978 F.3d 860
3d Cir.
2020
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Background

  • Petitioner Luis Fernando Grijalva Martinez, a Guatemalan national and LPR, was convicted in New Jersey (May 2016) of criminal sexual contact (N.J. Stat. Ann. § 2C:14-3(b)) and endangering the welfare of children.
  • DHS initiated removal proceedings charging removability as an alien convicted of a crime involving moral turpitude (CIMT), an aggravated felony (sexual abuse of a minor), and a child-abuse–related offense.
  • The IJ found the criminal sexual contact conviction both a CIMT and an aggravated felony, and held Grijalva Martinez ineligible for withholding of removal because his conviction was a "particularly serious crime;" the IJ also denied CAT relief.
  • The BIA affirmed the IJ on removability, the aggravated-felony classification, the particularly-serious-crime bar to withholding, and the denial of CAT protection.
  • Grijalva Martinez petitioned for review, challenging (1) the aggravated-felony classification, (2) the particularly-serious-crime finding for withholding, and (3) the CAT legal framework/application.
  • The Third Circuit denied the petition, agreeing that the NJ conviction categorically matched the federal generic offense of sexual abuse of a minor, and that withholding and CAT relief were properly denied.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether NJ criminal sexual contact is an aggravated felony (sexual abuse of a minor) under the INA Grijalva Martinez: the NJ statute does not match the federal generic definition; the conviction should not be an aggravated felony Government: the categorical/modified categorical approach shows the offense matches the federal generic definition of sexual abuse of a minor Court: Affirmed — using Restrepo/Cabeda framework and §2243 mens rea guidance, the NJ offense (as charged) is a categorical match and therefore an aggravated felony
Whether the conviction is a "particularly serious crime" barring withholding of removal Grijalva Martinez: only aggravated felonies can be particularly serious crimes and he was not subject to one (or his crime was not particularly serious) Government: the crime (sexual contact with a minor; facts and sentence) meets the Frentescu factors showing particular seriousness and danger to the community Court: Affirmed — IJ permissibly found the offense particularly serious based on nature of acts, facts, sentence, risk of recidivism
Whether IJ/BIA erred in denying CAT relief and applying correct legal standard Grijalva Martinez: CAT relief should have been granted given country conditions and personal risk Government: petitioner failed to show nexus to protected ground, government acquiescence, or that petitioner more likely than not would be tortured Court: Affirmed — substantial evidence supports denial; country reports and evidence did not show likelihood of torture or state acquiescence

Key Cases Cited

  • Restrepo v. Att'y Gen., 617 F.3d 787 (3d Cir. 2010) (adopts BIA guidance using 18 U.S.C. § 3509(a)(8) as the touchstone for federal "sexual abuse of a minor" in categorical analysis)
  • Cabeda v. Att'y Gen., 971 F.3d 165 (3d Cir. 2020) (imports §2243 mens rea standard into the federal generic offense; requires knowing sexual act but not knowledge of victim's age)
  • Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (Supreme Court guidance that courts may consult state codes when defining generic sexual-abuse-of-a-minor offense)
  • Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical approach for comparing state offenses to federal generic crimes)
  • Nijhawan v. Holder, 557 U.S. 29 (2009) (discusses application of categorical approach in immigration context)
  • Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from means and supports modified categorical approach)
  • Descamps v. United States, 570 U.S. 254 (2013) (limits use of Shepard documents under modified categorical approach)
  • Acevedo v. Barr, 943 F.3d 619 (2d Cir. 2019) (supports reading §2243 as disavowing mens rea for victim's age in related federal offenses)
  • Bastardo-Vale v. Att'y Gen., 934 F.3d 255 (3d Cir. 2019) (en banc) (both aggravated felonies and other offenses can be "particularly serious crimes")
  • Flores v. Att'y Gen., 856 F.3d 280 (3d Cir. 2017) (explains withholding-bar for particularly serious crimes)
  • Denis v. Att'y Gen., 633 F.3d 201 (3d Cir. 2011) (sets forth Frentescu factors and deference standards for particularly serious crime determinations)
  • Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (standard of review for agency factual findings in CAT determinations)
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