Richard McKoy v. Attorney General United States, 20-3626

Richard McKoy, a Jamaican native and U.S. lawful permanent resident, pled guilty in Pennsylvania to unlawful contact with a minor (18 Pa. Cons. Stat. § 6318(a)(1)) and indecent assault (18 Pa. Cons. Stat. § 3126(a)(1)).
DHS charged McKoy with removability under 8 U.S.C. § 1227(a)(2)(E)(i) (crime of child abuse) and as an aggravated felony; the aggravated-felony charge was dismissed and not appealed.
McKoy argued § 6318(a)(1) is indivisible because it criminalizes contact with either a minor or a law-enforcement officer posing as a minor, so the categorical approach forecloses determining whether his conviction necessarily involved a child.
The Immigration Judge concluded the statute is divisible, applied the modified categorical approach, and relied on the criminal information showing the victim was "G.R. Age: 15." The BIA affirmed.
The Third Circuit reviewed legal questions de novo, affirmed that § 6318(a)(1) is divisible, found the record shows the victim was a minor, and denied McKoy’s petition for review.

Issue	McKoy's Argument	Government's Argument	Held
Whether 18 Pa. Cons. Stat. § 6318(a)(1) is divisible	Statute is indivisible; alternatives (minor vs. officer posing as minor) are means, not elements, so categorical approach bars inquiry into record	Statute is divisible; jury is instructed on only one alternative victim and must be unanimous, so modified categorical approach applies	Court held the statute is divisible and permitted use of the modified categorical approach
Whether the conviction record shows the victim was a minor	Record does not necessarily establish a minor; conviction could rest on non-child conduct	Charging document identifies the victim as "G.R. Age: 15," establishing the conviction involved a minor	Court held the criminal information shows the victim was a minor; removal under 8 U.S.C. § 1227(a)(2)(E)(i) upheld

Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means for divisibility analysis)
Descamps v. United States, 570 U.S. 254 (2013) (explaining the modified categorical approach when a statute is divisible)
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (presumption that conviction rests on least culpable conduct under the categorical approach)
Shepard v. United States, 544 U.S. 13 (2005) (limited records permissible to identify the offense of conviction)
United States v. Blair, 734 F.3d 218 (3d Cir. 2013) (identifying documents appropriate for modified categorical inquiry)
Hillocks v. Atty. Gen., 934 F.3d 332 (3d Cir. 2019) (describing categorical and modified categorical approaches)
Castillo v. Att’y Gen., 729 F.3d 296 (3d Cir. 2013) (no deference to administrative interpretation of state criminal statutes)