101 F.4th 361
4th Cir.2024Background
- David Orlando Marquez Cruz, a lawful permanent resident from El Salvador, was convicted in Washington, D.C., of attempted second degree child sexual abuse for a sexual relationship with a fifteen-year-old.
- Cruz's conviction led to an order of removal under the Immigration and Nationality Act (INA), specifically for a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i).
- Cruz challenged his removal, arguing his conviction — an attempt crime, imposing strict liability regarding the victim’s age — should not qualify as a removable "crime of child abuse."
- The Board of Immigration Appeals (BIA) upheld the removal order; the Fourth Circuit twice reviewed the case, remanding once for BIA to address specific arguments.
- The Fourth Circuit reviewed de novo whether D.C.'s attempted second degree child sexual abuse statute categorically qualifies as a removable crime of child abuse under the INA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempt crimes are removable crimes of child abuse under the INA | Attempted crimes are not covered since Congress did not expressly include attempts in the statute | The term should be read broadly to include attempts if they present a sufficient risk of harm to a child | Attempt offenses are included if they create a reasonable probability of harm to a child |
| Whether strict liability statutes (on victim’s age) can qualify as a crime of child abuse under the INA | Statutes must require culpable mens rea as to the victim's age to qualify | The mens rea requirement applies only to the conduct, not the victim's age; strict liability statutes suffice | Strict liability as to victim’s age does not disqualify conviction from being a “crime of child abuse” |
Key Cases Cited
- Esquivel-Quintana v. Sessions, 581 U.S. 385 (Supreme Court’s categorical approach to immigration removal offenses)
- Florez v. Holder, 779 F.3d 207 (2d Cir. 2015) (deference to BIA's broad definition of crime of child abuse)
- Garcia v. Barr, 969 F.3d 129 (5th Cir. 2020) (mens rea requirement applies to conduct, not victim's age, in crime of child abuse)
- Acevedo v. Barr, 943 F.3d 619 (2d Cir. 2019) (intent requirement applies to conduct, not victim’s age in sexual abuse of a minor)
- Grijalva Martinez v. Att’y Gen., 978 F.3d 860 (3d Cir. 2020) (knowledge of victim’s age not required for generic federal crime of child abuse)