, sexual offenses against minors qualify as crimes

involving moral turpitude if they require not only “reprehensible conduct,” but also

“some degree of scienter, whether specific intent, deliberateness, willfulness, or

recklessness.” Id. at 689 n.1; see also id. at 706–07 & n.5. That means, the Attorney

General explained, that offenses should be treated as crimes involving moral turpitude

when they are “limit[ed] . . . to defendants who knew, or reasonably should have known,

that their intentional sexual acts were directed at children.” Id. at 707. Requiring

qualifying statutes to have a “mistake-of-age” defense – that a defendant reasonably

believed his or her victim was not a child – “ensures that individuals will be convicted [of

                                             4
a crime involving moral turpitude] only if they willfully or knowingly directed sexual

conduct towards someone they knew, or reasonably should have known, was a child.”

Id.; see also id. at 705–06 (rejecting Board’s suggestion that moral turpitude turns on

“severity of the sexual contact at issue” and finding that mental culpability with respect to

victim’s age is “critical factor”). Even statutory rape convictions, the Attorney General

elaborated, would not categorically involve moral turpitude if the relevant statute did not

allow for a mistake-of-age defense. Id. at 707 n.6.

       The Attorney General thoroughly explained the reasoning that led to this result.

First, the rule announced in Silva-Trevino I was consistent with the weight of Board and

federal court precedent, serving as a “rearticulat[ion] with greater clarity” of a mental

culpability requirement already being applied in most cases. Id. at 689 n.1; see also id. at

706–07 & n.5. Second, that requirement “faithfully implements the [INA’s] distinction

between crimes involving moral turpitude . . . and criminal conduct generally,” ensuring

that violation of a criminal statute is not by itself deemed sufficient to show moral

turpitude. Id. at 689 n.1; see also id. at 706. And finally, uniform application of the

INA’s moral turpitude provision would provide aliens with “clearer notice of which

criminal convictions will trigger certain immigration consequences.” Id. at 689 n.1.

       Silva-Trevino I also announced a second holding: If an offense did not qualify as

a crime involving moral turpitude as a categorical matter – that is, if the statute’s

elements alone did not require the necessary culpable mental state and reprehensible

conduct – then an immigration judge (“IJ”) could undertake a “modified categorical”

inquiry, examining evidence outside the record of conviction to determine whether the

                                             5
underlying conviction in fact was for conduct involving moral turpitude. Id. at 690, 708–

09, 707 n.6. Not long after Silva-Trevino I, however, this court, along with others, held

to the contrary, concluding that the INA unambiguously requires that “an adjudicator

consider only the conviction itself, and not any underlying conduct,” in determining

whether a crime qualifies as one involving moral turpitude. Prudencio v. Holder, 669

F.3d 472, 482 (4th Cir. 2012).

       The Attorney General (now Attorney General Holder) responded to those court

decisions by vacating Silva-Trevino I in its entirety. Matter of Silva-Trevino, 26 I. & N.

Dec. 550, 553 (A.G. 2015) (“Silva-Trevino II”). But Silva-Trevino II made clear that it

was not disapproving all aspects of Silva-Trevino I. Id. Instead, Silva-Trevino II clarified

that Silva-Trevino I’s culpable mental state requirement remained appropriate, and that

the Attorney General’s decision did not “affect Board determinations that an offense

entails or does not entail ‘reprehensible conduct and some form of scienter’ and is or is

not a crime involving moral turpitude for that reason.” Id. at 553 n.3 (citing Silva-

Trevino I and Board cases applying Silva-Trevino I).

       Finally, when the case again was remanded to the Board, the Board reaffirmed

Silva-Trevino I’s essential holding, “find[ing] no reason to deviate” from the rule that “a

crime involving intentional sexual conduct by an adult with a child involves moral

turpitude as long as the perpetrator knew or should have known that the victim was a

minor.” Matter of Silva-Trevino, 26 I. & N. Dec. 826, 834 (B.I.A. 2016) (“Silva-Trevino

III”). Accordingly, the Board held that the Texas offense of which Silva-Trevino was

convicted, prohibiting the sexual touching of a child, was not categorically a crime

                                             6
involving moral turpitude because it did not require proof that the defendant knew or

should have known of the victim’s age. Id. at 835. In a footnote, however, the Board

“reserve[d] the question” whether “crimes commonly known as ‘statutory rape’” – “a

distinct category of crimes that require the penetration of the child or similar conduct” –

might qualify as crimes involving moral turpitude even when they “do not require a

perpetrator to have knowledge of the age of the victim.” Id. at 834 n.9.

