U.S.

Departmcntustice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike. S11ite 2000
Fal/sCh11rch. Virginia 220-1/

Name:H-W
Date of this notice: 11/22/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DOJVtL Ca.;VLJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Pauley, Roger

Creppy, Michael J.
Greer, Anne J.

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: W-K-H-, AXXX XXX 710 (BIA Nov. 22, 2016)

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OHS/ICE Office of Chief Counsel - WAS

Winograd, Benjamin Ross
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U.S. Department of Justice
Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: 710 -Arlington, VA

Date:

Inre:Kall

NOV 22 2016

APPEAL
ON BEHALF OF RESPONDENT: Benjamin R. Winograd, Esquire
ON BEHALF OF OHS: Nicole Schroeder
Assistant Chief Counsel
CHARGE:
Notice: Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined under section 101(a)(43)(A))

APPLICATION: Termination; waiver of inadmissibility

In a decision dated April 5, 2016, an Immigration Judge found the respondent, a native and
citizen of the United Kingdom, and a lawful permanent resident of the United States, removable
but granted his application for adjustment of status under section 245(a) of the Immigration and
Nationality Act, 8 U.S.C. 1255(a), in conjunction with a waiver of inadmissibility under
section 212(h) of the Act, 8 U.S.C. l 182(h). The Department of Homeland Security (OHS) has
appealed, arguing that the respondent did not demonstrate the necessary exceptional and
extremely unusual hardship. In response, the respondent argues that the charge of removability
was improperly sustained; however, if properly sustained, he has demonstrated the requisite
hardship. We will dismiss the DHS appeal, conclude that the removal charge was improperly
sustained, and terminate proceedings.
The respondent is a native and citizen of the United Kingdom and a lawful permanent
resident of the United States (I.J. at 1; Exh. 1). 1 In May 2014, the respondent was convicted of
use of communications systems to facilitate certain offenses involving children in violation of
section 18.2-374.3 of the Virginia Code Annotated (hereinafter "section 18.2-374.3"), for which
he was sentenced to a term of imprisonment of 10 years, suspended (I.J. at 1-2; Exhs. 1, 2). The
respondent was charged as removable under section 237(a)(2)(A)(iii) of the Act for conviction of
an aggravated felony as defined in section 1Ol(a)(43)(A} of the Act, specifically "sexual abuse of
a minor" (Exh. 1). The Immigration Judge found that removability had been established (I.J. at
2). Wereview that legal issue de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

All references are to the April 5, 2016, Immigration Judge decision unless otherwise noted.
Cite as: W-K-H-, AXXX XXX 710 (BIA Nov. 22, 2016)

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IN REMOVAL PROCEEDINGS

710

In this case, "sexual abuse of a minor" has not been defined by the Act. Thus, this Board
looks to 18 U.S.C. 3509(a)(8) as "a guide in identifying the types of crimes we ... consider to
be sexual abuse of a minor" under section 101(a)(43)(A) of the Act.
Matter of Rodriguez-Rodriguez, 22 l&N Dec. 991, 996 (BIA 1999); see also Amos v. Lynch,
supra, at, 519-22 (not granting Chevron deference because no definition was formally adopted
by the Board). We have also held that a victim of sexual abuse who is under the age of 18 is a
"minor" for purposes of section 101(a)(43)(A). See Matter of V-F-D-, 23 l&N Dec. 859 (BIA
2006).
Accordingly, our task is to determine whether the respondent's Virginia conviction was for
an offense that necessarily involved "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). 2
The Virginia statute under which the respondent was convicted states:
A. As used in subsections C, D, and E, "use a communications system" means
making personal contact or direct contact through any agent or agency, any print
medium, the United States mail, any common carrier or communication common
carrier, any electronic communications system, the Internet, or any
telecommunications, wire, computer network, or radio communications system.
B. It is unlawful for any person to use a communications system, including but
not limited to computers or computer networks or bulletin boards, or any other
electronic means for the purposes of procuring or promoting the use of a minor
for any activity in violation of 18.2-370 or 18.2-374.1. A violation of this
subsection is a Class 6 felony.

