Omar Thompson v. William Barr
922 F.3d 528
4th Cir.2019Background
- Omar Thompson pled guilty in 2014 to two counts of taking custodial indecent liberties with a child under Va. Code § 18.2-370.1(A). DHS charged the convictions as aggravated felonies ("sexual abuse of a minor") under the INA and initiated removal proceedings.
- The BIA concluded the Virginia offense qualified as the INA aggravated felony of sexual abuse of a minor; Thompson petitioned for review in the Fourth Circuit.
- The Fourth Circuit applies the categorical approach: identify the closest listed federal offense, determine the generic federal definition, and compare the state statute’s elements to the generic definition by considering the least culpable conduct the state statute criminalizes.
- The court adopted the Fourth Circuit’s prior formulation that "sexual abuse of a minor" means the perpetrator’s physical or nonphysical misuse of a minor for a purpose associated with sexual gratification, which has three characteristics: (1) targets minors, (2) requires a sexual-gratification mens rea, and (3) involves physical or nonphysical misuse or maltreatment.
- Virginia’s statute requires (a) victim under 18, (b) lascivious intent (mens rea), and (c) various acts including propositions, exposure, touching, or other specified sexual acts, and applies only to those in custodial/supervisory relationships.
- The Fourth Circuit held the Virginia custodial-indecent-liberties offense categorically matches the INA generic offense and thus is an aggravated felony for immigration purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Va. Code § 18.2-370.1(A) is a categorical match to the INA aggravated felony "sexual abuse of a minor" | Thompson: the Virginia statute criminalizes conduct (e.g., consensual acts between 17- and 18-year-olds, non-contact propositions, unaware victims) that falls outside the federal generic definition | DHS/BIA: statute requires lascivious intent, targets minors, and criminalizes physical and nonphysical misuse—matching the federal generic definition | Held: The statute categorically matches the generic federal crime and is an aggravated felony. |
| Whether specific features of the Virginia statute (enumerated subsections, possibility of conviction where victim consents or is unaware) render it broader than the generic offense | Thompson: enumeration and inclusion of mere propositions or consensual acts could sweep in non-abusive conduct outside the federal definition | DHS/BIA: federal definition is intent-centered and covers nonphysical misuse and propositions; Virginia’s enumerated acts fall within that scope; petitioner’s hypotheticals are unrealistic and not shown to have occurred | Held: Those features do not make the statute overbroad; hypotheticals are speculative and not realistically probable. |
| Whether Esquivel-Quintana v. Sessions narrows the federal generic definition to exclude victims aged 16–17 or non-contact offenses | Thompson: Esquivel-Quintana implies sexual abuse excludes conduct involving 16–17-year-olds and non-contact acts | DHS/BIA: Esquivel-Quintana was limited to statutory-rape contexts (strict-liability intercourse offenses) and expressly excluded offenses based on special relationships of trust; Virginia statute requires lascivious intent and a custodial relationship | Held: Esquivel-Quintana does not overrule Fourth Circuit precedent; it does not bar treating the Virginia custodial statute as sexual abuse of a minor. |
Key Cases Cited
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (categorical-approach standard for immigration/criminal statutory comparisons)
- Taylor v. United States, 495 U.S. 575 (origin of the categorical approach)
- Larios-Reyes v. Lynch, 843 F.3d 146 (Fourth Circuit definition of "sexual abuse of a minor")
- United States v. Perez-Perez, 737 F.3d 950 (Fourth Circuit applying categorical approach to indecent-liberties statute)
- United States v. Diaz-Ibarra, 522 F.3d 343 (holding sexual abuse is intent-centered and need not show physical/psychological injury)
- Moncrieffe v. Holder, 569 U.S. 184 (clarifying"realistic probability" standard under categorical approach)
- United States v. Alfaro, 835 F.3d 470 (emphasizing sexual-gratification mens rea as key)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (Supreme Court decision limited to statutory-rape context; discussed but distinguished)
- Stitt v. United States, 139 S. Ct. 399 (discussion of how detailed vs. general statutory language affects categorical analysis)