                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-2170


RAFAEL ANTONIO LARIOS-REYES, a/k/a Rafael A. Reyes,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



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


Argued:   September 21, 2016                 Decided:   December 6, 2016


Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.


Petition for review granted and order of removal vacated by
published opinion.   Chief Judge Gregory wrote the opinion, in
which Judge Niemeyer and Judge Harris joined.


ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner.     Karen L. Melnik,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.   ON BRIEF: Himedes V. Chicas, JEZIC & MOYSE, LLC,
Silver Spring, Maryland, for Petitioner.     Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Derek C. Julius,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
GREGORY, Chief Judge:

       Rafael Antonio Larios-Reyes, a native and citizen of El

Salvador,     seeks      review        of     the      decision        of    the     Board     of

Immigration Appeals (“BIA”) finding him removable based on his

conviction     for       “Third       Degree          Sex    Offense”        under       Maryland

Criminal Law Article § 3-307.                     The BIA determined that Larios-

Reyes’s state conviction qualifies as the aggravated felony of

“sexual     abuse       of     a    minor”        under      § 1101(a)(43)(A)            of   the

Immigration       and        Nationality      Act        (“INA”)       and     affirmed       the

immigration       judge’s          finding    that          Larios-Reyes       is     therefore

removable.     We find that the BIA erred as a matter of law and

hold   that   Larios-Reyes’s            conviction           does   not      constitute       the

aggravated felony of “sexual abuse of a minor” under the INA

because Maryland Criminal Law Article § 3-307 proscribes more

conduct than does the generic federal offense.                                 We therefore

grant Larios-Reyes’s petition for review, vacate the order of

removal,    and     order      his    immediate          release    from      Department       of

Homeland Security (“DHS”) custody.



                                              I.

       Larios-Reyes          entered        the       United     States       as     a      lawful

permanent     resident         in     1999,       when      he   was    four        years     old.

Administrative Record (“A.R.”) 450.                         On August 5, 2013, Larios-

Reyes was charged with “Sex Offense Second Degree” in violation

                                                  2
of Maryland Criminal Law Article § 3-306 and “Sex Abuse Minor”

in violation of § 3-602(b)(1).        Id. at 765.   On September 13,

2013, Larios-Reyes was indicted on both counts.     Id. at 762-63.

     In May 2014, Larios-Reyes and the State of Maryland reached

a plea agreement.     The State dismissed the “Sex Abuse Minor”

charge and amended the “Sex Offense Second Degree” charge to the

lesser charge of “Third Degree Sex Offense” under § 3-307.       Id.

at 756, 769.    Larios-Reyes pleaded guilty to the amended second

charge, which states that

     RAFAEL ANTONIO REYES (date of birth 09/16/94), on or
     about and between November 1, 2012, and November 30,
     2012[,] . . . in Montgomery County, Maryland, did
     commit a sexual offense in the third degree on
     [victim] (date of birth 05/23/08), to wit:  fellacio,
     in violation of Section 3-307 of the Criminal Law
     Article against the peace, government, and dignity of
     the State.

Id. at 763.

     The Maryland statute under which Larios-Reyes was convicted

provides that

          (a) A person may not:

                (1) (i) engage   in  sexual  contact  with
                        another without the consent of the
                        other; and

                    (ii) 1. employ or display a dangerous
                            weapon, or a physical object that
                            the victim reasonably believes is
                            a dangerous weapon;

                        2. suffocate, strangle, disfigure,
                           or   inflict  serious  physical
                           injury on the victim or another


                                  3
                             in the course of committing the
                             crime;

                       3. threaten, or place the victim in
                          fear, that the victim, or an
                          individual known to the victim,
                          imminently will be subject to
                          death,   suffocation,   strangula-
                          tion,    disfigurement,    serious
                          physical injury, or kidnapping;
                          or

                       4. commit the crime while aided and
                          abetted by another;

               (2) engage in sexual contact with another if
                   the victim is a mentally defective
                   individual,  a   mentally  incapacitated
                   individual, or a physically helpless
                   individual, and the person performing
                   the act knows or reasonably should know
                   the victim is a mentally defective
                   individual,  a   mentally  incapacitated
                   individual, or a physically helpless
                   individual;

               (3) engage in sexual contact with another if
                   the victim is under the age of 14 years,
                   and the person performing the sexual
                   contact is at least 4 years older than
                   the victim;

               (4) engage in a sexual act with another if
                   the victim is 14 or 15 years old, and
                   the person performing the sexual act is
                   at least 21 years old; or

               (5) engage   in   vaginal  intercourse with
                   another if the victim is 14 or 15 years
                   old, and the person performing the act
                   is at least 21 years old.

Md. Code Ann., Crim. Law § 3-307 (2002).

     The   Circuit   Court    for       Montgomery   County,   Maryland,

sentenced Larios-Reyes to 364 days in prison, all suspended, and


                                    4
five years of supervised probation and medical treatment.                                    It

also ordered him to register as a sexual offender.                            A.R. 769-73.

In    July    2014,    when      Larios-Reyes        failed       to       report    to     his

probation officer or register as a sexual offender, the court

issued a warrant for his arrest.                   Id. at 778-81.             Larios-Reyes

was   arrested       approximately        one    month     later    and      ordered       held

without bond.        Id. at 757.

