                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-2165
                                    _____________

                               ALEJANDRO BONTIA,

                                                     Appellant

                                           v.

        UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,


                                   _______________

                   On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No. 2-11-cv-01739)
                   District Judge: Honorable Dennis M. Cavanaugh
                                    _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 31, 2013

               Before: JORDAN and VANASKIE, Circuit Judges, and
                         RAKOFF*, Senior District Judge.

                                 (Filed: June 20, 2013)
                                   _______________


_______________
       * The Honorable Jed S. Rakoff, United States Senior District Judge for the United
States District Court for the Southern District of New York, sitting by designation.
                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Alejandro Bontia appeals an order of the United States District Court for the

District of New Jersey dismissing his complaint. He is challenging the denial by the

United States Citizenship and Immigration Service (“USCIS”) of his application for

naturalization. USCIS denied his application because it determined that he lacked good

moral character as a result of his 1992 conviction in New Jersey for criminal sexual

contact with a minor. The District Court granted USCIS‟s motion to dismiss, holding

that Bontia was statutorily ineligible for relief. For the following reasons, we will affirm.

I.     Background

       Bontia, a citizen and native of the Philippines, is a lawful permanent resident of

the United States living in New Jersey. In 1992, he pled guilty to a charge of “criminal

sexual contact” with a minor, in violation of N.J. Stat. Ann. § 2C:14-3b. The charging

instrument stated that Bontia “intentionally caus[ed] the victim,” who was the thirteen-

year-old daughter of Bontia‟s landlady, to “touch [his] penis …, for the purpose of

degrading or humiliating the victim or to sexually arouse or sexually gratify the actor

… .” (App. at 30.) In his plea colloquy, Bontia, who was twenty-five years old at the

time, admitted that he allowed the victim to touch his “crotch area.” (App. at 40.) He

stated that, although he did not “instruct” the victim to touch him, he was sexually

aroused by her, he returned her kisses, and he did nothing to stop her touching. (App. at

39-40.)


                                              2
       In December 2009, Bontia filed an application for naturalization. USCIS denied

the application because it concluded that Bontia‟s 1992 conviction constituted an

aggravated felony, rendering him statutorily unable to demonstrate that he is a person of

“good moral character,” a prerequisite for naturalization under 8 U.S.C. § 1427(a).

Bontia then requested a hearing before an immigration officer. After conducting a review

hearing, the officer affirmed the denial of Bontia‟s application.

       Thereafter, Bontia filed a complaint in the District Court, pursuant to 8 U.S.C.

§ 1421(c), seeking de novo review of the denial of his application for naturalization.

USCIS moved for dismissal of the complaint or, alternatively, for summary judgment.

Bontia then filed an amended complaint and a cross-motion for summary judgment. The

District Court denied leave to file an amended complaint, denied Bontia‟s motion for

summary judgment, and granted USCIS‟s motion to dismiss. The Court determined that

the complaint failed to state a claim for relief because Bontia, given his conviction for

criminal sexual contact, is statutorily ineligible for naturalization, and it held that the

proposed amendments to the complaint would be futile because they failed to overcome

Bontia‟s statutory ineligibility.

       Bontia then filed this timely appeal.




                                               3
II.    Discussion1

       In order to qualify for naturalization, an applicant must demonstrate that he,

among other things, “has been and still is a person of good moral character.” 8 U.S.C.

§ 1427(a)(3). “No person shall be regarded as, or found to be, a person of good moral

character” if he “at any time has been convicted of an aggravated felony.” Id.

§ 1101(f)(8). “The term „aggravated felony,‟ applies not only to federal offenses, but

also to violations of state law.” Restrepo v. Att’y Gen., 617 F.3d 787, 791 (3d Cir. 2010).

“[S]exual abuse of a minor” is an “aggravated felony.” 8 U.S.C. § 1101(a)(43)(A). The

question we must answer is whether Bontia‟s 1992 conviction for “criminal sexual

contact” under § 2C:14-3b constitutes sexual abuse of a minor.

       To determine whether a state conviction constitutes “sexual abuse of a minor,” we

employ the two-step “categorical approach” set forth in Taylor v. United States, 495 U.S.

575 (1990). First, “we must ascertain the definition for sexual abuse of a minor.”

Restrepo, 617 F.3d at 791. Second, “we must compare this „federal‟ definition to the

state statutory offense in question.” Id. Ordinarily, the categorical approach “prohibits


       1
          The District Court had jurisdiction under 8 U.S.C. § 1421(c), and we have
jurisdiction under 28 U.S.C. § 1291. “Our review of a district court‟s decision to grant a
motion to dismiss … is plenary.” Gallo v. City of Phila., 161 F.3d 217, 221 (3d Cir.
1998). “We must accept as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and view them in the light most favorable to the
non-moving party.” DeBenedictis v. Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir.
2007) (internal quotation marks omitted). “The dismissal must be upheld if it appears to
a certainty that no relief could be granted under any set of facts which could be proved.”
Id. (internal quotation marks omitted). In addition, “[w]e review a district court‟s refusal
to allow a plaintiff to amend his complaint” pursuant to Rule 15(a) for “abuse of
discretion.” Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir. 2001).

