                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2006

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Precedential or Non-Precedential: Precedential

Docket No. 04-4316




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                                    PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                No. 04-4316


            JEROME STUBBS,

                           Petitioner

                      v.

ATTORNEY GENERAL OF THE UNITED STATES

                           Respondent



      Petition for Review of an order of
      the Board of Immigration Appeals
              No. A46-634-722


         Argued November 16, 2005
       Before: BARRY, and AMBRO, Circuit Judges
                POLLAK*, District Judge

                   (Filed: June 29, 2006)


Thomas E. Moseley, Esquire (Argued)
One Gateway Center
Suite 2600
Newark, NJ 07102

       Counsel for Petitioner

Peter D. Keisler
  Assistant Attorney General, Civil Division
M. Jocelyn Lopez Wright
  Assistant Director
Janice K. Redfern, Esquire
Daniel Goldman, Esquire (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

       Counsel for Respondent




   *
    Honorable Louis H. Pollak, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.

                                2
                 OPINION OF THE COURT


AMBRO, Circuit Judge

       Jerome Stubbs, a Jamaican national, petitions for review
of a final order of removal based on the determination of the
Board of Immigration Appeals (“BIA” or “Board”) that he
committed an aggravated felony pursuant to 8 U.S.C. §
1227(a)(2)(A)(iii) (stating that “[a]ny alien who is convicted of
an aggravated felony at any time after admission is deportable”)
and 8 U.S.C. § 1101(a)(43)(A) (stating that “‘aggravated felony’
means . . . sexual abuse of a minor”). For the reasons set out
below, we conclude that Stubbs’ conviction for “endangering
welfare of children” under N.J. Stat. Ann. § 2C:24-4(a) is not
“sexual abuse of a minor.” We therefore grant the petition for
review, vacate the order of removal, and remand to the BIA for
further proceedings consistent with this opinion.

                   I. Factual Background

       Jerome Stubbs was born in Jamaica in 1980 and was
admitted to the United States as a lawful permanent resident in
1998. In 2002, Stubbs pled guilty to one count of third-degree
“endangering welfare of children” in violation of N.J. Stat.
Ann. § 2C:24-4(a) and was sentenced to two years probation.1

  1
   The record does not include any details of the offense other
than the charge, as identified in the indictment, that Stubbs “did

                                3
The offense of conviction provides that

       [a]ny person having a legal duty for the care of
       a child or who has assumed responsibility for
       the care of a child who engages in sexual
       conduct which would impair or debauch the
       morals of the child, or who causes the child
       harm that would make the child an abused or
       neglected child as defined in [the New Jersey
       protective-welfare statutes,] is guilty of a crime
       of the second degree. Any other person who
       engages in conduct or who causes harm as
       described in this subsection to a child under the
       age of 16 is guilty of a crime of the third degree.

N.J. Stat. Ann. § 2C:24-4(a).2

        Two years after his conviction, United States
Immigration and Customs Enforcement served Stubbs with a
notice to appear, charging him as removable pursuant to 8
U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(A) for
having been convicted of the aggravated felony of sexual abuse


engage in sexual conduct which would impair or debauch the
morals of a child under the age of sixteen, to wit: [child’s
initials], date of birth [date omitted].”
 2
  “Child” is defined in N.J. Stat. Ann. § 2C:24-4(b) as a person
under 16 years of age.

                                 4
of a minor.3 Stubbs appeared before an Immigration Judge
(“IJ”) and admitted the factual allegations in the notice to
appear, but denied removability. On June 16, 2004, the IJ found
Stubbs removable as an aggravated felon. The IJ considered the
statute of conviction and the charging instrument and
determined that Stubbs’ offense came within the definition of
“sexual abuse of a minor” articulated by the BIA in In re
Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (B.I.A. 1999), thus
making the offense an aggravated felony under 8 U.S.C. §
1101(a)(43)(A).