      In     October    2014,      DHS    issued     Larios-Reyes            a    notice     to

appear.        DHS     charged      him     with    removability            based    on     his

conviction under § 3-307, which DHS contended constituted the

aggravated      felony      of      “sexual        abuse     of        a    minor”        under

§ 1101(a)(43)(A) of the INA.                 Id. at 822.           On March 27, 2015,

the   immigration       judge      upheld    the    charge    of       removability         and

ordered      Larios-Reyes       removed      from    the     United         States    to     El

Salvador.      Id. at 397.       Larios-Reyes appealed to the BIA.

      There was no dispute on appeal that a conviction under § 3-

307--without more information on what part of § 3-307 Larios-

Reyes violated--would not constitute “sexual abuse of a minor”

under the INA.         What the parties contested was whether the BIA

could consider a narrower portion of § 3-307 to determine if the

particular     elements       of    Larios-Reyes’s          conviction           constituted

“sexual abuse of a minor.”                  The questions for the BIA, then,

were (1) whether § 3-307 is a divisible statute, meaning that it

creates multiple alternative offenses, at least one of which

                                             5
constitutes         “sexual    abuse     of    a   minor,”      and    if   so,    (2)    what

portion of § 3-307 Larios-Reyes was necessarily convicted of,

and    (3)        whether    the   elements        of    Larios-Reyes’s           conviction

matched the elements of the generic federal offense.

       In an unpublished opinion issued by a single member, the

BIA first concluded that § 3-307 is a divisible statute because

it “create[s] multiple versions of the crime of sexual offense

in the third degree.”              Id. at 4.             The BIA then reviewed the

record       of     conviction     and        concluded        that    Larios-Reyes       was

convicted          under     § 3-307(a)(3).              The     BIA    enumerated        the

“essential elements of an offense under § 3-307(a)(3)” as “that

the    defendant       had    sexual     contact        with    the    victim,     that   the

victim was under 14 years of age at the time of the act, and

that the defendant was at least 4 years older than the victim.”

Id.    It further found that although the conduct specified in the

indictment--fellatio--falls              within         the    definition     of    “sexual

act” under Maryland law, “such conduct is also encompassed by

the definition of ‘sexual contact,’” id. at 4 n.3, which is the

conduct element in § 3-307(a)(3).

       The BIA then concluded that an offense under § 3-307(a)(3)

categorically constitutes “sexual abuse of a minor” under the

INA.     Id. at 5.           In reaching this conclusion, the BIA did not

adopt a definition of the generic federal offense.                               Nor did it

refer directly to any interpretations set forth in either BIA or

                                               6
Fourth Circuit precedent.          Instead, it compared § 3-307(a)(3)’s

elements to the elements of a California statute that the BIA

had   determined      constituted     the   federal        generic        offense     of

“sexual abuse of a minor” in In re Esquivel-Quintana, 26 I. & N.

Dec. 469 (B.I.A. 2015), aff’d, Esquivel-Quintana v. Lynch, 810

F.3d 1019 (6th Cir. 2016), cert. granted, No. 16-54, 2016 WL

3689050 (U.S. Oct. 28, 2016).          A.R. 4-5.         The BIA here held that

because     § 3-307(a)(3)’s        elements        are     narrower        than      the

California statute’s, § 3-307(a)(3) also categorically matches

the generic federal offense.

      The    BIA   accordingly      affirmed       the     immigration           judge’s

determination      that    Larios-Reyes       is    removable        as     an    alien

convicted of an aggravated felony under § 1101(a)(43)(A) of the

INA, and it dismissed his appeal.                  Larios-Reyes timely filed

this petition for review of the BIA’s decision.



                                      II.

      We generally lack jurisdiction to review any final order of

removal     against   an   alien    removable      as     an    aggravated        felon.

8 U.S.C. § 1252(a)(2)(C); Kporlor v. Holder, 597 F.3d 222, 225–

26 (4th Cir. 2010).        We have limited jurisdiction, however, to

review    constitutional     claims    or   questions          of   law,    including

whether     a   conviction    qualifies       as     an        aggravated        felony.

8 U.S.C. § 1252(a)(2)(D); Amos v. Lynch, 790 F.3d 512, 517 (4th

                                       7
Cir. 2015).     We review this question of law de novo.                         Castillo

v. Holder, 776 F.3d 262, 267 (4th Cir. 2015).

                                         A.

      Under   the    INA,   an   alien     is    removable     if   he     or    she   is

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

8 U.S.C. § 1227(a)(2)(A)(iii).             The INA contains a long list of

crimes that qualify as an “aggravated felony,” including “sexual

abuse of a minor.”      8 U.S.C. § 1101(a)(43)(A).

      To determine whether Larios-Reyes’s conviction under § 3-

307 qualifies as “sexual abuse of a minor” under the INA, we

would usually apply the categorical approach set forth in Taylor

v. United States, 495 U.S. 575 (1990).                   Under this approach, we

ask   whether       “‘the   state     statute       defining        the     crime      of

conviction’     categorically       fits       within    the   ‘generic’        federal

definition of a corresponding aggravated felony.”                    Moncrieffe v.

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

Duenas–Alvarez, 549 U.S. 183, 186 (2007)).                     We answer this by

first considering the elements of the generic federal crime.