                                             4
consideration of evidence other than the statutory definition of the offense, thus

precluding review of the particular facts underlying a conviction.” Stubbs v. Att’y Gen.,

452 F.3d 251, 253-54 (3d Cir. 2006). If, however, the statute of conviction criminalizes a

range of conduct, some of which qualifies as an aggravated felony and some of which

does not, we “must apply a modified categorical approach by which [we] may look

beyond the statutory elements to determine the particular part of the statute under which

the defendant was actually convicted.” United States v. Stinson, 592 F.3d 460, 462 (3d

Cir. 2010). “Such an examination ... is „only to determine which part of the statute the

defendant violated.‟” United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008) (quoting

United States v. Howell, 531 F.3d 621, 622-23 (8th Cir. 2008)). In the context of a guilty

plea, we “examin[e] the plea agreement, plea colloquy, or some comparable judicial

record of the factual basis for the plea” to determine which variation of the offense was

actually committed. Nijhawan v. Holder, 557 U.S. 29, 35 (2009) (internal quotation

marks omitted). “If conduct that meets the federal definition of sexual abuse of a minor

is necessary for a conviction” under the state statutory provision in question, then a

conviction under that statute “qualifies as a conviction for sexual abuse of a minor and,

by extension, an aggravated felony.” Restrepo, 617 F.3d at 791. If, on the other hand,

“the offense prohibited by” the state statute “is categorically broader than the federal

definition of sexual abuse of a minor,” then the conviction does not constitute an

aggravated felony. Id.

       We have previously undertaken step one. In Restrepo, we determined that the

definition of sexual abuse of a minor “is … not clear and unambiguous,” id. at 793, and

                                             5
we accordingly applied Chevron deference to the definition of that phrase given by the

Board of Immigration Appeals (“BIA”) in In re Rodriguez-Rodriguez, 22 I. & N. Dec.

991 (BIA 1999) (en banc). The BIA in Rodriguez-Rodriguez concluded that “sexual

abuse of a minor” was most appropriately defined by 18 U.S.C. 3509(a)(8), a code

section relating to the rights of child victims and witnesses in federal criminal cases. Id.

at 995-96. That section defines “sexual abuse” as “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 … .” 18 U.S.C. § 3509(a)(8).

In addition, “„sexually explicit conduct‟” includes “sexual contact,” which refers to “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 … .” Id. § 3509(a)(9).

Concluding that “the BIA‟s definition of sexual abuse of a minor is a reasonable one and

that it is appropriate to exercise Chevron deference,” we elected in Restrepo to “define

sexual abuse of a minor by reference to § 3509(a).” Restrepo, 617 F.3d at 796.

       Thus, our remaining task is to compare that definition of “sexual abuse of a

minor” to § 2C:14-3b, the statute under which Bontia was convicted. Section 2C:14-3b

criminalizes sexual contact if committed under any of several circumstances.2 Because



       2
           At the time of conviction, those circumstances were that:
                (1) The actor uses physical force or coercion, but the victim
                does not sustain severe personal injury;
                                               6
some of those circumstances require the victim to be a minor while others do not, we will

apply the modified categorical approach. Based on the charging document and the

transcript of the plea colloquy, we conclude that Bontia‟s conviction under § 2C:14-3b

was based on committing an act of sexual contact under the circumstances described in

§ 2C:14-2c(5) of the 1991 version of the statute, see supra note 2, because the victim was

thirteen years old at the time and Bontia was twenty-five years old.

       That provision falls squarely within the definition of sexual abuse of a minor set

forth in §§ 3509(a)(8) and (9). Like the definition of sexual abuse of a minor in those

provisions, the specific provision under which Bontia was convicted criminalizes sexual

contact with a minor (specifically, a minor between the ages of thirteen and sixteen).

And “[s]exual contact” under New Jersey law, similar to its federal counterpart, is “an

intentional touching by the victim or actor, either directly or through clothing, of the




              (2) The victim is one whom the actor knew or should have
              known was physically helpless, mentally defective or
              mentally incapacitated;
              (3) The victim is on probation or parole, or is detained in a
              hospital, prison or other institution and the actor has
              supervisory or disciplinary power over the victim by virtue of
              the actor‟s legal, professional or occupational status;
              (4) The victim is at least 16 but less than 18 years old and: (a)
              The actor is related to the victim by blood or affinity to the
              third degree; or (b) The actor has supervisory or disciplinary
              power over the victim; or (c) The actor is a foster parent, a
              guardian, or stands in loco parentis within the household; or
              (5) The victim is at least 13 but less than 16 years old and the
              actor is at least 4 years older than the victim.
N.J. Stat. Ann. § 2C:14-2c(1)-(5) (1991).