The Fourth Circuit has held in the context of the Sentencing Guidelines, that sexual abuse of a
minor means physical or nonphysical misuse or maltreatment of a minor for a purpose associated
with sexual gratification. United States v. Diaz Ibarra, 522 F.3d, 343, 352 (4th Cir. 2008). The
result in this case would be the same if we used this definition.

2
Cite as: W-K-H-, AXXX XXX 710 (BIA Nov. 22, 2016)

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To determine whether the respondent's conviction is an aggravated felony under section

101(a)(43)(A) of the Act, we employ the categorical approach, which requires that we look to the
"elements" of the offense rather than the facts underlying the respondent's particular
prosecution. See Matter of Chairez ("Chairez Ill'), 26 I&N Dec. 819, 821 (BIA 2016).
Specifically, we consider "whether 'the state statute defining the crime of conviction'
catgorically fits within the 'generic' federal definition of a corresponding aggravated felony."
Amos v. Lynch, 790 F.3d 512, 518 (4th Cir. 2015) (quoting Moncrieffe v. Holder,
133 S. Ct. 1678, 1684 (2013)). That is, we "compare the elements of the generic federal offense
of 'sexual abuse of a minor' with the statutory elements of' section 18.2-374.3. Amos v. Lynch,
supra at, 521.

Aalllllll710
C. It is unlawful for any person 18 years of age or older to use a communications
system, including but not limited to computers or computer networks or bulletin
boards, or any other electronic means, for the purposes of soliciting, with
lascivious intent, any person he knows or has reason to believe is a child younger
than 15 years ofage to knowingly and intentionally:

Any person who violates this subsection is guilty of a Class 5 felony. However, if
the person is at least seven years older than the child he knows or has reason to
believe is less than 15 years of age, the person shall be punished by a term of
imprisonment of not less than five years nor more than 30 years in a state
correctional facility, five years of which shall be mandatory minimum term of
imprisonment. Any person who commits a second or subsequent violation of this
subsection when the person is at least seven years older than the child he knows
or has reason to believe is less than 15 years of age shall be punished by a term of
imprisonment of not less than 10 years nor more than 40 years, 10 years of which
shall be a mandatory minimum term of imprisonment.
D. Any person who uses a communications system, including but not limited to
computers or computer networks or bulletin boards, or any other electronic
means, for the purposes of soliciting, with lascivious intent, any child he knows or
has reason to believe is at least 15 years of age but younger than 18 years of age
to knowingly and intentionally commit any of the activities listed in subsection C
if the person is at least seven years older than the child is guilty of a Class 5
felony. Any person who commits a second or subsequent violation of this
subsection shall be punished by a term of imprisonment of not less than one nor
more than 20 years, one year of which shall be a mandatory minimum term of
imprisonment.
E. Any person 18 years of age or older who uses a communications system,
including but not limited to computers or computer networks or bulletin boards,
or any other electronic means, for the purposes of soliciting any person he knows
or has reason to believe is a child younger than 18 years of age for (i) any activity
in violation of 18.2-355 or 18.2-361, (ii) any activity in violation of 18.2374.1, or (iii) a violation of 18.2-374.1:1 is guilty of a Class 5 felony.

3
Cite as: W-K-H-, AXXX XXX 710 (BIA Nov. 22, 2016)

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1. Expose his sexual or genital parts to any child to whom he is not legally
married or propose that any such child expose his sexual or genital parts to such
person;
2. Propose that any such child feel or fondle his own sexual or genital parts or the
sexual or genital parts of such person or propose that such person feel or fondle
the sexual or genital parts ofany such child;
3. Propose to such child the performance of an act of sexual intercourse, anal
intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense
under 18.2-361; or
4. Entice, allure, persuade, or invite any such child to enter any vehicle, room,
house, or other place, for any purposes set forth in the preceding subdivisions.

It is undisputed by the parties that the respondent's record of conviction does not identify the
subsection used for conviction (Resp. Brief at 9; OHS Opposition to Mot. To Terminate at 9).

