                                  UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-2287


HECTOR REYMUNDO HENRIQUEZ DIMAS,

            Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General,

            Respondent.


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


Argued: September 25, 2018                                 Decided: October 18, 2018


Before MOTZ, DUNCAN, and THACKER, Circuit Judges.


Petition for review granted and remanded for further proceedings by unpublished
opinion. Judge Duncan wrote the opinion, in which Judge Motz and Judge Thacker
concurred.


ARGUED: Elana Nightingale Dawson, LATHAM & WATKINS LLP, Washington,
D.C., for Petitioner. Lindsay Corliss, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Eric Harris Singer, LAW OFFICE OF
ERIC SINGER, LLC, Bethesda, Maryland; Adam J. Tuetken, LATHAM & WATKINS
LLP, Washington, D.C., for Petitioner. Chad A. Readler, Acting Assistant Attorney
General, John S. Hogan, Assistant Director, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.




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DUNCAN, Circuit Judge:

      After pleading guilty to second-degree assault and a fourth-degree sexual offense,

Hector Henriquez Dimas (“Henriquez”)--a native of El Salvador who entered the United

States as a lawful permanent resident in 2011--was subjected to removal proceedings.

The basis for Henriquez’s removal, according to the Department of Homeland Security

(the “DHS”), was that the relevant fourth-degree sexual offense is categorically a crime

involving moral turpitude (“CIMT”). The immigration judge (the “IJ”) agreed, and the

Board of Immigration Appeals (the “BIA”) affirmed, issuing its own opinion as to why

the offense constitutes a CIMT. For the reasons that follow, the BIA’s ruling was

erroneous, and we therefore grant Henriquez’s petition for review, vacate the order of

removal, and remand for further proceedings consistent with this opinion.



                                            I.

      In April 2016, Henriquez was arrested on second-degree rape charges after it was

reported that Henriquez, who was twenty years old at the time, had sexual intercourse

with a thirteen-year-old. Henriquez subsequently pleaded guilty to second-degree assault

and a fourth-degree sexual offense--specifically, “sexual contact with another without the

consent of the other.” Md. Code Ann., Crim. Law § 3-308(b)(1) (“Section 3-308(b)(1)”).

The DHS sought Henriquez’s removal from the United States as an alien convicted of a




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CIMT under the Immigration and Nationality Act (the “INA”) in February 2017. 1

       Henriquez challenged, inter alia, whether his conviction of a fourth-degree sexual

offense qualifies as a CIMT. The IJ determined that it does and ordered him removed,

reasoning that pursuant to In re Jimenez-Cedillo, Henriquez’s conviction is a CIMT

because “the subsection at issue[,] . . . sex offense in the fourth degree in this case, does

not differ materially from the subsection at issue in sex offense in the third degree at issue

in Jimenez-Cedillo.” J.A. 280 (citing In re Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017)).

Henriquez appealed, and the BIA affirmed the IJ’s removal order. In its opinion, the BIA

also relied on In re Jimenez-Cedillo for the principle that “offenses that necessarily

involve sexual contact with a victim whose lack of consent is either explicit or implicit

[like Maryland fourth degree sexual offense] are turpitudinous” and that the lack of a

mens rea requirement in the statute with respect to consent did not bar a finding that the

offense was a CIMT. J.A. 4 (citing In re Jimenez-Cedillo, 27 I&N Dec. at 4). Henriquez

petitioned this court for review.

       After initial briefing but before Henriquez filed his reply brief, this court held that

the BIA erred in In re Jimenez-Cedillo. Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th

Cir. 2018). In In re Jimenez-Cedillo, the BIA held that a strict liability crime involving


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        The DHS first initiated removal proceedings against Henriquez on the basis that
he had violated Md. Code Ann., Crim. Law § 3-308(b)(2), which prohibits sexual acts
with a fourteen- or fifteen-year-old where the perpetrator is at least four years older.
Finding that Henriquez had not been convicted under Section 3-308(b)(2), the IJ
terminated those proceedings on February 16, 2017. The DHS initiated the instant
removal proceedings immediately thereafter.


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intentional sexual contact with a minor qualified as a CIMT, regardless of whether the

underlying crime required proof that the perpetrator knew or should have known the

victim’s age. See In re Jimenez-Cedillo, 27 I&N Dec. at 1, 7. This represented a reversal

in BIA policy; previously, a crime only qualified as a CIMT if it involved mental

culpability as to the victim’s age. See Jimenez-Cedillo, 885 F.3d at 298 (summarizing the

prior rule). Finding that the BIA had “failed to explain its change in position,” this court

granted Jimenez-Cedillo’s petition for review and remanded the matter to the BIA. Id. at

294.



                                            II.

