Academic journal article Suffolk Transnational Law Review

Fourth Circuit Provides Its Own Definition of "Sexual Abuse of a Minor"

Academic journal article Suffolk Transnational Law Review

Fourth Circuit Provides Its Own Definition of "Sexual Abuse of a Minor"

Article excerpt

An alien admitted to the United States is subject to removal if convicted of an aggravated felony, as defined in the Immigration and Nationality Act (the Act). (1) A noncitizen falls under the "sexual abuse of a minor" subcategory of the aggravated felony statute in the Act if convicted of a federal or state statute that conforms to the Board of Immigration Appeals' (BIA) or the circuit courts' definition of "sexual abuse of a minor." (2) The United States Court of Appeals for the Fourth Circuit, in Amos v. Lynch, (3) addressed whether the former Maryland statute qualifies as "sexual abuse of a minor" under the aggravated felony statute in the Act. (4) The Fourth Circuit did not defer to the BIA's definition and instead determined that the Maryland statute did not constitute "sexual abuse of a minor" under the aggravated felony statute in the Act. (5)

Richard Jesus Amos (Amos), a native and citizen of the Philippines, came to the United States in 1980. (6) Amos was admitted to the United States as a lawful permanent resident at the age of nine years old. (7) Ten years after his arrival in the United States as a lawful permanent resident, he was convicted of causing abuse to a child in Maryland. (8) Amos was sentenced to eighteen months imprisonment, which was suspended for three years of probation. (9)

In 2008, the Department of Homeland Security initiated removal proceedings against Amos. (10) Amos was charged as being removable from the United States for having been convicted of a crime that constitutes an aggravated felony, namely, "sexual abuse of a minor." (11) At the hearing before an immigration judge, Amos was ordered removed from the United States. (12) The BIA affirmed the order of removal. (13) After the BIA affirmed the decision, Amos filed a motion to reconsider, which the BIA denied. (14) Amos petitioned the Fourth Circuit to review the BIA's affirmation of the order of removal, as well as the denial of the motion to reconsider, both of which were consolidated into one case, and eventually resulted in the Court's decision to vacate the order of removal. (15)

Congress enacted the aggravated felony statute to remove aliens who were convicted of the most heinous crimes and attached the most severe consequences for convictions of those crimes. (16) Certain conduct under the aggravated felony statute is defined in the Act by referencing one or multiple federal criminal statutes; "sexual abuse of a minor," however, does not have a reference statute. (17) To fill the gap left by Congress, the BIA issued a precedential decision in Matter of Rodriguez-Rodriguez (Rodriguez-Rodriguez), (18) which sought to define "sexual abuse of a minor." (19) The BIA's decision invoked the 18 U.S.C. [section] 3509(a)(8) and Black's Law Dictionary definitions of sexual abuse because both permit conduct lacking physical contact to be an offense, unlike other federal statutes. (20) when attempting to determine if a statute fits within the definition of "sexual abuse of a minor" under the Act, a court will conduct an inquiry to determine what portion of the statute the individual was convicted of and what is the least level of conduct criminalized under that specific portion of the statute. (21) In Maryland, the least level of conduct criminalized under the specific portion of the sexual abuse statute was delineated in Degren v. State. (22)

The Supreme Court of the United States has identified two levels of deference that could be accorded to federal administrative agencies and some instances where such agencies are to be accorded no deference. (23) As described in Chevron U.S.A., Inc. v. Natural Resources Defense Council, (24) a reviewing court must defer to the federal administrative agency's statutory interpretation where: (1) Congress's intent is unclear and (2) the agency's interpretation is reasonable. (25) Under Skidmore v. Swift & Co., (26) the reviewing court will consider multiple factors when deciding what amount of deference to afford an administrative agency. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.