Decided: June 10, 2015
The Fourth Circuit held that the Board of Immigration Appeals (BIA) erred as a matter of law in concluding that Petitioner’s conviction of child abuse qualified as an aggravated felony, and vacated the order for Petitioner’s removal.
Petitioner entered the United States in 1980 as a lawful permanent resident. In 1990, he was convicted in a Maryland state court of child abuse, in violation of former Maryland Code, Article 27 §35A. In 2008, an immigration judge held that Amos was removable based on his felony conviction for sexual abuse of a minor. The BIA approved the immigrations judge’s order of removal. Amos appealed, but the BIA denied Petitioner’s motion for reconsideration. The question on appeal was whether Petitioner’s conviction, under the former Maryland statute, qualifies as the aggravated felony of “sexual abuse of a minor,” within the meaning of 8 U.S.C § 1101(a)(43)(A).
Petitioner contended that his Maryland conviction did not render him removable under 8 U.S.C § 1101(a)(43)(A), because “the conduct proscribed by the former Maryland statute is not encompassed within the generic federal offense of ‘sexual abuse of a minor.’” The Court was not persuaded by the BIA’s analysis that the failure to act to prevent child abuse is encompassed within the generic offense of “sexual abuse of a minor” in U.S.C § 1101(a)(43)(A). Accordingly, the Court vacated the order for Petitioner’s removal and granted his petitions for review.