See Taylor, 495 U.S. at 590.          The state statute is a categorical

match with the federal definition “only if a conviction of the

state offense ‘“necessarily” involved . . .                    facts equating to

[the] generic [federal offense].’”                 Moncrieffe, 133 S. Ct. at

1684 (quoting Shepard v. United States, 544 U.S. 13, 24 (2005))

(alterations in original).           We therefore “focus on the minimum

                                           8
conduct necessary for a violation of the state statute, while

ensuring       that        there       is   a    ‘realistic             probability,          not    a

theoretical possibility, that the State would apply its statute

to    conduct       that    falls       outside       the    generic             definition    of     a

crime.’”        Castillo, 776 F.3d at 267–68 (quoting Gonzales, 549

U.S. at 193).             We look to the decisions of Maryland’s appellate

courts to see both the minimum conduct to which the statute has

been applied and those courts’ pronouncements on the minimum

conduct to which the statute might be applied.                                    See id. at 268.

And “‘[t]o the extent that the statutory definition of [§ 3-

307(a)(3)]          has    been       interpreted’          by     the       state’s       appellate

courts,       ‘that       interpretation         constrains            our       analysis    of     the

elements       of     state       law.’”         Id.     (quoting            United    States        v.

Aparicio–Soria, 740 F.3d 152, 154 (4th Cir. 2014)).

       Here, the parties do not dispute that under the categorical

approach,       § 3-307          is    broader        than       any     conceivable        federal

definition          of    “sexual        abuse      of   a       minor”          because    § 3-307

enumerates several offenses that do not require the victim to be

a    minor.         See    Md.     Code     Ann.,     Crim.       Law        § 3-307(a)(1), (2).

Under the categorical approach, then, Larios-Reyes would easily

prevail.       But the Supreme Court has recognized a “narrow range

of cases” in which courts, when faced with an overbroad but

“divisible”         statute,          may   consider        whether          a    portion    of     the

statute       is      a    categorical           match       to        the       federal    generic

                                                  9
definition.         Descamps v. United States, 133 S. Ct. 2276, 2284

(2013) (quoting Taylor, 495 U.S. at 602).                                 This is called the

“modified categorical approach.”

       In   order    for   a    court       to    apply          the    modified    categorical

approach, a statute must be “divisible.”                               A statute is divisible

when it (1) “sets out one or more elements of the offense in the

alternative,” and (2) at least one of those elements or sets of

elements corresponds to the federal definition at issue.                                   Id. at

2281; see also United States v. Cabrera-Umanzor, 728 F.3d 347,

352 (4th Cir. 2013) (stating that “general divisibility [] is

not enough; a statute is divisible . . . only if at least one of

the     categories . . . constitutes,                       by         its     elements,      [an

aggravated felony]”).            For the first prong, the focus is on the

statute’s     elements,        not    the    facts          of    the     crime.      Then,   the

inquiry is whether the statute has listed “multiple, alternative

elements, . . . effectively creat[ing] ‘several different . . .

crimes.’”         Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v.

Holder,     557     U.S.   29,       41    (2009)).               The     Supreme    Court    has

emphasized that a statute setting forth merely alternative means

of    committing     an    offense        will        not   satisfy          this   requirement.

Mathis v. United States, 136 S. Ct. 2243, 2255 (2016).                                  This is

because a federal penalty may be imposed based only on what a

jury necessarily found or what a defendant necessarily pleaded



                                                 10
guilty    to,       and   the   means   of       commission        is    not       necessary     to

support a conviction.            Id.

      If a statute is divisible, then the modified categorical

approach    is       appropriate.            This       approach        permits      courts      to

“examine    a       limited     class       of        documents,”       known       as    Shepard

documents, 1        “to    determine        which       of   a     statute’s        alternative

elements formed the basis of the defendant’s prior conviction.”

Descamps, 133 S. Ct. at 2284.                     It is then possible to compare

the   particular          elements     of    the       conviction,        rather         than   the

elements    of      the    statute     as    a    whole,      to    the    federal        generic

definition.

      The Supreme Court has “underscored the narrow scope of” the

modified categorical approach.                        Id.    It is “to identify, from

among several alternatives, the crime of conviction so that the

court can compare it to the generic offense.”                             Id. at 2285.          The

Court has made clear that review under this approach “does not

authorize       a    sentencing      court       to     substitute       []    a    facts-based

inquiry for an elements-based one.                      A court may use the modified

      1 Shepard documents “includ[e] charging documents, plea
agreements, transcripts of plea colloquies, findings of fact and
conclusions of law from a bench trial, and jury instructions and
verdict forms.”    Johnson v. United States, 559 U.S. 133, 144
(2010); see also Shepard, 544 U.S. at 26 (listing documents that
a reviewing court may consider).    And in this Circuit, courts
may also consider applications for statements of charges and
statements of probable cause, so long as the statements are
expressly incorporated into the statement of charges itself.
United States v. Donnell, 661 F.3d 890, 894-96 (4th Cir. 2011).


                                                 11
approach    only     to    determine       which     alternative        element       in   a

divisible        statute     formed        the     basis      of      the     defendant’s

conviction.”         Id.     at   2293.          Once     a   court    has     made    this

determination, it can compare that part of the statute to the

generic     federal       offense     using       the     traditional         categorical

approach, which remains centered on elements, not facts.                             Id. at

2285 (stating that the modified categorical approach “preserves

the categorical approach’s basic method”).                     And where an element

of the conviction is defined to include multiple alternative

means, courts must consider all of those means; an element is

not further divisible into its component parts.                               See id. at

2291; see also Mathis, 136 S. Ct. at 2255-57.