                                            B.

       In February 2015, while Silva-Trevino I was in effect, Jimenez-Cedillo pled guilty

to sexually soliciting a minor in violation of Maryland law. See Md. Code Ann., Crim.

Law § 3-324 (prohibiting solicitation of a minor with intent to engage in sexual acts that

would be unlawful under Md. Code Ann., Crim. Law § 3-307); id. § 3-307 (prohibiting,

inter alia, sexual contact with a person under age 14 if the perpetrator is at least four

years older). There is no dispute about the elements of the offense: A defendant may be

convicted without proof that he knew or should have known that the person solicited was

not of legal age. See id.; Att’y Grievance Comm’n v. Greenleaf, 91 A.3d 1066, 1071 n.9

(Md. 2014); Choudry v. State, 153 A.3d 895, 898 (Md. Ct. Spec. App. 2017).

       The Department of Homeland Security charged Jimenez-Cedillo with removability

on the ground that he was present in the United States without being admitted, see 8

U.S.C. § 1182(a)(6)(A)(i), and also on the ground that he had been convicted of a crime

involving moral turpitude, see id. § 1182(a)(2)(A)(i)(I). Jimenez-Cedillo conceded the




                                            7
first charge, but denied that his Maryland conviction was for a crime involving moral

turpitude. 1 The IJ ruled against Jimenez-Cedillo, and Jimenez-Cedillo appealed.

       The Board dismissed Jimenez-Cedillo’s appeal in a precedential decision, holding

that Maryland’s sexual solicitation of a minor offense qualifies categorically as a crime

involving moral turpitude. The Board acknowledged that a defendant could be convicted

of the offense “even if there was a reasonable mistake as to the victim’s age.” Matter of

Jimenez-Cedillo, 27 I. & N. Dec. 1, 4 (B.I.A. 2017). But, the Board reasoned, it had “yet

to decide whether sexual crimes that do not require a perpetrator to possess a culpable

mental state with respect to the age of the victim are crimes involving moral turpitude.”

Id. As authority, the Board cited footnote nine of Silva-Trevino III, regarding statutory

rape, and explained that it had not “foreclose[d] the possibility that moral turpitude will

inhere in some crimes, even if the relevant statute lacks an element that requires the

perpetrator to have some culpable mental state regarding the victim’s age.” Id. at 4–5.

“[C]larify[ing]” Silva-Trevino III, the Board went on to hold that statutes criminalizing

sexual offenses against children are crimes involving moral turpitude regardless of

whether they require a culpable mental state as to the child’s age, so long as “the victim is

particularly young” or “the age differential between the perpetrator and victim is

significant.” Id. at 5. Because the Maryland offense in question meets that standard –


       1
        The distinction matters because aliens present without being admitted, but not
aliens convicted of crimes involving moral turpitude, may apply for cancellation of
removal and adjustment of status if they meet certain qualifications. See 8 U.S.C.
§ 1229b(b)(1). Jimenez-Cedillo, for instance, wishes to seek cancellation of removal
based on the hardship that would befall his United States citizen wife.

                                             8
criminalizing sexual contact between a victim under 14 and a perpetrator four years older

– the Board concluded that it “categorically fits within the generic definition of a crime

involving moral turpitude.” Id. at 6.

       Jimenez-Cedillo moved for reconsideration, and the Board denied his motion. The

Board again rejected the argument that sexual solicitation of a minor under Maryland law

does not categorically involve moral turpitude because it does not require mental

culpability as to the age of the victim. In the alternative, Jimenez-Cedillo argued that

Maryland’s offense also fails to satisfy the “reprehensibility” standard for crimes

involving moral turpitude, because it reaches conduct so relatively non-severe – for

instance, a 17-year old touching the clothed buttocks of a 13-year old, see Bible v. State,

982 A.2d 348, 358–59 (Md. 2009) (holding that statute reaches touching of clothed

buttocks) – that it is not even criminalized in some states. The Board rejected that

argument, too, characterizing it as a matter of “differences in line drawing” and

defending its decision to draw a line at age 14. A.R. 4.

       Jimenez-Cedillo timely petitioned this court for review.



                                            II.

       Jimenez-Cedillo argues that the Board’s primary error is its failure to explain why

it abandoned the Silva-Trevino rule that an offense must require proof of a culpable




                                             9
mental state as to the victim’s age in order to qualify as a crime involving moral

turpitude. We agree. 2

      “One of the basic procedural requirements of administrative rulemaking is that an

agency must give adequate reasons for its decisions.”       Encino Motorcars, LLC v.

