On Tuesday, the Court of Appeals for the Third Circuit issued a published opinion in Cabeda v. Attorney General [AG]. Here's a summary: Thanks to bad and unclear precedent, and in particular the rule that courts apply the "categorical approach" in determining whether state crimes are removable offenses, immigration law has gotten dumber.
There had been glimmers of hope. On August 3, I wrote a post captioned: "Immigration Law Gets Less Dumb – For Now: AG Barr: An alien convicted of an aggravated felony has been convicted of an aggravated felony. Period.", about an opinion in which the AG clarified the "aggravated felony standard" (which I will reference below). That followed up on a July 31 post, "Are Grounds of Removability 'Dumb, Dumb, Dumb'? Yes. Also, 'We should avoid doing dumb things. Especially ones that are dumb.' But it's not that easy.", analyzing a good decision and better concurrence regarding crimes involving moral turpitude. Both involved adjudicators' struggles with the categorical approach.
The pendulum swung back quickly, and the categorical approach struck with a vengeance in Cabeda.
Cabeda, a citizen or national of Argentina and lawful permanent resident, was convicted in Pennsylvania state court for Involuntary Deviate Sexual Intercourse, in violation of 18 Pa. Cons. Stat. § 3123(a)(7), for which she received a sentence of four to eight years. That provision states:
A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant: who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other.
The term "deviate sexual intercourse" for purposes of this provision is defined in 18 Pa. Cons. Stat. § 3101 as follows, in pertinent part: "Sexual intercourse per os or per anus between human beings and any form of sexual intercourse with an animal."
That is all rather vague and clinical. In reality, the circuit court explained, the then-34-year-old Cabeda "repeatedly engaged in vaginal and oral sex with a 15-year-old boy", of whose age she was aware. Not surprisingly, ICE charged her with removability as an alien convicted of an aggravated felony, specifically under section 101(a)(43)(A) of the Immigration and Nationality Act (INA), as an alien convicted of "sexual abuse of a minor", as well as an alien charged with a crime of child abuse.
The immigration judge found that she was removable on both grounds, and she appealed to the Board of Immigration Appeals (BIA). The BIA affirmed that she was removable, and she filed a petition for review with the Third Circuit, but only on the question of whether she was removable on the aggravated felony ground.
By way of background, "sexual abuse of a minor" was added to the aggravated felony definition by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Congress did not define the term, and there is only passing reference to it in the conference report for that bill — likely because Congress figured that those five words (including one preposition and one indefinite article) would be applied in a commonsense manner to mean what they say. Big mistake.
As I explained in a January 2018 Backgrounder, in determining whether a state conviction would render an alien removable on criminal grounds, the Supreme Court, circuit courts, BIA, and immigration judges are now required to use the aforementioned "categorical approach". Under that approach, the adjudicator determines whether the elements of the state offense of conviction match the elements of a generic federal definition of the specific ground — in this instance, "sexual abuse of a minor".
The immigration laws of the United States have existed for at least 130 years (an argument can be made that they go back to the founding of the Republic), and the INA will soon be celebrating its 70th birthday, but the categorical approach is of much more recent vintage.
Originally applied in federal sentencing cases, in 2004 it began to creep into immigration law, in a case where the Supreme Court admonished adjudicators determining removability to look "to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime." In other words, it doesn't matter what the alien did — it matters what the alien was convicted of.
In 2007, recognizing that lower courts had been using the categorical approach in determining whether state criminal offenses were "aggravated felonies", the Supreme Court utilized it in a case involving a theft conviction (certain theft offenses are also aggravated felonies under the INA). It has just taken off from there.
That approach has been criticized by a number of courts, most recently the Third Circuit in Cabeda, where the majority stated: "We must apply [the categorical approach] now in an immigration case, but, in whatever context it surfaces, it's a fair bet that this formalistic framework may result in some counterintuitive and hard-to-justify outcome. And so it does here." The Ninth Circuit, in the concurrence referenced in the July 31 post, was even harsher.
Nonetheless, the Third Circuit did "intuition" and "justification" (let alone sense) no favors in its application of the approach, but that is only partly its fault.
By way of background, in 1999, in Matter of Rodriguez-Rodriguez, the BIA utilized a statutory approach to determine whether "indecency with a child by exposure" under Texas law was an aggravated felony "sexual abuse of a minor" offense (it was). It compared the language of the otherwise undefined term in the INA to 18 U.S.C. § 3509(a)(8), which defines the terms "sexual abuse" in a child victims' and child witnesses' rights statute, and concluded that statute contained the appropriate standard by which to assess the first two words in the INA provision.
That federal criminal statute defined "child" as a person under 18, and so that was employed to define the word "minor". So far, so good, and reasonable even under the categorical approach. In fact, the Third Circuit relied on that BIA decision in its 2010 decision in Restrepo v. AG. Reasonably, it then held: "Congress purposefully did not employ cross-references for these generic crimes [including "sexual abuse of a minor"] to ensure the incorporation of a broad range of diverse state statutory definitions."
Subsequently, in Esquivel-Quintana v. AG, a 2017 case involving a California statute that criminalized sexual intercourse between a minor (defined as anyone under the age of 18) by an actor more than three years older, the Supreme Court held that "minor" for purposes of the term in the INA meant someone under the age of 16.
