George Cadapan v. Attorney General United States, 749 F.3d 157

Cadapan, a Philippine national and U.S. lawful permanent resident, was convicted in Pennsylvania (Aug 31, 2011) of: indecent assault of a child under 13 (18 Pa. Cons. Stat. § 3126(a)(7)), indecent assault without consent, and corruption of minors; sentenced to concurrent terms and probation; transferred to DHS custody after parole.
DHS charged removability under 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony: sexual abuse of a minor) and § 1227(a)(2)(E)(i) (crime of child abuse); Cadapan conceded the child-abuse charge but contested the aggravated-felony designation.
IJ found Cadapan removable on both grounds; BIA dismissed his appeal, treating Pennsylvania indecent assault as categorical sexual abuse of a minor under the INA.
On appeal, Cadapan raised for the first time an argument that he was never "admitted" to the United States and thus § 1227(a)(2)(A)(iii) does not apply; the court held this claim unexhausted and declined jurisdiction.
The court applied the categorical approach, using 18 U.S.C. § 3509(a)(8) (as a guide) and ordinary meanings (including Black’s Law Dictionary) to conclude that the Pennsylvania statute categorically constitutes "molestation" or "other form[s] of sexual exploitation" of a child and therefore qualifies as "sexual abuse of a minor" for INA aggravated-felony purposes.

Issue	Cadapan's Argument	Government's Argument	Held
Whether court has jurisdiction to consider Cadapan's claim that he was never "admitted" to the U.S.	Cadapan: he never raised admission before the IJ/BIA; he was not admitted, so § 1227(a)(2)(A)(iii) doesn't apply.	Gov't: argument unexhausted because not raised administratively; court lacks jurisdiction.	Court: claim unexhausted; no jurisdiction to consider it.
Whether a conviction under 18 Pa. Cons. Stat. § 3126(a)(7) categorically qualifies as "sexual abuse of a minor" (aggravated felony) under 8 U.S.C. § 1101(a)(43)(A)	Cadapan: Pennsylvania "indecent contact" can include non-sexual or non‑molesting contacts (e.g., touching back, shoulders) and Rule 414’s narrower definitions show "molestation" doesn't encompass all § 3126(a)(7) conduct.	Gov't: § 3126(a)(7) necessarily involves past sexual acts with a child and falls within § 3509(a)(8)’s definitions (molestation or sexual exploitation); Black’s ordinary meaning supports categorical match.	Court: conviction categorically qualifies as "sexual abuse of a minor"; BIA reasonably used § 3509(a)(8) and ordinary meaning; Cadapan removable as an aggravated felon.

Restrepo v. Attorney General, 617 F.3d 787 (3d Cir.) (adopts BIA’s use of 18 U.S.C. § 3509(a)(8) as a guide for defining "sexual abuse of a minor")
Castro v. Attorney General, 671 F.3d 356 (3d Cir. 2012) (exhaustion requirement attaches to each particular issue raised)
Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (ambiguous criminal statutes referenced by INA construed in noncitizen’s favor)
United States v. Santos, 553 U.S. 507 (U.S. 2008) (undefined statutory terms receive ordinary meaning)
Stubbs v. Attorney General, 452 F.3d 251 (3d Cir.) (conviction must necessarily involve a past act with a child to be classified as sexual abuse of a minor)
United States v. Jones, 740 F.3d 127 (3d Cir.) (modified categorical approach is appropriate only for divisible statutes)