     To begin this analysis, we must determine whether § 3-307

is a divisible statute.             We agree with the BIA that it is.                      We

recently held in United States v. Alfaro, 835 F.3d 470, 473 (4th

Cir. 2016), that § 3-307 lists alternative sets of elements that

create multiple versions of the crime of third-degree sexual

offense.      Alfaro       thus   confirms        that    § 3-307     meets    the    first

prong of the divisibility inquiry.                       Alfaro does not, however,

resolve    the    second    prong     of    the    divisibility        test,    which      is

whether any set of elements in § 3-307 constitutes “sexual abuse

of a minor.”

     In Alfaro, we held that § 3-307 is divisible, but we were

comparing § 3-307 to “crime of violence” under the Sentencing

                                            12
Guidelines.      Id.    Here, we must determine whether any set of

elements in § 3-307 constitutes an “aggravated felony” under the

INA--a question not answered by Alfaro.             We emphasize the point

that a statute might be divisible as compared to one federal

statute and not divisible as compared to another.                   Whether any

set of elements meets the generic federal definition will vary

depending   on   the   generic   federal     definition     at     issue.    The

second prong of the divisibility inquiry sometimes merits less

discussion, see id., but it is an important--and required--step

in the analysis. 2     Here, at least one set of elements in § 3-307

must qualify as “sexual abuse of a minor” in order for the

statute to be divisible.

     We find that at least the set of elements in § 3-307(a)(5)

constitutes “sexual abuse of a minor” under the INA.                 Section 3-

307(a)(5)   prohibits     “engag[ing]      in   vaginal     intercourse     with

another if the victim is 14 or 15 years old, and the person

performing the act is at least 21 years old.”                      This clearly

constitutes   “sexual    abuse   of   a    minor”   under    any    conceivable




     2 Indeed, had the petitioner here recognized that Alfaro
only answered the first prong of the divisibility inquiry, he
might   not  have   conceded  at  oral   argument  that  Alfaro
conclusively establishes that § 3-307 is a divisible statute in
this case.



                                      13
federal   generic     definition. 3         Because          at    least    one    set     of

elements matches the generic federal offense, the second prong

of the divisibility inquiry is satisfied.                     Section 3-307 is thus

a   divisible     statute   for     purposes      of    its       comparison      with    INA

§ 1101(a)(43)(A),      and     we    may        use    the     modified     categorical

approach to determine which statutory elements formed the basis

of Larios-Reyes’s conviction and whether those elements match

the federal generic definition.

      The Shepard documents show that Larios-Reyes was convicted

under the elements listed in § 3-307(a)(3), “sexual contact with

another if the victim is under the age of 14 years, and the

person performing the sexual contact is at least 4 years older

than the victim.”           The factual basis for Larios-Reyes’s plea

details one instance in which Larios-Reyes asked the victim to

touch his erect penis, which she did for 2-3 minutes, and two

instances    in    which    Larios-Reyes         asked       the   victim    to    perform

fellatio on him, which she did for 2-3 seconds each time.                                A.R.

767-68.     Fellatio is specifically categorized as a “sexual act”

under Maryland law.         See Md. Code Ann., Crim. Law § 3-301(d)(1).

Fellatio could also qualify as “sexual contact,” which Maryland

defines as “an intentional touching of the victim’s or actor’s



      3And it certainly matches the definition that we proceed to
adopt here in Section II.C.



                                           14
genital,   anal,     or   other     intimate    area   for   sexual   arousal    or

gratification, or for the abuse of either party.”                       Id. § 3-

301(e)(1); see Partain v. State, 492 A.2d 669, 672-73 (Md. Ct.

Spec.    App.   1985)     (holding    that     cunnilingus    constitutes     both

“sexual act” and “sexual contact”).               The Shepard documents thus

reveal that an element of Larios-Reyes’s conviction was either

“sexual act” or “sexual contact.”                The Shepard documents also

establish the age elements of the offense.                    Larios-Reyes was

eighteen     years    old,    and     the    victim    was   four     years   old.

Therefore,      Larios-Reyes      necessarily    pleaded     guilty   to   all   of

§ 3-307(a)(3)’s elements, 4 and we affirm the BIA’s finding that

Larios-Reyes was convicted under § 3-307(a)(3).

                                        B.

     Having established that § 3-307 is a divisible statute and

that Larios-Reyes was convicted under § 3-307(a)(3), we now turn

     4 The Shepard documents eliminate § 3-307(a)(4) and (a)(5)
as the basis for the conviction because they both require that
the victim be “14 or 15 years old” and that “the person
performing the sexual act [be] at least 21 years old.” Neither
element is satisfied here, because at the time of the offense,
the victim was four years old and Larios-Reyes was eighteen
years old. The Shepard documents also reveal that Larios-Reyes
was not convicted under § 3-307(a)(1) or (a)(2). The documents
do not indicate that Larios-Reyes engaged in sexual contact with
the victim under any of the aggravating circumstances listed in
§ 3-307(a)(1).   Nor do the documents contain any evidence that
the victim was “a substantially cognitively impaired individual,
a mentally incapacitated individual, or a physically helpless
individual,” as required by § 3-307(a)(2).    Therefore, there is
no factual basis to support the conclusion that Larios-Reyes was
necessarily convicted under any of these subsections.