         Stubbs appealed the IJ’s order of removal to the BIA and
it affirmed. It considered Stubbs’ record of conviction,
specifically the charging instrument, and held that “[i]nasmuch
as [Stubbs] engaged in sexual conduct with a child under the age
of 18, [his] criminal activity clearly falls within [the] definition
of sexual abuse of a minor provided by the Board in [Rodriguez-
Rodriguez].” Stubbs now petitions for review to us.4


   3
   In March 2003, the relevant functions of the Immigration
and Naturalization Service were transferred into the new
Department of Homeland Security and reorganized into
Immigration and Customs Enforcement (ICE). See Homeland
Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471,
116 Stat. 2135 (2002); 6 U.S.C. §§ 271- 298.
    4
     We have jurisdiction to review final orders of removal
pursuant to 8 U.S.C. § 1252(a). While under 8 U.S.C. §
1252(a)(2)(C) “no court shall have jurisdiction to review any

                                 5
                         II. Discussion

        Under the Immigration and Nationality Act (“INA”),
“[a]ny alien who is convicted of an aggravated felony at any
time after admission is deportable.”            8 U.S.C. §
1227(a)(2)(A)(iii). “The term ‘aggravated felony’ means,” inter


final order of removal against an alien who is removable by
reason of having committed a criminal offense covered in
section . . . 1227(a)(2)(A)(iii) [aggravated felony],” we have
always had jurisdiction to determine our own jurisdiction by
engaging in an analysis of whether an alien was convicted of a
non-reviewable aggravated felony. Singh v. Ashcroft, 383 F.3d
144, 150 (3d Cir. 2004); Drakes v. Zimski, 240 F.3d 246, 247
(3d Cir. 2001). Moreover, with the passage of the REAL ID Act
of 2005, Pub. L. No. 109-13, 119 Stat. 231, Congress restored,
even for aliens convicted of an aggravated felony, our
jurisdiction over “constitutional claims and questions of law
presented in petitions for review of final removal orders.”
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005)
(citing 8 U.S.C. § 1252(a)(2)(D) (“Nothing in . . . any other
provision of this chapter . . . which limits or eliminates judicial
review . . . shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition
for review filed with an appropriate court of appeals in
accordance with this section.”)). We review de novo the legal
question of whether Stubbs’ offense is an aggravated felony
“[b]ecause we are determining a purely legal question, and one
that governs our own jurisdiction.” Valansi v. Ashcroft, 278
F.3d 203, 207 (3d Cir. 2002).

                                6
alia, “murder, rape, or sexual abuse of a minor.” 8 U.S.C. §
1101(a)(43)(A). Stubbs argues that (1) the BIA erred by
considering the charging instrument and thus failing to limit its
analysis to the statute of conviction in accordance with the
“formal categorical approach,” and (2) his offense under N.J.
Stat. Ann. § 2C:24-4(a) does not constitute “sexual abuse of a
minor” for purposes of 8 U.S.C. § 1101(a)(43)(A). We
conclude that, although the BIA’s departure from the categorical
approach was appropriate here, it erroneously read the statute of
conviction as satisfying its own interpretation of “sexual abuse
of a minor.”

        A. The Categorical Approach

        The parties dispute whether the BIA properly considered
the charging instrument or whether its analysis should have been
limited to the statute of conviction in accordance with the
“categorical approach” announced in Taylor v. United States,
495 U.S. 575 (1990). This approach prohibits consideration of
evidence other than the statutory definition of the offense, thus
precluding review of the particular facts underlying a
conviction. Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir.
2004). As a practical matter, application of the “categorical
approach” would exclude consideration of the charging
instrument in the record or any other evidence about the
specifics of Stubbs’ conduct.