       The question before the court is whether the BIA erred in its opinion concluding

that Section 3-308(b)(1) is categorically a CIMT.        We review de novo whether a

particular offense qualifies as a CIMT under the INA. Sotnikau v. Lynch, 846 F.3d 731,

735 (4th Cir. 2017). However, in doing so, “[w]e may affirm the BIA only on the

grounds stated in the opinion and may not substitute what we consider to be ‘a more

adequate or proper basis’ for its conclusions.” Oliva v. Lynch, 807 F.3d 53, 57 (4th Cir.

2015) (internal citation omitted); see generally SEC v. Chenery Corp., 332 U.S. 194, 196

(1947) (“[A] reviewing court, in dealing with a determination or judgment which an

administrative agency alone is authorized to make, must judge the propriety of such

action solely by the grounds invoked by the agency.”).




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                                             III.

       The INA authorizes removal of an alien who is convicted of a CIMT within five

years of his or her admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(i). The two

essential elements of a CIMT are a culpable mental state and reprehensible conduct. See

Sotnikau, 846 F.3d at 736. To satisfy the mens rea requirement, “the crime must have, as

an element, an intent to achieve an immoral result or willful disregard of an inherent and

substantial risk that an immoral act will occur.” Ramirez v. Sessions, 887 F.3d 693, 704

(4th Cir. 2018). To satisfy the actus reus requirement, the crime “must involve conduct

that not only violates a statute but also independently violates a moral norm.” Sotnikau,

846 F.3d at 736 (internal quotation marks and citations omitted).

       Because the BIA in this case relied on In re Jimenez-Cedillo’s holding, which we

have since determined was error, we cannot affirm the BIA’s order on the grounds stated

in its opinion. See Chenery, 332 U.S. at 196; Oliva, 807 F.3d at 57. In its opinion, the

BIA cited In re Jimenez-Cedillo to conclude that Section 3-308(b)(1) is categorically a

CIMT, reasoning that “offenses that necessarily involve sexual contact with a victim

whose lack of consent is either explicit or implicit are turpitudinous.” J.A. 4 (citing In re

Jimenez-Cedillo, 27 I&N Dec. at 4) (emphasis added). The BIA also cited In re Jimenez-

Cedillo for the proposition that “it is not dispositive that the statute does not also include

an explicit mens rea with respect to the lack of consent element.” Id. Instead, the BIA

determined that where the statute provides that the actus reus be done intentionally and

without consent of the victim, a “sufficiently culpable mental state is involved.” J.A. 4

(citing In re Jimenez-Cedillo, 27 I&N Dec. at 5). Because the BIA relied on In re

                                              6
Jimenez-Cedillo to conclude that the lack of a mens rea requirement as to lack of consent

was not dispositive as to whether the crime constitutes a CIMT, the opinion as written

cannot stand.

       Remand is also appropriate because the BIA was not presented with, and so did

not address, the government’s argument on appeal: that lack of consent under Section 3-

308(b)(1) requires that “the prosecution must establish that the victim either expressly

resisted the contact or submitted ‘to a compelling force, or as a result of being put in

fear.’” Appellee’s Br. at 10. Unlike the strict liability statute in In re Jimenez-Cedillo,

Section 3-308(b)(1), the government argues, requires both a lack of consent by the victim

and a culpable mental state as to that lack of consent by the perpetrator, which together

renders the conduct turpitudinous. Id. at 25–26. We acknowledge that the BIA correctly

assessed, in dicta, that the victim’s lack of consent must be proven as an element to

obtain a conviction under Section 3-308(b)(1). J.A. 4; see Perez v. State, 29 A.3d 656,

659 (Md. Ct. Spec. App. 2011) (requiring that the jury find that the state prove “that the

sexual . . . contact was made against the will and without consent of [the victim].”); see

also Travis v. State, 98 A.3d 281, 292 (Md. Ct. Spec. App. 2014) (“[T]he proof of lack of

consent [for purposes of Section 3-308(b)(1)] must be factually ad hoc.”). Indeed, the

appellate court has upheld an acquittal of a fourth-degree sex offense where the lack of

consent was established solely on the basis that the victim was legally unable to consent.

See Travis, 98 A.3d at 315 (holding that a jury verdict acquitting a defendant of a fourth-

degree offense but convicting him of a third-degree offense was not fatally inconsistent

where the victim was asleep).

                                            7
       Nonetheless, this court remains “powerless to affirm the administrative action by

substituting what it considers to be a more adequate or proper basis.” Chenery, 332 U.S.

at 196. Remand is therefore proper. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002)

(“A court of appeals is not generally empowered to conduct a de novo inquiry into the

matter being reviewed and to reach its own conclusions based on such an inquiry.

Rather, the proper course, except in rare circumstances, is to remand to the agency for

additional investigation or explanation.”) (internal quotation marks and citations

omitted).



                                            IV.

       For the foregoing reasons, we grant Henriquez’s petition for review and remand

the case to the BIA for further proceedings consistent with this opinion.

                                                PETITION FOR REVIEW GRANTED;
                                          REMANDED FOR FURTHER PROCEEDINGS




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