3d Cir: Adopts BIA’s interpretation of sexual abuse of a minor, finds NJ aggravated sexual criminal sexual contact is sexual abuse of minor, and statute of limitations doesn’t apply to removal proceedings

The Third Circuit Court of Appeals recently issued an important decision in the continued efforts of courts across the country to define the aggravated felony categories of removability. In N.J. Stat. Ann. § 2C:14-3(a), constitutes sexual abuse of a minor. Judge Connor wrote the panel’s decision.

This case involved an LPR who pled guilty to “aggravated sexual contact with a victim of at least thirteen years of age, but less than sixteen years of age….” Restrepo, No. 07-4741, slip op. at 3. Ten years after his conviction ICE placed Restrepo in removal proceedings, charging him as removable for having been convicted of sexual abuse of a minor, a type of aggravated felony listed in INA § 101(a)(43)(A). Restrepo, No. 07-4741, slip op. at 4.

Restrepo argued, first, that his conviction did not constitute sexual abuse of a minor and, second, that removal proceedings could not be initiated ten years after his conviction because the federal catch-all statute of limitations applies to removal proceedings, thus requiring removal proceedings to start within five years of the conviction that is the basis of removal proceedings.

To determine Restrepo’s argument that his conviction does not constitute sexual abuse of a minor the Third Circuit first did what it had not done since the sexual abuse of a minor phrase was added to the INA in 1996—it defined the term. The panel concluded that “the phrase is most assuredly not clear and unambiguous,” thus requiring that it look first at the legislative history to try to determine the phrase’s meaning and, “[i]f this endeavor is unsuccessful, we may defer to the interpretation of the statute derived by the appropriate executive agency, provided that the interpretation is reasonable. Restrepo, No. 07-4741, slip op. at 10 (relying on Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).

After examining the statute’s legislative history, the Third Circuit concluded that no clear definition of the phrase “sexual abuse of a minor” was found. As such, it turned to the definition of “sexual abuse of a minor” adopted by the BIA. Chevron requires courts to defer to an agency’s interpretation of an ambiguous term if that interpretation is reasonable. In Matter of Rodriguez-Rodriguez the BIA, sitting en banc,

“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. Section 3509(a)(8) defines sexual abuse to include ‘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.’”

Restrepo, No. 07-4741, slip op. at 19 (discussing Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995-96 (BIA 1999)).

Following the Second Circuit’s conclusion that this interpretation by the BIA was reasonable, the Third Circuit panel in Restrepo also determined that the BIA’s interpretation was reasonable, thus, pursuant to Chevron, the Third Circuit held that it was appropriate to defer to the BIA. Restrepo, No. 07-4741, slip op. at 21. “Accordingly, we will define sexual abuse of a minor by reference to § 3509(a).” Restrepo, No. 07-4741, slip op. at 21.

Having determined that sexual abuse of a minor as used by INA § 101(a)(43)(A) is defined in accordance with 18 U.S.C. § 3509(a), the Third Circuit then applied the modified categorical approach to “compare the definition of aggravated criminal sexual contact under N.J. Stat. Ann. § 2C:14-3(a) with our definition of sexual abuse of a minor” found at § 3509(a). Restrepo, No. 07-4741, slip op. at 28. Because Restrepo’s conviction required, according to the New Jersey statute, sexual contact with a victim that was between 13 and 16 years old and “related by blood or affinity to the third degree,” the Third Circuit easily concluded that Restrepo’s conviction constitutes sexual abuse of a minor. Restrepo, No. 07-4741, slip op. at 28-29.

Importantly, Restrepo’s indictment, to which he pled guilty, alleged that he sexually contacted his daughter who was between 13 and 16 years of age. Restrepo, No. 07-4741, slip op. at 28-29. Though the Third Circuit stated that “the sexual contact for which he was convicted was the intentional touching of his daughter’s breasts and vagina through her clothing,” such fact-specific discussion appears unnecessary since the New Jersey statute defines sexual contact sufficiently broadly to clearly come within the definition of “sexually explicit conduct” found at 18 U.S.C. § 3509(a). The Third Circuit, therefore, could have reached the same result as it did by applying the categorical approach to statutory interpretation rather than turning to the facts specified in the indictment as allowed by the modified categorical approach.

Having concluded that Restrepo was convicted of sexual abuse of a minor, it turned to his claim that removal proceedings were time barred by “28 U.S.C. § 2462, a federal ‘catch-all’ statute of limitations” that requires “that proceedings for the enforcement of ‘any civil fine, penalty, or forfeiture’ must be commenced no later than five years from the date when the claim accrued, except as provided by law. Restrepo contends that deportation is a forfeiture and/or a penalty….” Restrepo, No. 07-4741, slip op. at 31.

Though the Third Circuit explained that it was not comfortable with the long delay in initiating removal proceedings, it nonetheless concluded “that the statute [the INA] imposes no time constraints on such proceedings, and the task of creating a limitations period lies with the legislature, not the judiciary.” Restrepo, No. 07-4741, slip op. at 32. At best, INA § 239(d)(1), 8 U.S.C. § 1229(d)(1), requires the government to initiate removal proceedings “expeditiously,” but this does not suggest any specific time period nor does it impose any statute of limitations. “Thus, we conclude that § 2462’s five-year statute of limitations does not apply to removal proceedings.” Restrepo, No. 07-4741, slip op. at 32.