                                              7
victim‟s or actor‟s intimate parts[3] for the purpose of degrading or humiliating the victim

or sexually arousing or sexually gratifying the actor.” N.J. Stat. Ann. § 2C:14-1d. When

compared side by side with the federal definition of “sexual abuse of a minor,” there is no

aspect of Bontia‟s statute of conviction that is broader than the federal definition. In

other words, the “conduct that meets the federal definition of sexual abuse of a minor is

necessary for a conviction under” § 2C:14-3b, and Bontia‟s conviction under that statute

therefore “qualifies as a conviction for sexual abuse of a minor and, by extension, an

aggravated felony,” Restrepo, 617 F.3d at 791, rendering him ineligible for

naturalization.4


       3
        “Intimate parts” include the “sexual organs, genital area, anal area, inner thigh,
groin, buttock or breast of a person.” N.J. Stat. Ann. § 2C:14-1e.
       4
         Based on a misreading of § 3509(a)(9)(A), Bontia argues that his convicted
conduct does not fall within the definition of “sexual abuse” provided by § 3509(a)(8)
because it did not involve “genital-genital, oral-genital, anal-genital, or oral-anal
contact.” (Appellant‟s Br. at 14.) Section 3509(a)(9)(A) provides in full:
              the term “sexually explicit conduct” means actual or
              simulated – (A) sexual intercourse, including sexual contact
              in the manner of genital-genital, oral-genital, anal-genital, or
              oral-anal contact, whether between persons of the same or of
              opposite sex; sexual contact 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[.]
18 U.S.C. § 3509(a)(9)(A). Although the phrasing of that subsection is compact, it
defines two distinct categories of sexually explicit conduct: (1) “sexual intercourse,”
which is defined as “sexual contact in the manner of genital-genital, oral-genital, anal-
genital, or oral-anal contact,” and (2) “sexual contact,” which is defined as “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.” Id. Bontia‟s argument is that
the definition of “sexually explicit conduct” is limited to § 3509(a)(9)(A)‟s definition of
                                              8
       We accordingly affirm the District Court‟s granting of USCIS‟s motion to dismiss

for failure to state a claim.5




the term “sexual intercourse.” We reject that reading because it fails to give meaning to
anything after the semicolon, including the intentional touching of a breast or buttocks,
and it excludes a number of serious crimes commonly prosecuted as sexual abuse. See
e.g., Restrepo, 617 F.3d at 800 (affirming conviction for abusive sexual contact with
hands).
       Bontia also argues that § 2C:14-3b is broader than § 3509(a)(8)‟s definition of
“sexual abuse” because it does not require coercion. This is important, Bontia insists,
because he did not coerce his victim, but simply allowed her to touch him in a sexual way
without putting up any resistance. But § 3509(a)(8) does not require coercion in every
case. Rather, in addition to “coercion,” § 3509(a)(8) criminalizes the “employment” or
“use” of a child to engage in sexually explicit conduct. 18 U.S.C. § 3509(a)(8). By
allowing the victim, who as a child was not capable of consenting to sexual contact, to
engage in sexual contact with him, Bontia employed or used her to satisfy his sexual
desires. Cf. Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d 119, 124 (2d Cir. 2011)
(“[T]o „authorize‟ a child to engage in a sexual performance has the same effect as
„employing‟ or „inducing‟ the child to perform because the law does not view minors as
autonomous actors.”). Thus, § 3509(a)(8)‟s definition entirely encompasses the statute of
conviction, and Bontia‟s argument that he did not coerce his victim allows him no relief.
        Finally, Bontia asserts that 8 U.S.C. § 1101(a)(43)‟s inclusion of sexual abuse of a
minor as part of the definition of an aggravated felony cannot be applied to his 1992
conviction, because that provision was not enacted until 1996. The amended definition
“applies regardless of whether the conviction was entered before, on, or after September
30, 1996,” however, id. § 1101(a)(43), and although the amended definition applies only
to “actions taken on or after the date of the enactment,” it applies “regardless of when the
conviction occurred.” Illegal Immigration Reform and Immigrant Responsibility Act of
1996 § 321(c), Pub. L. No. 104-208, 110 Stat. 3009-628; see also Maldonado v. Att’y
Gen., 664 F.3d 1369, 1378 (11th Cir. 2011) (noting that Congress expressed a “clear
intention that the expanded definition of aggravated felony should be applied
retroactively”). Given that Bontia did not apply for naturalized status until 2009, all of
the immigration decisions at issue in this case were made after 1996. The amended
definition of the term aggravated felony therefore encompasses Bontia‟s 1992 conviction.
       5
          Bontia also argues that the District Court erred in denying him leave to amend
his complaint. For the reasons provided above, however, the amended complaint fails to
state a claim upon which relief may be granted because Bontia has a conviction for an
aggravated felony and he therefore cannot show that he is eligible for naturalization.
                                             9
III.   Conclusion

       For the foregoing reasons, we will affirm the District Court‟s order granting

USCIS‟s motion to dismiss and denying Bontia‟s motion for leave to amend his

complaint.




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