5 F.4th 867
8th Cir.2021Background
- Pah Peh, a lawful permanent resident, pleaded guilty in Iowa (2019) to enticing a person reasonably believed to be under 16 with intent to commit an illegal act upon a minor (Iowa Code § 710.10(3)); the judgment did not specify the intended "illegal act."
- The charging information originally alleged intent to commit sexual abuse/exploitation of a child under 13, but Peh pleaded to the lesser, § 710.10(3) offense concerning persons under 16.
- DHS initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(E)(i) (removability for convictions for a "crime of child abuse, child neglect, or child abandonment").
- An Immigration Judge sustained removability and denied relief; the BIA affirmed, finding Peh removable under the agency’s definition of "crime of child abuse."
- Peh petitioned for review, arguing the Iowa enticement statute can criminalize conduct (e.g., enticing to commit disorderly conduct or harassment) that does not necessarily constitute child abuse.
- The court vacated and remanded because the government’s rationale conflated separate statutory elements and the BIA’s explanation about the "realistic probability" inquiry was unclear and required clarification on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peh’s conviction under Iowa § 710.10(3) is a categorical "crime of child abuse" under 8 U.S.C. § 1227(a)(2)(E)(i) | Peh: The statute allows convictions based on intent to commit minor/non-abusive illegal acts (e.g., disorderly conduct, harassment), so it does not necessarily match the Board’s definition of child abuse. | Gov: The statute’s "entice" element inherently requires drawing in a child in a way that implies abuse; thus it categorically matches the federal definition. | Court: Rejected government’s conflation of elements; under the statute’s plain text an offender could intend non-abusive illegal acts, so categorical match is not established on the government’s offered rationale. Vacated and remanded. |
| Proper application of the "realistic probability" test when a state statute’s text permits hypothetical non-abusive prosecutions | Peh: The statute’s broad text creates a realistic possibility of prosecutions for non-abusive conduct; the categorical approach bars removability. | Gov: Argued Iowa would not prosecute the hypotheticals because "entice" requires arousing hope/desire and thus abusive intent. | Court: The BIA’s opinion was ambiguous about whether it relied on textual limits or on a showing of actual prosecution practice; remand required for clarification and, if necessary, fact-finding under the realistic-probability framework. |
Key Cases Cited
- INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (agency definitions entitled to deference in immigration removability analysis)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (realistic-probability qualification on categorical approach)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (limits on conjectural categorical comparisons)
- Reyna v. Barr, 935 F.3d 630 (8th Cir. 2019) (application of categorical approach in immigration context)
- Mowlana v. Lynch, 803 F.3d 923 (8th Cir. 2015) (realistic-probability inquiry may require showing actual prosecutions)
- Gonzalez v. Wilkinson, 990 F.3d 654 (8th Cir. 2021) (when statute’s reach is clear on its face, realistic probability may be evident from statutory language)