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


9-17-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-1532




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"Khaimraj Singh v. Atty Gen USA" (2004). 2004 Decisions. Paper 279.
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                                          6th & Chestnut Streets
                   PRECEDENTIAL           656 Public Ledger Building
                                          Philadelphia, PA 19106

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

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

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

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

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

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

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

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


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


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

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

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

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


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

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


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

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

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

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

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

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

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

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


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

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




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

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