                                        15
to   whether       § 3-307(a)(3)’s                 elements         categorically          match      the

elements of the generic federal definition of “sexual abuse of a

minor.”      A threshold question that we must answer before we can

compare      these      statutes            is    how   to     define      “sexual       abuse       of   a

minor.”      The INA does not define it, and this Court has not done

so in a published opinion interpreting the INA.                                         Therefore, we

must consider the BIA’s interpretation of this generic federal

offense, because under Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 842–43 (1984), we are required to

defer to the BIA’s precedential interpretation of a “silent or

ambiguous”        statute          so       long     as      that     interpretation            is    not

“arbitrary, capricious, or manifestly contrary to the statute,”

id. at 844.

       Although         the       BIA’s          decision      here       is    not      precedential

because      it    is       unpublished           and   was     issued         by   a   single       Board

member,      it    relied         on    a    precedential           BIA    decision,        Esquivel-

Quintana.          We therefore must determine whether that decision

warrants deference.                See Hernandez v. Holder, 783 F.3d 189, 192

(4th Cir. 2015).

       The     BIA          in    Esquivel-Quintana                 considered          whether        the

California         offense         of       “unlawful          intercourse          with    a    minor”

categorically constitutes “sexual abuse of a minor” under the

INA.      26      I.    &    N.    Dec.      469.         In    concluding          that   it    was      a

categorical match, the BIA did not adopt a definition of the

                                                     16
federal     offense     to    which       we    might    defer     here.           Instead,        it

relied    on    the     interpretive            framework       set     forth        in      In    re

Rodriguez–Rodriguez, 22 I. & N. Dec. 991, 996 (B.I.A. 1999).

Esquivel-Quintana, 26 I. & N. Dec. at 470-71.                           We therefore must

consider that framework.

     In     Rodriguez–Rodriguez,                the     BIA     looked        to     18      U.S.C.

§ 3509(a)(8)--a statute that provides procedural protections for

child victims and witnesses and that lists crimes constituting

“sexual abuse”--and determined that it might serve “as a guide

in identifying the types of crimes [the BIA] would consider to

be sexual abuse of a minor.” 5                   Rodriguez–Rodriguez, 22 I. & N.

Dec. at 996.        The BIA expressly stated that it was “not adopting

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

purposes of § 1101(a)(43)(A) of the INA.                         Id.     For that reason,

we   held      in   Amos      v.     Lynch       that     there        was     no        statutory

interpretation        to     which    to       defer    under     Chevron          and    that     18

U.S.C.    § 3509(a)(8)            might    provide       guidance       but    was        not     the

“interpretive         touchstone”          for       determining        whether          a    state




     5 Under 18 U.S.C. § 3509(a)(8), “the term ‘sexual abuse’
includes   the    employment,   use,    persuasion, inducement,
enticement, or coercion of a child to engage in, or assist
another person to engage in, sexually explicit conduct or the
rape, molestation, prostitution, or other form of sexual
exploitation of children, or incest with children.”


                                                17
conviction qualifies as a removable offense. 6   790 F.3d at 519-

20.   We also pointed out that because § 3509(a)(8) “includ[es]

‘a broad range of maltreatment of a sexual nature,’” it “does

not clarify the scope of the generic federal crime” of “sexual

abuse of a minor.”   Id. at 522 (quoting Rodriguez-Rodriguez, 22

I. & N. Dec. at 996).   Accordingly, we cast serious doubt on the

usefulness of Rodriguez-Rodriguez’s interpretive approach.

      In Esquivel-Quintana, the BIA relied on Rodriguez-Rodriguez

to support its conclusion and did not adopt a definition of the

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

Quintana, 26 I. & N. Dec. at 470-71.      Therefore, we need not

      6The Ninth and Tenth Circuits have similarly declined to
give Chevron deference to Rodriguez-Rodriguez.   Rangel-Perez v.
Lynch, 816 F.3d 591, 598-99 (10th Cir. 2016) (citing Amos and
agreeing that “Rodriguez-Rodriguez . . . did not establish 18
U.S.C. § 3509(a) as the exclusive touchstone for defining the
elements of the INA’s ‘sexual abuse of a minor’ category of
‘aggravated’ felonies”); Estrada-Espinoza v. Mukasey, 546 F.3d
1147, 1157 (9th Cir. 2008) (en banc), overruled on other grounds
by United States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir.
2011) (en banc) (per curiam), abrogated by Descamps, 133 S. Ct.
2276 (“Chevron deference does not apply in these circumstances
because Rodriguez–Rodriguez did not interpret a statute within
the meaning of Chevron, but only provided a ‘guide’ for later
interpretation.”).

     We acknowledge that three of our sister circuits have held
that Rodriguez-Rodriguez adopted § 3509(a) as the definition of
“sexual abuse of a minor” under the INA.    See Velasco–Giron v.
Holder, 773 F.3d 774, 776 (7th Cir. 2014), cert. denied sub nom.
Velasco–Giron v. Lynch, 135 S. Ct. 2072 (2015); Restrepo v.
Attorney Gen., 617 F.3d 787, 792, 795–96 (3d Cir. 2010); Mugalli
v. Ashcroft, 258 F.3d 52, 58–59 (2d Cir. 2001).       But as we
stated in Amos, we respectfully disagree with these circuits’
decisions. 790 F.3d at 519.


                                18
give Chevron deference to Esquivel-Quintana for the same reason

we declined to give it to Rodriguez–Rodriguez:                     the BIA did not

adopt a federal generic definition of “sexual abuse of a minor.”