We first conclude that the respondent's statute of conviction is divisible as among its
subsections. The statute, on its face, may result in a conviction for either a "class 6" or "class 5"
felony. Compare section 18.2-374.3(B) with section 18.2-374.3(C), (D), and (E). 3 Moreover,
subsection (B) refers only to a "minor," while subsections (C) through (E) criminalize the
described conduct when the perpetrator "knows or has reason to believe" that the victim is a
minor. Id. Since the statute is divisible, we are permitted to review the record of conviction,
which demonstrates that the respondent was convicted of a "class 5" felony, and thus was not
convicted under subsection (B), as (B) is a class 6 felony with a maximum possible sentence of 5
years (Exh. 2). See Va. Code Ann. 18.2- l O( f) . The parties stipulated that the respondent's
record of conviction established that he could only have been convicted under subsection (C) or
(E) (Resp. Brief at 15; OHS Opposition to Mot. To Terminate at 9).

The respondent argues that the entire statute is categorically not sexual abuse of a minor
(Resp. Brief at 1 4-15). Specifically, he asserts that subsection (B) runs afoul of our holding in
Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015). Respondent cites that case for the
proposition that, whenever the victim could be 16 or 17 years old, the statute must require a
meaningful age differential between the perpetrator and the victim (Resp. Brief at 14-15;
Resp. Mot. To Terminate at 4-5).
However, we stated plainly in Matter of Esquivel-Quintana, supra, that " [w] e do not believe
that Congress intended to exclude from the aggravated felony definition all State statutes that
have defined sexual abuse of a minor, in part, by the victim being 16 or 17 years old." Id. at 474.
To further clarify the point, we emphasized that our holding, regarding a statutory rape statute,
"does not apply to other types of sexual crimes." Id. at 475. Furthermore, we acknowledge that
the reasoning in this case is currently under review at the Supreme Court.
See Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016), cert. granted,
201 6 WL 3689050 (U.S. Oct. 28, 20 1 6) (No. 1 6-54). Thus, we need not decide at this time
whether subsection (B) qualifies as sexual abuse of a minor. It is sufficient to observe that the
respondent could not have been convicted under this subsection , given that the cognizable
criminal documents of record establish that he was convicted of a "class 5" felony (Exh. 2;
Resp. Brief at 1 5).

Cite as: W-K-H-, AXXX XXX 710 (BIA Nov. 22, 2016)

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A statute is not divisible merely because it is listed in disj unctive subsections. Rather, at
least one of the statutory alternatives must define a separate "element" as opposed to "means."
See Mathis v. United States, 136 S. Ct. 2243 (2016); see also Chairez III, supra at 819-20
(holding that the approach to divisibility announced in Mathis applies in removal proceedings
nationwide). An element is a fact that the prosecution must prove to sustain a conviction.
See Mathis v. United States, supra at 2248. A statute will be "divisible for purposes of applying
the modified categorical approach only if at least one of the categories into which the
statute may be divided constitutes, by its elements," the generic federal offense.
United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th Cir. 2013).

..

Specifically, both subsection (C) and (E) permit a conviction when the perpetrator "has
reason to believe" the person he is contacting is a child. Thus, if the perpetrator contacts an adult
undercover officer posing as a child-as are the undisputed facts in this case-the person may
still be convicted. There is some case law permitting a finding that an alien has attempted to
commit sexual abuse of a minor when an undercover officer is involved, instead of an actual
minor. See Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 766 (7th Cir. 2005) (characterizing
the defense that, no minor was harmed because an undercover officer was involved, as an
argument of impossibility, which is rejected under both state and federal law);
see also Hix v. Commonwealth, 619 S.E.2d 80 (Va. 2005) (concluding that an undercover officer
was not a hindrance to a conviction for attempted indecent liberties with a minor). Here,
however, the respondent is not charged with attempted sexual abuse of a minor (Exh. 1 ). See
Pierre v. Holder, 588 F.3d 767 (2nd Cir 2009). Moreover, subsections (C) and (E) of section
18.2-374.3, involve "soliciting" minors, which we have held is fundamentally different from
attempt. See Matter of Guerrero, 25 I&N Dec. 631, 632 (BIA 2011) ("Solicitation is different
from attempt and conspiracy and is not covered under this section [I 01(a)(43)(U) of the Act] .").
Our guidance regarding "sexual abuse of a minor" has always contemplated an actual child
victim. Section 18.2-374.3 is not limited to such victims.
In view of the foregoing, we conclude that section 18.2-374.3 is divisible, but that
subsections (C) and (E) cannot qualify as an aggravated felony under section 101(a)(43)(A).
Accordingly, the removal charge under section 237(a)(2)(A)(iii) of the Act will be dismissed,
and the removal proceedings will be terminated.4
ORDER: The DHS appeal is dismissed.
FURTHER ORDER: The Immigration Judge's decision is vacated, the charge of
removability under section 237(a) (2)(A)(iii) of the Act is not sustained, and proceedings are
terminated.