Navarro, 136 S. Ct. 2117, 2125 (2016). An agency can satisfy that requirement by

providing an explanation with enough clarity that its “path may reasonably be discerned.”

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). So

long as the agency “provide[s] an explanation of its decision that includes a rational

connection between the facts found and the choice made,” we will uphold its decision.

Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009)

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)). “But where the agency has failed to provide even that minimal level of analysis,

its action is arbitrary and capricious and so cannot carry the force of law.” Encino

Motorcars, 136 S. Ct. at 2125 (citing State Farm, 463 U.S. at 42–43).

      The same principles apply to a change in agency position. An agency is not, of

course, permanently bound by the first reasoned decision it makes. To the contrary,

“[a]gencies are free to change their existing policies” – but in doing so, they must

“provide a reasoned explanation for the change.” Id. At a minimum, an agency must

“display awareness that it is changing position and show that there are good reasons for

      2
         In light of this holding, we do not reach Jimenez-Cedillo’s alternative argument
that the least culpable conduct criminalized under Maryland’s sexual solicitation of a
minor statute is not sufficiently reprehensible to qualify as a crime involving moral
turpitude.

                                           10
the new policy.” Id. at 2126 (internal quotation marks omitted). “In explaining its

changed position, an agency must also be cognizant that long-standing policies may have

engendered serious reliance interests that must be taken into account.” Id. (internal

quotation marks omitted). An “unexplained inconsistency” in agency policy indicates

that the agency’s action is arbitrary and capricious, and therefore unlawful. Id. (quoting

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)).

       The government does not dispute these well-established legal principles. Nor does

it argue that the Board has complied with the requirement that it acknowledge and

explain any change in agency position. Instead, the government takes the view that there

is no change to be explained – that the Board never took a position contrary to the one it

announced and applied in this case. We cannot agree.

       From Silva-Trevino I through Silva-Trevino III, the Board was clear and consistent

on the fundamental point at issue: “[A] crime involving intentional sexual conduct by an

adult with a child involves moral turpitude as long as the perpetrator knew or should have

known that the victim was a minor.” Silva-Trevino III, 26 I. & N. Dec. at 834. In Silva-

Trevino I, the Attorney General, thoroughly explaining his reasoning, rejected the view

that the moral turpitude inquiry should turn on the severity of the conduct in question and

insisted that what was critical was “whether the perpetrator knew or should have known

the victim’s age.” 24 I. & N. Dec. at 706. The requirement of mental culpability as to

age, the Attorney General made clear, applied to all sexual offenses against children,

including statutory rape. See id. at 707 n.6. Silva-Trevino II, though it vacated Silva-

Trevino I on other grounds, did not “disapprove” of that aspect of the prior decision,

                                            11
specifically disclaiming any intent to affect Board determinations applying Silva-Trevino

I’s mental culpability requirement. 26 I. & N. Dec. at 553 & n.3. And soon after, Silva-

Trevino III expressly reaffirmed the rule requiring mental culpability as to age, finding

“no reason to deviate” from Silva-Trevino I’s holding on that question. 26 I. & N. Dec. at

834. Whatever the merits of the position taken by the Board in this case – that mental

culpability as to age is not required before a law prohibiting the sexual touching of a

minor may be deemed a crime involving moral turpitude – it seems clear that it is a new

one.

       The government’s argument to the contrary rests on footnote nine of Silva-Trevino

III, in which the Board “reserve[d] the question” whether “crimes commonly known as

‘statutory rape’” – a “distinct category of crimes that require the penetration of the child

or similar conduct” – may be treated as crimes involving moral turpitude even if they do

not require a culpable mental state as to the age of the victim. Id. at 834 n.9. The

government does not dispute that the Maryland statute under which Jimenez-Cedillo was

convicted reaches well beyond statutory rape. See Md. Code Ann., Crim. Law § 3-307

(encompassing any “sexual contact” with a person under the age of 14 if the perpetrator

is at least four years older); Bible, 982 A.2d at 358–59 (holding that touching of clothed

buttocks is prohibited “sexual contact”). Instead, the government insists that when Silva-

Trevino III says “crimes commonly known as ‘statutory rape,’” what it means is not

“crimes commonly known as ‘statutory rape’” but rather “all strict liability offenses

involving young children or significant age disparities between perpetrators and minor

victims.” That reading simply cannot be reconciled with the text of Silva-Trevino III.

                                            12
Nor, we note, can it be reconciled with the decision’s holding: that a Texas offense much

like Maryland’s, criminalizing all forms of sexual contact with a child, does not

categorically involve moral turpitude “[b]ecause [it] is broad enough to punish behavior

that is not accompanied by the defendant’s knowledge that the victim was a minor.” 26 I.