Indeed, the Sixth Circuit confirmed that the BIA’s approach is

“to interpret [‘sexual abuse of a minor’] through case-by-case

adjudication.”       Esquivel-Quintana, 810 F.3d at 1026.

      In sum, the BIA here issued a nonprecedential decision to

which we need not defer.                The BIA did rely on a precedential

decision, Esquivel-Quintana, that might guide our review, but we

already held in Amos that this approach is not due any Chevron

deference.         Therefore,      we   are      not   required   to   give   Chevron

deference     to    either   the    BIA’s        opinion   here   or   to   Esquivel-

Quintana. 7

      We are thus left to consider the BIA’s determination that

§ 3-307(a)(3) constitutes “sexual abuse of a minor” under the

INA using the principles outlined in Skidmore v. Swift & Co.,

323   U.S.    134    (1944).        Under     the      Skidmore   framework,    which

prescribes a more modest amount of deference, “we may defer to



      7The BIA’s other findings in Esquivel-Quintana are entitled
to Chevron deference, but they do not concern the issue here.
These include that (1) the generic federal offense of “sexual
abuse of a minor” requires a meaningful age difference between
the victim and the perpetrator, and (2) California Penal Code
§ 261.5(c) categorically constitutes “sexual abuse of a minor”
under § 1101(a)(43)(A) of the INA.    Esquivel-Quintana, 26 I. &
N. Dec. at 477.



                                            19
the agency’s opinion, based on the agency’s ‘body of experience

and informed judgment,’” but “the degree of deference that we

accord depends on our consideration of the persuasiveness of the

BIA’s analysis as demonstrated by its thoroughness, validity of

reasoning, and consistency with other decisions.”                  Amos, 790

F.3d at 521 (quoting Skidmore, 323 U.S. at 140).

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

could   answer     the   question   whether    a   conviction    under       § 3-

307(a)(3) constitutes the aggravated felony of “sexual abuse of

a   minor,”   it   had   to   compare   § 3-307(a)(3)’s     elements    to    the

elements of the federal offense.              But here, the BIA did not

establish the elements of the federal offense.              In fact, it did

not even explain what federal definition it was using.                 Instead,

the BIA compared § 3-307(a)(3)’s elements to the elements of a

California statute that was found to constitute “sexual abuse of

a minor.”

      This approach is problematic for two reasons.               First, the

California statute was found to be a categorical match using the

Rodriguez-Rodriguez framework, which we have held is neither due

any   deference    nor   is   particularly    useful   as   an   interpretive

tool.    See Amos, 790 F.3d at 521-22.             And second, the Supreme

Court has made clear that the categorical approach requires a

comparison of the elements of the state statute of conviction to

the elements of the generic federal offense, see Moncrieffe, 133

                                        20
S. Ct. at 1684, not to the elements of another state’s statute

of conviction.              By attempting to fit § 3-307(a)(3) within the

elements         of    a    California        statute,      the       BIA   essentially        used

California            law   to     determine         whether      a     Maryland        conviction

constituted a removable offense under federal law.

        Even if this type of statutory comparison was a reasonable

way     to       determine       whether      § 3-307(a)(3)            matches      the   generic

federal definition of “sexual abuse of a minor,” the BIA erred

in    its    analysis.            It       failed    to   determine         what    conduct      the

California statute encompassed and whether that conduct was also

proscribed by § 3-307(a)(3).                    Had the BIA done so, it might have

seen its mistake.

       The BIA concluded that because the “offense [in Esquivel-

Quintana] with the elements of ‘(1) unlawful sexual intercourse

(2) with a minor under 18 years old (3) who is more than 3 years

younger than the perpetrator’ categorically constitutes sexual

abuse       of    a    minor,”      then      § 3-307(a)(3),           which     “include[s]       a

younger          victim      and       a     greater       age        difference        than     the

corresponding           elements       in    the     statute     at     issue      in   Matter    of

Esquivel-Quintana,” also constitutes “sexual abuse of a minor”

under the INA.              A.R. 4-5.          The BIA held this “notwithstanding

that    the       ‘sexual        contact’      proscribed        by     [§ 3-307(a)(3)]          may

potentially            be    less      egregious          than    the       ‘unlawful      sexual

intercourse’” in Esquivel-Quintana.                        Id. at 5.         This is entirely

                                                    21
incorrect.         That § 3-307(a)(3) criminalizes “potentially . . .

less egregious” conduct than the California statute in Esquivel-

Quintana is precisely the reason that the California statute has

no    utility      as   a   comparator--and          in    fact   suggests       that   § 3-

307(a)(3) is more likely not to constitute the generic federal

offense.

       Ultimately, we conclude that the BIA’s decision on this

question      is    not     entitled       to    Skidmore    deference.          While    we

recognize that the agency has a wealth of immigration expertise,

we find that the BIA was neither thorough in its analysis, valid

in its reasoning, nor consistent with precedent in the BIA or

the Fourth Circuit.              See Amos, 790 F.3d at 521 (citing Skidmore,

323 U.S. at 140).                Accordingly, we proceed to consider this

question      of    law     de     novo,        without    deferring      to   the      BIA’s

determinations in this case.

                                                C.