We note that the offense was committed more than 5 years after the respondent's admission.
See section 237(a)(l )(A).

5
Cite as: W-K-H-, AXXX XXX 710 (BIA Nov. 22, 2016)

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. Second, we consider the possible subsections under which the respondent was convicted.
We agree with the respondent that neither subsection (C) or (E) establishes "sexual abuse of a
minor" as discussed in Matter of Rodriguez-Rodriguez, supra (Resp. Brief at 16-20). Rather,
these subsections are overbroad as to sexual abuse of a minor because they permit a conviction
even when no minor is involved. See, e. g. , Grafmuller v. Commonwealth, 698 S.E.2d 276, 279
(Va. Ct.App. 2010) ("Thus, the legislature clearly did not intend that the victim must be an actual
child; the defendant's solicitation of sexual behavior from a person that he believes is a child
constitutes the behavior that the legislature intended to prohibit. . . . A trial court may convict a
defendant upon proof that he believed the person that he solicited was a child.").

November 5, 2015

File: 710
In the Matter of

W-KIIIIIIIIH
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: Alex Bernstein
ON BEHALF OF OHS: Scott Gham

ORAL DECISION OF THE IMMIGRATION JUDGE

I will deny the respondent's motion to terminate.
In reviewing the Virginia statute for which the respondent has been
convicted (using a computer to solicit a minor in violation of Virginia Code Section 18.2374.3), I have concluded that there is no realistic probability that it would reach conduct
that is not "sexual abuse of a minor." I do not believe the cited requirement of a
meaningful age differential for violations of certain sub-sections of the Virginia statute is
applicable. Sub-sections cited involve sexual exploitation of children and the application
by the BIA of the meaningful age requirement arose in a different context, specifically

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ARLINGTON, VIRGINIA

that of statutory rape. Nor has any realistic probability been demonstrated that the
Virginia statute would be used to prosecute a hypothetical situation in which a truly

that sub-section (b ) of the Virginia statue does not necessarily involve an actual child
victim and thus does not necessarily constitute sexual abuse of a minor is conceptually
intriguing, but I am not persuaded by it. The sub-section covers "procuring or promoting
the use of a minor for any activity in violation of' the sections of the Virginia code
dealing with indecent liberties with a child and crimes against nature. That, in my view,
is sufficient to conclude it involves sexual abuse of a minor. Thus, it is categorically an
aggravated felony sexual abuse of a minor conviction.
I do not believe the Virginia statute at issue is divisible; however, if it were
deemed to be such and a modified categorical analysis is utilized, then conviction
records make it clear that the respondent's conviction was for a violation of a provision
of the Virginia statute that constituted sexual abuse of a minor.
The motion to terminate is denied.
The charge of removability in the Notice to Appear is sustained.
A bond is denied, given the fact the respondent has been convicted of an
aggravated felony, and is thus subject to mandatory detention pursuant to Section
236(c ) of the Immigration and Nationality Act.

Please see the next page for electronic

signature
2

November 5, 2015

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innocent solicitation of a child to marry was made. Finally, the respondent's argument

THOMAS G. SNOW
Immigration Judge

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November 5, 2015

A--710

'

'

/Isl/
Immigration Judge THOMAS G. SNOW

710

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snowt on May 25, 2016 at 12:33 PM GMT

November 5, 2015