& N. Dec. at 835.

       For that reason, footnote nine of Silva-Trevino III, limited to the “distinct

category” of statutory rape, has no bearing on the status of the Maryland offense at issue

here. And even if it did, the government’s argument would face a second problem:

There still is no explanation for the Board’s decision to abandon the requirement of

mental culpability as to a victim’s age, in whole or in part. Footnote nine does no more

than “reserve” the possibility that the Board might in the future reconsider Silva-Trevino

I’s application to statutory rape; it is not itself a change in position, and it provides no

explanation for why statutory rape should be excluded from Silva-Trevino I’s long-

standing rule. See Silva-Trevino III, 26 I. & N. Dec. at 834 & n.9. The actual change in

position comes only in this case, and it comes without explanation or even the requisite

acknowledgment that it has happened. See Encino Motorcars, 136 S. Ct. at 2126 (agency

“must at least display awareness that it is changing position”).

       It may be that the Board had good cause for changing its approach to mental

culpability, and we do not foreclose that possibility here. But a reviewing court may not

“speculate on reasons that might have supported” a change in agency position, id. at

2127, nor “supply a reasoned basis for the agency’s action that the agency itself has not

given,” id. (quoting State Farm, 463 U.S. at 43); see SEC v. Chenery Corp., 332 U.S.

                                             13
194, 196 (1947). Here, we are without a reasoned explanation from the Board for its

change in position. And without one, we cannot know whether and how the Board has

accounted for the prospect that its prior policy may have “engendered serious reliance

interests” in aliens who pled guilty to certain sexual offenses under the Silva-Trevino

regime. See Encino Motorcars, 136 S. Ct. at 2126 (holding that agency explanation for

changed position must take account of reliance interests engendered by former policy);

Silva-Trevino I, 24 I. & N. Dec. at 689 n.1 (noting importance of providing aliens with

notice as to which convictions will trigger immigration consequences). Because the

Board’s “path” from the Silva-Trevino cases to Jimenez-Cedillo’s cannot “reasonably be

discerned,” its decision is arbitrary and capricious and must be set aside. See Bowman

Transp., Inc., 419 U.S. at 286.

       Accordingly, we remand this case to the Board for further proceedings consistent

with this opinion. See Dalton v. United States, 816 F.2d 971, 974–75 (4th Cir. 1987)

(remanding with instructions that agency consider question anew where it failed to offer

reasoned explanation); INS v. Ventura, 537 U.S. 12, 16–17 (2002) (“Generally speaking,

a court of appeals should remand a case to an agency for decision of a matter that statutes

place primarily in agency hands.        This principle has obvious importance in the

immigration context.”). If it is the Board’s judgment that there should be a change in the

Silva-Trevino rule on mental culpability as to a victim’s age, then it should provide the

requisite “good reasons for [any] new policy” it adopts in this case.         See Encino

Motorcars, 136 S. Ct. at 2126.



                                            14
       We also leave it to the Board to consider in the first instance whether a new policy

may be applied retroactively to Jimenez-Cedillo. Jimenez-Cedillo argues that when he

entered his guilty plea in February of 2015, Silva-Trevino I was in effect, giving him

every reason to believe he was pleading guilty to an offense that did not qualify as a

crime involving moral turpitude because it did not allow for a mistake-of-age defense.

As both the Supreme Court and the Board have made clear, aliens have an important

interest in being able to anticipate the immigration consequences of guilty pleas, allowing

them to enter “safe harbor” pleas that do not expose them to immigration-related

penalties. Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015); Silva-Trevino I, 24 I. & N.

Dec. at 689 n.1. If on remand the Board takes the position that a change in Silva-Trevino

I’s approach to mental culpability is appropriate, then it also should consider whether,

under the traditional factors that bear on retroactivity analysis, see ARA Servs., Inc. v.

NLRB, 71 F.3d 129, 135–36 (4th Cir. 1995) (citing Retail, Wholesale & Dep’t Store

Union v. NLRB, 466 F.2d 380, 389–90 (D.C. Cir. 1972)), that new position may be

applied to Jimenez-Cedillo and other aliens similarly situated.



                                           III.

       For the foregoing reasons, we grant Jimenez-Cedillo’s petition for review and

remand the case to the Board for further proceedings consistent with this opinion.



                                                PETITION FOR REVIEW GRANTED;
                                          REMANDED FOR FURTHER PROCEEDINGS


                                            15