       We begin by defining “sexual abuse of a minor.”                            We agree

with the petitioner that this Court has already established a

generic federal definition of “sexual abuse of a minor” in the

sentencing context and that the definition is equally applicable

here.    In United States v. Diaz-Ibarra, we defined “sexual abuse

of a minor” for purposes of applying the Sentencing Guidelines.

522    F.3d   343       (4th   Cir.    2008).         We    looked   to    the    Eleventh

Circuit’s reasoning in United States v. Padilla-Reyes, 247 F.3d

                                                22
1158 (11th Cir. 2001), an immigration case, and we adopted that

court’s definition wholesale.                See Diaz-Ibarra, 522 F.3d at 351-

52.

       In Padilla-Reyes, the court looked to the common meaning of

the phrase “sexual abuse of a minor.”                     247 F.3d at 1163-64.            It

determined       that   it    made   more     sense      to    consider      the    phrase’s

plain meaning than to cross-reference other federal statutes,

because “where Congress intended an aggravated felony subsection

to depend on federal statutory law it explicitly included the

statutory       cross-reference,”       and       so    “the    lack    of   an     explicit

statutory reference in the § 1101(a)(43)(A) subsection indicates

Congress’s intent to rely on the plain meaning of the terms.”

Id. at 1164.

       The     Padilla-Reyes         court     explained         that      “[a]mong      the

relevant       definitions     for   abuse,       Webster’s      includes         ‘misuse[;]

. . . to use or treat so as to injure, hurt, or damage[;] . . .

to    commit    indecent      assault    on[;]         . . .   the   act     of    violating

sexually[;] . . . [and] rape or indecent assault not amounting

to rape.’”        Id. at 1163.          And “for sexual, Webster’s includes

‘of    or    relating    to    the    sphere       of    behavior       associated     with

libidinal gratification.’”              Id.       The court concluded that “the

word ‘sexual’ in the phrase ‘sexual abuse of a minor’ indicates

that the perpetrator’s intent in committing the abuse is to seek

libidinal gratification,” and that the common understanding of

                                             23
“abuse” in this context is that it does not require physical

contact.          Id.        The court therefore concluded that “the phrase

‘sexual      abuse       of    a    minor’       means      a    perpetrator’s               physical    or

nonphysical        misuse          or   maltreatment            of    a    minor        for   a   purpose

associated with sexual gratification.”                               Id.

       Significantly,               the        Eleventh         Circuit          in      Padilla-Reyes

crafted      the       definition         of    “sexual         abuse      of     a    minor”     in    the

immigration         context--under              § 1101(a)(43)(A)                 of    the    INA.       In

Diaz-Ibarra,            we    held      that     the       Padilla-Reyes              definition       also

applies      to    “sexual          abuse       of     a    minor”         under       the    Sentencing

Guidelines.            522 F.3d at 351-52.                  In doing so, we implied that

the federal generic definition of “sexual abuse of a minor” is

the same in the sentencing and immigration contexts.

       This       is     further          confirmed         by       the     Commentary           to    the

Sentencing Guidelines in effect at the time, which stated that

“aggravated felony” under the Guidelines “has the meaning given

that       term    in        section       101(a)(43)            of        the        Immigration       and

Nationality         Act       (8    U.S.C.       § 1101(a)(43)).”                     U.S.    Sentencing

Guidelines Manual § 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n

2007). 8      Because the crime is the same under the Sentencing

Guidelines and the INA, the definition of “sexual abuse of a


       8The current Commentary to the Sentencing Guidelines
retains this language.    See U.S. Sentencing Guidelines Manual
§ 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n 2015).


                                                     24
minor” adopted by this Court in the sentencing context is also

applicable in the immigration context. 9                 And this makes sense,

because the utility of a “generic” definition is that it applies

in different contexts.           To find otherwise would mean “sexual

abuse of a minor” has multiple “generic” federal definitions, an

outcome      that   ordinarily   will   contravene       both   the   categorical

approach’s governing principles and common sense.

       We now hold that the generic federal definition of “sexual

abuse of a minor” set forth in Diaz-Ibarra is applicable to the

INA.       Therefore, under the INA, “‘sexual abuse of a minor’ means

the        ‘perpetrator’s    physical        or    nonphysical        misuse     or

maltreatment of a minor for a purpose associated with sexual

gratification.’”       Diaz-Ibarra, 522 F.3d at 352 (quoting Padilla-

Reyes, 247 F.3d at 1163).         And because we now have a definition

of    the    federal   generic   offense,     we   can    determine    whether    a

       9
       The Fifth Circuit has made a similar observation in an
unpublished opinion.   See Ramos-Garcia v. Holder, 483 F. App’x
926, 929 n.14 (5th Cir. 2012) (acknowledging that “[m]ost of the
cases discussing the definition of ‘sexual abuse of a minor’
under § 1101(a)(43) do so in a sentencing rather than an
immigration context,” but noting that it could find “no reason
. . . why those cases are not applicable [to the INA] for
purposes of determining the generic meaning of ‘sexual abuse of
a minor’ under the same statutory provision”).       And in two
unpublished opinions, we have applied the Diaz-Ibarra definition
to “sexual abuse of a minor” under the INA.        See Waffi v.
Mukasey, 285 F. App’x 26, 27 (4th Cir. 2008) (using Diaz-
Ibarra’s definition of “sexual abuse of a minor” to determine
whether the statute at issue categorically matched the offense
under the INA); Alvarado v. Holder, 398 F. App’x 942, 943 (4th
Cir. 2010) (same).


