                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-3742
                                       ___________

                            JACKSON NJAGA NGARUIYA,
                                              Petitioner

                                             v.

                           ATTORNEY GENERAL OF THE
                           UNITED STATES OF AMERICA,
                                                 Respondent
                       ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A058-030-954)
                    Immigration Judge: Honorable Walter A. Durling
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 20, 2015

          Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

                                (Filed: February 20, 2015)
                                       ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Petitioner Jackson Njaga Ngaruiya petitions for review of the final order of

removal of the Board of Immigration Appeals (“BIA” or “Board”) dismissing his appeal

from a removal order entered by an Immigration Judge (“IJ”). For the reasons discussed

below, we will deny the petition for review.

       Petitioner, a native and citizen of Kenya, entered the United States in 2006 as a

lawful permanent resident. In 2011, he was convicted of: (1) indecent assault of a person

less than sixteen years old, in violation of 18 Pa. Cons. Stat. § 3126(a)(8); and (2)

indecent assault without consent, in violation of 18 Pa. Cons. Stat. § 3126(a)(1).

Thereafter, the Department of Homeland Security (DHS) charged Petitioner as removable

for having been convicted of an aggravated felony (namely, the sexual abuse of a minor),

see 8 U.S.C. § 1227(a)(2)(A)(iii); see also 8 U.S.C. § 1101(a)(43)(A) (providing that the

“sexual abuse of a minor” qualifies as an “aggravated felony”).1 The DHS also charged

Petitioner with removability for having been convicted of a crime involving moral

turpitude, see 8 U.S.C. § 1227(a)(2)(A)(i). At an administrative hearing, Petitioner

argued before the IJ that he had not been convicted of an aggravated felony and thus

should not be ordered removed on that basis. He did not contest the moral turpitude

charge.


1
 In Restrepo v. Att’y Gen., 617 F.3d 787, 796 (3d Cir. 2010), we concluded that 18
U.S.C. § 3509(a) was an appropriate guidepost for the definition of “sexual abuse of a
minor.” That section defines “sexual abuse” to include “the . . . use . . . of a child to
engage in . . . sexually explicit conduct or the rape, molestation, prostitution, or other
form of sexual exploitation of children . . . .” 18 U.S.C. § 3509(a)(8).

                                               2
       In March 2014, the IJ ruled that Petitioner’s conviction for indecent assault of a

person less than sixteen years old qualified as sexual abuse of a minor and, therefore, as

an aggravated felony. He then ordered that Petitioner be removed to Kenya. In an

August 2014 order, the BIA dismissed Petitioner’s administrative appeal, upholding the

IJ’s determination that Petitioner’s conviction under 18 Pa. Cons. Stat. § 3126(a)(8)2

qualifies categorically as molestation or sexual exploitation of a child under 18 U.S.C.

§ 3509(a)(8) and, by extension, sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A).

The Board determined that Petitioner’s arguments to the contrary had been foreclosed by

our recent decision in Cadapan v. Attorney General of the United States, 749 F.3d 157,

161 (3d Cir. 2014). This petition for review followed.

       Our jurisdiction is circumscribed because Petitioner is removable for having been

convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). However, we can

consider the jurisdictional prerequisite whether the alien’s conviction constitutes an

aggravated felony, and we can also hear “constitutional claims and questions of law” (but

not factual challenges) even if presented by an alien convicted of an aggravated felony.


2
  18 Pa. Cons. Stat. § 3126(a)(8) provides: “A person is guilty of indecent assault if the
person has indecent contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the
person or the complainant and the complainant is less than 16 years of age and the person
is four or more years older than the complainant and the complainant and the person are
not married to each other.” Indecent contact is defined as “[a]ny touching of the sexual
or other intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa. Cons. Stat. § 3101.

                                             3
Restrepo, 617 F.3d at 790. As he did before the Board, Petitioner argues here that his

Pennsylvania indecent assault conviction does not qualify as an aggravated felony under

the Immigration and Nationality Act (“INA”).3 We agree with the BIA that his

arguments in support of that contention are foreclosed by our decision in Cadapan.

       In Cadapan, we determined that a conviction of indecent assault under 18 Pa.

Cons. Stat. § 3126(a)(7)4 is subject to the “categorical approach” of analysis.5 749 F.3d

at 159. We further determined that the Pennsylvania statute categorically constitutes the

aggravated felony of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) because

all of the conduct criminalized by the statute meets the definition of “sexual abuse” in 18

U.S.C. § 3509(a)(8), which the BIA reasonably uses as a reference point for interpreting

“sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A). Id. at 160-61. In so holding,

we rejected one of the arguments that Petitioner raises on appeal—that because 18 Pa.


3
 In his brief, Petitioner asserts that he was convicted under 18 Pa. Cons. Stat.
§ 3126(a)(7). However, the record of conviction demonstrates that he was, in fact,
convicted under 18 Pa. Cons. Stat. § 3126(a)(8).
4
 The only difference between § 3126(a)(7) and § 3126(a)(8) (under which Petitioner was
convicted) is that the former criminalizes indecent assault against minors under thirteen-
years-old, and the latter criminalizes the same behavior against minors under sixteen-
years-old (when the perpetrator is four or more years older and not married to the minor).
The provisions are otherwise the same.
5
 The categorical approach precludes review of the factual basis for the underlying
conviction. See Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004); see also Taylor
v. United States, 495 U.S. 575, 600-02 (1990). Instead, we consider whether the least
culpable conduct necessary to sustain a conviction under the statute satisfies the
definition of the applicable INA provision. See Partyka v. Att’y Gen., 417 F.3d 408, 411
(3d Cir. 2005).
                                            4
Cons. Stat. § 3126 is a divisible statute, it should be analyzed under the “modified

categorical approach” of analysis, rather than the categorical approach.6 In Cadapan, we

concluded that that even though Pennsylvania’s indecent assault statute is divisible, it

should not be analyzed under the modified categorical approach because “all of the

conduct covered by the statute constitutes sexual abuse of a minor.” Id. at 161 n. 4

(citing United States v. Jones, 740 F.3d 127, 134 (3d. Cr. 2014) as holding that the

modified categorical approach is only appropriate where a divisible state statute

proscribes some conduct that falls under umbrella of federal statute and some that does

not). Petitioner has not provided us with any reason to disturb that ruling.

       Petitioner also argues that the Board erred in determining that his indecent assault

conviction constituted an aggravated felony because the “mere touching” of a minor

should not qualify as sexual abuse. However, as mentioned, in Cadapan we determined

that that all conduct covered by Pennsylvania’s indecent assault statute categorically

constitutes “molestation” or “sexual exploitation” of a child within the meaning of 18

U.S.C. § 3509(a)(8) and, by extension, “sexual abuse of a minor” under 8 U.S.C.

§ 1101(a)(43)(A). 749 F.3d at 161. Petitioner’s argument is therefore unavailing.



6
 If a statute of conviction lists elements in the alternative, some of which fit the federal
definition and some of which do not, courts apply the modified categorical approach and
are permitted “to consult a limited class of documents . . . to determine which alternative
formed the basis of the defendant’s prior conviction.” Descamps v. United States, 133 S.
Ct. 2276, 2279 (2013); see also United States v. Brown, 765 F.3d 185, 188–91 (3d Cir.
2014) (discussing operation of the categorical and modified categorical approach in light
of Descamps).
                                               5
      Based on the above, the BIA correctly determined that Petitioner’s conviction for

indecent assault qualifies as sexual abuse of a minor and thus rendered him a removable

alien based on an aggravated felony. We will therefore deny the petition for review.




                                            6
