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RICHARD MCKOY, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
United States Court of Appeals, Third Circuit
October 26, 2021
NOT PRECEDENTIAL
Submitted Under Third Circuit L.A.R. 34.1(a) October 25, 2021
On Petition for Review of an Order of the Board of Immigration Appeals (A058-349-641) Immigration Judge: Jack Weil
Before: GREENAWAY, JR., PHIPPS, and COWEN, Circuit Judges.
OPINION [*]
GREENAWAY, JR., CIRCUIT JUDGE.
Richard McKoy seeks review of the final order of removal finding him removable
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pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), based on his conviction for unlawful contact with a minor, in violation of 18 Pa. Cons. Stat. § 6318(a)(1). McKoy asserts that both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") erred when they concluded that § 6318(a)(1) was divisible and therefore amenable to review under the modified categorical approach. As we explain below, we agree that the statute is divisible and will therefore deny the petition for review.
I. Background
McKoy, a native and citizen of Jamaica, entered the United States in 2009 as a legal permanent resident. In 2018, in the Philadelphia Court of Common Pleas, McKoy was charged in an eight-count criminal information. He pled guilty to count one, charging him with unlawful contact with a minor, in violation of 18 Pa. Cons. Stat. § 6318(a)(1), and count four, charging him with indecent assault without consent, in violation of 18 Pa. Cons. Stat. § 3126(a)(1). Based on these offenses, McKoy was charged with removability for having been convicted of a crime of child abuse, pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), and for having been convicted of an aggravated felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).[1]
Before the IJ, McKoy admitted to the factual allegations in the Notice to Appear ("NTA"), but denied the charges of removability and moved to terminate the
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proceedings. McCoy made clear that he sought no other relief from removal. With respect to the child abuse offense, McKoy did not question whether § 6318(a)(1) satisfied the definition of child abuse when the victim was a minor. Instead, he argued that the underlying Pennsylvania statute[2] encompasses conduct that is broader than the generic definition of child abuse for immigration purposes. Specifically, he focused on the fact that someone could be convicted under the Pennsylvania statute based on conduct involving a minor or a law enforcement officer assuming the identity of a minor, thus encompassing conduct not involving a minor. Arguing that the statute was indivisible under the categorical approach, [3] McCoy asserted that his removal proceedings should be terminated.
The IJ disagreed with McKoy's position, concluding that, since § 6318(a)(1) was
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divisible, application of the modified categorical approach was appropriate. Relying on the criminal information, the IJ found that McKoy's offense involved a minor, and not a law enforcement officer posing as a minor.
Asserting that the IJ erred in finding § 6318(a)(1) divisible, McKoy sought review before the BIA. The BIA affirmed the IJ's decision and dismissed the appeal. McKoy filed a timely petition for review before this Court.
II. Discussion
The BIA had jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), but jurisdiction is limited to review of "constitutional claims and questions of law." Hanif v. Att'y Gen., 694 F.3d 479, 483 (3d Cir. 2012) (citing 8 U.S.C. § 1252(a)(2)(D)).
Because the BIA did not summarily affirm the IJ's order but instead issued a separate opinion, we review the BIA's disposition and look to the IJ's ruling only insofar as the BIA deferred to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review factual findings by the BIA for "substantial evidence, which means we must uphold findings of fact unless the record evidence compels a contrary finding." Li Hua Yuan v. Att'y Gen., 642 F.3d 420, 425 (3d Cir. 2011).
"Because the BIA's written decision in this case was an unpublished, non-precedential decision issued by a single BIA member, to the extent it was interpreting statutes, we will not afford it Chevron deference. Instead, those issues of statutory interpretation, along with other questions of law, will be reviewed de novo." Gourzong v. Att'y Gen.,
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826 F.3d 132, 136 (3d Cir. 2016) (citing Mahn v. Att'y Gen., 767 F.3d 170, 173 (3d Cir. 2014) (internal citations omitted)). "Moreover, 'we owe no deference to the [administrative] interpretation of a state criminal statute.'" Castillo v. Att'y Gen., 729 F.3d 296, 302 (3d Cir. 2013) (quoting Partyka v. Att'y Gen., 417 F.3d 408, 411 (3d Cir. 2005)).
When determining if a particular state crime renders an alien removable, "the immigration courts look to see if the statute matches the federal definition of a qualifying crime. This is known as the 'categorical approach.'" Hillocks v. Atty. Gen'l, 934 F.3d 332, 336 (3d Cir. 2019). "[T]he categorical approach does not call for the consideration of the facts of a particular case." Id. at 338. Instead, "[w]e presume that the state conviction rested upon the least of the acts criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime." Id. (quoting Esquival-Quintana v. Sessions, 137 S.Ct. 1562, 1567 (2017)) (internal quotation marks omitted). "[A]n indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime." Mathis v. United States, 136 S.Ct. 2243, 2257 (2016).
"Courts 'modify' this approach where a crime has multiple alternative elements- facts that a prosecutor must prove, and a jury must find, beyond a reasonable doubt." Hillocks, 934 F.3d at 338. "[T]he modified approach 'helps implement the categorical approach' when a defendant was convicted of violating a divisible statute." Id. (quoting
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Descamps v. United States, 570 U.S. 254, 263 (2013)). Applying the modified categorical approach, we may "consult a limited class of documents . . . to determine which alternative formed the basis of the defendant's . . . conviction." Descamps, 570 U.S. at 257.
Looking only at the statute of conviction,...