                                        25
conviction under § 3-307(a)(3) categorically qualifies as that

federal offense.

                                           D.

       We reiterate that at this step in the analysis, our task is

to compare statutory elements only.                   We do not consider whether

Larios-Reyes’s        actual     conduct     constitutes      “sexual       abuse       of    a

minor”; we ask only whether § 3-307(a)(3) matches the generic

federal definition.          Shepard documents serve the limited purpose

of clarifying which element or set of elements create the basis

for the conviction.          They have no role to play in our subsequent

comparison of that portion of the statute to the generic federal

offense.     Accordingly, we now turn to consider the scope of § 3-

307(a)(3)’s elements.

       Under Maryland law, “‘sexual contact,’ as used in [§] 3-

307[(a)(3)]       . . . ,       means   an      intentional         touching       of    the

victim’s or actor’s genital, anal, or other intimate area for

sexual    arousal     or   gratification,        or    for    the    abuse    of    either

party.”         Md.   Code      Ann.,   Crim.    Law    § 3-301(e)(1)          (emphasis

added).      “Sexual contact” is defined in the disjunctive, meaning

that there are multiple ways to accomplish it.                           Maryland courts

have held that the State need not show that a defendant acted

for    the      purpose    of    sexual      gratification          in    order     to       be

convicted, because acting for such a purpose is just one of the

ways     that     a   defendant’s       conduct       might    constitute          “sexual

                                           26
contact.”        See, e.g., Dillsworth v. State, 503 A.2d 734, 737

(Md.    Ct.    Spec.    App.     1986),       aff’d,      519    A.2d    1269    (Md.    1987)

(rejecting          defendant’s       argument       that       his     conduct    did       not

constitute “sexual contact” because there was no evidence that

he acted for the purpose of “sexual arousal or gratification,”

and    stating       that   “[t]o     include       the    necessity      to    show    sexual

arousal or gratification as a requisite of ‘abuse’ would be to

require an unnecessary redundancy--to use the words ‘for abuse’

in vain”).          A showing that a defendant acted with the intent to

abuse could also sustain a conviction.

       The    Maryland        Court    of     Special       Appeals      has     interpreted

“abuse” in § 3-307 as not limited to “a physical attack intended

to inflict sexual injury.”                  LaPin v. State, 981 A.2d 34, 43 (Md.

Ct. Spec. App. 2009).                Rather, “a touching for the purpose of

‘abuse’       [under     § 3-307]          refers    to     a    wrongful       touching,      a

touching of another person’s intimate area for a purpose that is

harmful, injurious or offensive.”                      Id.       The Maryland Court of

Appeals       has     further     recognized         that       “the    buttocks       are    an

intimate       area     within       the     meaning      of     [§] 3–301[],”         finding

specifically that “[t]he touching of the buttocks is therefore

proscribed by [§] 3–307(a)(3).”                     Bible v. State, 982 A.2d 348,

358 (Md. 2009).             Hence, a conviction could be sustained under

§ 3-307(a)(3)         based     on    an    adult’s       intentional      touching      of    a

minor’s buttocks for a “harmful, injurious or offensive”--but

                                               27
not sexually gratifying--purpose.           See Alfaro, 835 F.3d at 473

n.1 (recognizing this interpretation of “sexual contact” as used

in § 3-307).

     Under the federal generic definition of “sexual abuse of a

minor,” acting for the purpose of sexual gratification is an

element of the offense.          Indeed, in Alfaro, we emphasized that

“sexual   abuse   of   a   minor”   as    defined    in   Diaz-Ibarra    “is   a

‘broad’ phrase ‘capturing physical or nonphysical conduct,’ and

it is the sexual-gratification element that polices the line

between lawful and unlawful conduct.”               Alfaro, 835 F.3d at 476

(quoting United States v. Perez–Perez, 737 F.3d 950, 953 (4th

Cir. 2013)) (citation omitted).            We went on, “[T]he intent to

gratify sexual urges is central to the offense of sexual abuse

of a minor . . . and therefore is part of the ordinary meaning

of the phrase ‘sexual abuse.’”        Id. at 476-77.

     In Maryland, a perpetrator need not act for the purpose of

sexual    gratification     in   order    to   be    convicted   under    § 3-

307(a)(3).     Acting for the purpose of abuse is enough.                  And

Maryland’s appellate courts have interpreted “abuse” to include

much more conduct than what the INA criminalizes.                 Because we

are constrained by Maryland’s interpretation of the scope of its

own laws, see Castillo, 776 F.3d at 268, we find that § 3-

307(a)(3) is broader than the federal generic offense of “sexual

abuse of a minor.”         Accordingly, we hold that a conviction for

                                     28
“Third Degree Sex Offense” under Maryland Criminal Law Article

§ 3-307(a)(3)    does   not   constitute   the   aggravated   felony   of

“sexual abuse of a minor” under § 1101(a)(43)(A) of the INA.



                                  III.

     The BIA erred as a matter of law in finding that Larios-

Reyes’s conviction under Maryland Criminal Law Article § 3-307

constitutes the aggravated felony of “sexual abuse of a minor”

under the INA.     We therefore grant Larios-Reyes’s petition for

review, vacate the order of removal, and order his immediate

release from DHS Custody.

                                            PETITION FOR REVIEW GRANTED
                                           AND ORDER OF REMOVAL VACATED




                                   29