        The “categorical approach” is presumptively applied in


                               7
assessing whether an alien has been convicted of an aggravated
felony. Francis v. Reno, 269 F.2d 162, 171 (3d Cir. 2001). This
approach does not, however, apply when either the terms of “the
federal statute enumerating categories of crimes . . . (the
‘enumerating statute’), [or] the criminal statute of conviction .
. . (the ‘statute of conviction’)” invite further inquiry into the
facts. Singh, 383 F.3d at 161. In either context, the IJ, the BIA,
and our Court are permitted to abandon the constraints of the
“categorical approach” and consider the charging instrument and
the plea colloquy for additional information regarding the
offense. See e.g., Singh, 383 F.3d at 163 (considering “the
charging instrument” or “a formal guilty plea”); Valansi v.
Ashcroft, 278 F.3d 203, 214 (3d Cir. 2002) (considering offense
as charged in the indictment and statements during the plea
colloquy).5 Our Court has held that the “enumerating statute” in
this case, 8 U.S.C. § 1101(a)(43)(A), does not invite further
inquiry and thus does not demand the abandonment of the
“categorical approach.” Singh, 383 F.3d at 164 (holding that
“sexual abuse of a minor” in the INA does not invite further
inquiry). The remaining question is whether the New Jersey
statute pursuant to which Stubbs was convicted (the “statute of
conviction”) invites further inquiry into the facts. We hold that

    5
     We need not decide whether, even in cases where it is
appropriate to abandon the categorical approach, we should ever
extend our “inquiry beyond a charging instrument or a formal
plea.” Singh, 383 F.3d at 163 (“leav[ing] for another day the
question whether statutes phrased in the disjunctive invite such
inquiry beyond a charging instrument or a formal plea”).

                                8
it does.

         The categorical approach is inappropriate when the
“disjunctive phrasing of the statute of conviction . . . invite[s]
inquiry into the specifics of the conviction.” Id. at 148.
Specifically, “where some variations of the crime of conviction
meet the aggravated-felony requisites and others do not, we
have . . . allowed further inquiry to see which variation was
actually committed.” Id. at 162; see also Valansi, 278 F.3d at
214 (underlying facts should be considered when “some, but not
all, of the convictions under [the statute of conviction] qualify
as [an] offense under [the enumerating statute]”). Stubbs argues
that his “statute of conviction” (N.J. Stat. Ann. § 2C:24-4(a)) is
not phrased “in the disjunctive in any relevant way,” and thus
the BIA erred in moving beyond the statute of conviction and
examining the charging instrument in the record. See Singh, 383
F.3d at 163. We disagree.

        To repeat, N.J. Stat. Ann. § 2C:24-4(a) provides for
conviction of a person who either (a) “engages in sexual conduct
which would impair or debauch the morals of the child” or (b)
“causes the child harm that would make the child an abused or
neglected child as defined in [state protective-welfare statutes].”
A conviction could lie under this statute for “willfully failing to
provide proper and sufficient food” for a child pursuant to N.J.
Stat. Ann. § 9:6-1, one of the enumerated protective-welfare
statutes. This offense would hardly constitute “sexual abuse of
a minor” under 8 U.S.C. § 1101(a)(43)(A). The BIA was


                                9
therefore correct in concluding further inquiry was justified, as
it was “unclear from the face of the statute in this case, which
includes conduct which both may and may not involve sexual
abuse of a minor, exactly which variation of the statute the
respondent was convicted of violating.” In re Stubbs, No. A-
46634722 (B.I.A. Nov. 9, 2004). Accordingly, the BIA’s
examination of the charging instrument was appropriate, and it
correctly concluded that Stubbs was convicted under the prong
of N.J. Stat. Ann. § 2C:24-4(a) that prohibits “engag[ing] in
sexual conduct which would impair or debauch the morals of the
child.”

        B. Sexual Abuse of a Minor

        Having determined that the BIA properly considered the
charging instrument in addition to the statute of conviction, we
turn to whether “engag[ing] in sexual conduct which would
impair or debauch the morals of the child” pursuant to N.J. Stat.
Ann. § 2C:24-4(a) constitutes “sexual abuse of a minor” under
the INA. We conclude that the answer is no.

                     1.     The criminal record does not
                            support “sexual abuse of a minor.”

        According to the Board, the charging instrument
indicated Stubbs had “engaged in sexual conduct . . . with a
child under the age of 16” (emphasis added). The Board
concluded that, “[i]nasmuch as the respondent engaged in sexual


                               10
conduct with a child,” his conduct satisfied the definition of
“sexual abuse of a minor” (emphasis added). The charging
instrument actually states, however, in language tracking the
statute of conviction, only that Stubbs was charged with
“engag[ing] in sexual conduct which would impair or debauch
the morals of a child under the age of sixteen, to wit: [child’s
initials], date of birth [date omitted].” Neither the statute of
conviction nor the charging document alleges that Stubbs
engaged in this “sexual conduct” with the child. Due to this
misreading of the charging document’s description of Stubbs’
conduct, we cannot conclude that it was “sexual abuse of a
minor.”