In the course of that opinion, Justice Thomas, writing for the Court, stated: "The structure of the INA ... suggests that sexual abuse of a minor encompasses only especially egregious felonies." I would opine that was likely closer to dicta — of only tangential impact on the decision itself — than determination, as the Court's decision largely relied on its survey of state laws in effect at the time of IIRIRA, and on a separate federal statute (18 U.S.C. § 2243) in arriving at its conclusion.
Not to disagree with the justice, I would respond that Congress considered all offenses that could be reasonably termed "sexual abuse of a minor" to be "egregious" (including the California statute at issue). This should not be a crime on which one splits hairs.
Nonetheless, the BIA below in Cabeda concluded that the 2017 Supreme Court decision in Esquivel-Quintana v. AG had overruled Restrepo (the BIA's reasoning is unavailable, and therefore unclear). The Third Circuit concluded that this was in error (a judge in concurrence disagreed), and then went off on its own, using 18 U.S.C. § 3509 as its guide in determining whether the petitioner had been convicted of an aggravated felony.
Well, sort of. That federal criminal provision does not include a mens rea, that is, a state of mind required to be culpable for committing an offense (as opposed to the actus reus, the elements of the criminal offense itself). The Third Circuit concluded that a mens rea was an essential element of a generic definition of "criminal abuse of a minor".
Mens rea is generally broken down into four categories:
- Acting purposely — the defendant had an underlying conscious object to act;
- Acting knowingly — the defendant is practically certain that the conduct will cause a particular result;
- Acting recklessly — The defendant consciously disregarded a substantial and unjustified risk; or
- Acting negligently — The defendant was not aware of the risk, but should have been aware of the risk.
Somewhat over simplistically, the operative mens rea is what distinguishes "murder" from "manslaughter". Both involve killing a human being, but different states of mind are required for conviction.
Applying the referenced cite from Esquivel-Quintana itself, as well as its own conclusion that the term "aggravated felony" suggests "certain 'inherent seriousness'", and referencing 18 U.S.C. § 2243 (again, relied on in Esquivel-Quintana), the Third Circuit concluded that the appropriate mens rea for the generic definition of "sexual abuse of a minor" is "a knowing state of mind".
I would disagree on the latter point. It is true that the mens rea for sexual abuse of a minor in 18 U.S.C. § 2243 is acting "knowingly" (the government does not need to prove that the actor knew the age of the victim, however), but there is nothing, whatsoever, that suggests that Congress cared what the intent of the alien was in committing sexual abuse of a minor. As alluded to above, it already made the determination that the offense itself was "egregious".
Even accepting the Third Circuit's conclusion, however, its decision then ventures into the bizarre.
There is no mens rea under 18 Pa. Cons. Stat. § 3123(a)(7) — or at least not one referenced in the statute.
For that reason, the majority in Cabeda looked to a gap-filling provision in Pennsylvania criminal law, 18 Pa. Cons. Stat. § 302(c). It states: "When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto." Thus, the Third Circuit concluded, the lowest culpability required for "involuntary deviate sexual intercourse" by an adult with someone 15 and younger (in other words, "rape") is recklessness, and therefore not an aggravated felony.
Or, as the majority stated:
Thus, the mismatch between the mens rea of the federal generic crime and the Pennsylvania involuntary deviate sexual intercourse statute leads inevitably to the conclusion that they are not a categorical match. We are left with no option, then, but to conclude that Cabeda's multiple statutory rapes of a 15-year-old boy do not qualify as sexual abuse of a minor within the meaning of the INA. What a world.
Spare me — they created the mens rea of that crime.
I would say that the dissent had none of it, but that would be in error. Circuit Judge Joseph A. Greenaway, Jr., concurred that Esquivel-Quintana did not create a new generic definition of "sexual abuse of a minor", that 18 U.S.C. § 3509(a)(8) is "still the primary guide to defining the generic offense", and that the mens rea for the generic definition of "sexual abuse of a minor" is "knowing conduct as to the sexual act in question".
He contends, however, that the "realistic possibility requirement" would apply to this case, and bar Cabeda's claim.
What is the "realistic possibility requirement"? Under Supreme Court precedent, the alien must show "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the" federal "generic definition of a crime", in this instance, that an actor who committed involuntary deviate sexual intercourse was convicted for doing so recklessly.
Judge Greenway then shows, convincingly, that "Pennsylvania courts would more likely apply at least a mens rea of knowledge, if not intent", to that offense, and would not resort to the default mens rea in 18 Pa. Cons. Stat. § 302(c). Of course, he is in the dissent, so this is nothing more than a rhetorical exercise.
Majority rules. And the majority in this case falls all over itself apologizing for how ridiculous it is, as the foregoing demonstrates: "What a world." Respectfully, it is a world of their and their colleagues' own making, and one that Congress in IIRIRA could never have envisioned.
The Supreme Court largely took a pass in Esquivel-Quintana, explaining what "sexual abuse of a minor" was not — not what it was. It is possible that DOJ will seek that Court's review of this bizarre decision, and give it a second chance. Of course, there is a possibility that the result, however ludicrous, will not be much better than it already is.
It would be better for the Court to just scrap the categorical approach, with its "realistic possibility requirements" and its "generic definitions", which are sometimes little more than judicial legislation — a contradiction in terms for a reason.
Yes, there should be a rule that aliens are only be removable for what they were convicted of, not what they actually did, if for no other reason than to avoid relitigation of the criminal case in immigration court. Just come up with a rule that is easier to apply, and that avoids "counterintuitive and hard-to-justify outcomes". Especially in cases like this, where the stakes for society are so high, and the victims so innocent.