                     2.     Stubbs’ conviction fails to fit the
                            BIA’s definition of “sexual abuse
                            of a minor.”

        Moreover, Stubbs’ conviction fails to satisfy the BIA’s
definition of “sexual abuse of a minor.” In Rodriguez-
Rodriguez, the BIA defined this term in 8 U.S.C. §
1101(a)(43)(A) by considering the definition in 18 U.S.C. §
3509(a)(8), a provision pertaining to the rights of child victims
and witnesses in federal criminal cases.6 Rodriguez-Rodriguez,


    6
      The Board did not adopt § 3509(a)(8) as “a definitive
standard or definition but invoke[d] it as a guide in identifying
the types of crimes [the BIA] would consider to be sexual abuse
of a minor.” Rodriguez-Rodriguez, 22 I. & N. Dec. at 996.

                               11
22 I. & N. Dec. at 995. Section 3509(a)(8) defines “sexual
abuse” to include “the employment, use, persuasion,
inducement, enticement, or coercion of a child to engage in, or
assist another person to engage in, sexually explicit conduct 7 or
the rape, molestation, prostitution, or other form of sexual
exploitation of children, or incest with children.” Even if we
assume, without deciding, that the BIA’s interpretation is
permissible, Stubbs’ offense does not qualify.

        The BIA’s definition of “sexual abuse of a minor”
requires that a past act with a child actually occurred, while the
New Jersey statute of conviction does not necessarily require
that an act with a child took place. Under § 3509(a)(8), a
conviction will lie only when there has been, for example,


  7
   “Sexually explicit conduct” is defined as
      actual or simulated . . . sexual intercourse . . . ;
      sexual contact [, which] means the intentional
      touching, either directly or through clothing, of
      the genitalia, anus, groin, breast, inner thigh, or
      buttocks of any person with an intent to abuse,
      humiliate, harass, degrade, or arouse or gratify
      sexual desire of any person; bestiality;
      masturbation; lascivious exhibition of the genitals
      or pubic area of a person or animal; or sadistic or
      masochistic abuse.
18 U.S.C. § 3509(a)(9).
      “Child” is defined as a person under age 18. 18 U.S.C.
§ 3509(a)(2).

                               12
coercion or enticement of a child. In contrast to the New Jersey
statute, it is not enough under § 3509(a)(8) that a person
engaged in conduct that would coerce or entice a child
(whatever that means); the enticement or coercion must have
occurred. Here, there is no way to know from the statute of
conviction whether any coercion or enticement to engage in
sexually explicit conduct actually happened. Indeed, the
Supreme Court of New Jersey has determined that the

        statute does not appear to require that the State
        demonstrate that the defendant “forced or
        induced” the child to submit to the act that tends
        to debauch the child, as required by [an] earlier
        statute . . . . The deletion of the “forced or
        induced” language from the statute’s present
        version suggests that there no longer need be
        any force or inducement.

State v. Hackett, 764 A.2d 421, 428 (N.J. 2003) (holding that
“mere nudity repeatedly presented at a window can constitute
endangering the welfare of children if the other elements of the
endangering crime are met”). Consequently, we cannot say with
assuredness that conduct under the New Jersey statute
constitutes “employment, use, persuasion, inducement,
enticement, or coercion of a child to engage in, or assist another
person to engage in, sexually explicit conduct.”

                         *    *        *   *


                                  13
        Because the BIA misread the record, and in any event
Stubbs’ statute of conviction does not satisfy the Board’s
definition of “sexual abuse of a minor,” we cannot conclude that
he has committed an aggravated felony pursuant to 8 U.S.C. §
1101(a)(43)(A). We therefore grant the petition for review,
vacate the order of removal, and remand to the BIA for further
proceedings consistent with this opinion.




                              14
