Pah Peh, Petitioner, v. Merrick B. Garland, Attorney General of United States,
No. 20-1508
United States Court of Appeals For the Eighth Circuit
July 16, 2021
Submitted: January 12, 2021
Petition for Review of an Order of the Board of Immigration Appeals
Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
Pah Peh, a native of Thailand and citizen of Burma, petitions for review of an order of the Board of Immigration Appeals. The Board concluded that he was removable because his prior conviction for enticing a minor under Iowa law was a1 “crime of a child abuse.” We conclude that the Board‘s decision cannot be upheld on the rationale advanced by the government, and it is unclear whether the Board relied on other grounds, so we vacate the decision and remand for further proceedings.
I.
Pah Peh has been a lawful permanent resident of the United States since 2009. In 2019, he was convicted after a guilty plea in Iowa state court of “Enticing, under 16 years, illegal act,” in violation of
The Department of Homeland Security initiated removal proceedings against Peh on the ground that his conviction qualified as a “crime of child abuse, child neglect, or child abandonment” under
Peh petitions for review of the Board‘s order. He argues that his conviction for enticing a minor in violation of
II.
The Immigration and Nationality Act provides than an alien is removable if, at any time after admission, he is convicted of a “crime of child abuse, child neglect, or child abandonment.”
The Board interprets “crime of child abuse” to mean “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child‘s physical or mental well-being, including sexual abuse or exploitation.” Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008). The definition encompasses offenses that cause “mental or emotional harm,” and the victim must be under the age of eighteen years. Id.
We use the so-called categorical approach to determine whether Peh‘s enticement offense in Iowa matches the federal definition of a crime of child abuse. Under that approach, we consider whether the elements of his offense necessarily fit within the Board‘s generic definition. Reyna v. Barr, 935 F.3d 630, 632 (8th Cir. 2019). We must presume that Peh‘s conviction rested on no more than the least of the acts criminalized by the Iowa statute. Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013). This analysis, however, is not an “invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.‘” Id. at 191 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
Iowa law provides that a person commits a class D felony “when, without authority and with the intent to commit an illegal act upon a minor under the age of sixteen, the person entices a person reasonably believed to be under the age of sixteen.”
Peh disputes that the Iowa enticement statute meets the Board‘s requirement of an act that “constitutes maltreatment of a child or that impairs a child‘s physical or mental well-being.” Velazquez-Herrera, 24 I. & N. Dec. at 512. He argues that because the state offense can involve an intent to commit “an illegal act upon a minor,” a person could be convicted for enticing a minor with intent to commit simple misdemeanors such as disorderly conduct, harassment, and driving above the speed limit. Enticement for those purposes, he contends, would not constitute a crime of child abuse. Peh has not argued that the enticement statute is overbroad as applied to his own case, but the government does not suggest that
The Board concluded that Peh had “not established a realistic probability that Iowa would successfully prosecute a violation of
The government defends the Board‘s decision on the ground that the text of
We reject this argument because it mistakenly conflates two separate elements in the Iowa statute. To convict an offender under
Looking only at the plain text of the Iowa statute, we cannot exclude the possibility that an offender could be prosecuted for enticing a minor with intent to commit disorderly conduct or harassment upon a minor. Disorderly conduct involves making “loud and raucous noise” in the vicinity of a residence or public building “which intentionally or recklessly causes unreasonable distress to the occupants
Whether there is a categorical match between the federal removal statute and the Iowa enticement statute may depend on how the Board and the court apply the “realistic probability” inquiry. As noted, the Supreme Court has said that “there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.‘” Moncrieffe, 569 U.S. at 191 (quoting Duenas-Alvarez, 549 U.S. at 193). There are two schools of thought on this requirement.
On one view, illustrated by Mowlana v. Lynch, 803 F.3d 923 (8th Cir. 2015), the analysis does not stop with the plain language of a statute that allows for “fanciful hypotheticals” or “theoretical possibilities” that would defeat a categorical comparison. Id. at 925. Mowlana cited Moncrieffe, where the Supreme Court described the “realistic probability” requirement as a “qualification” on the categorical approach, and said that a noncitizen must “demonstrate that the State actually prosecutes the relevant offense in cases involving” nongeneric conduct. 569 U.S. at 191, 206.
In Moncrieffe, the government expressed concern that a conviction under a state firearms law that did not contain an exception for “antique firearms” would fail to qualify as an aggravated felony, because the corresponding federal statute includes an exception for antique firearms. The Court responded that “[t]o defeat the categorical comparison in this manner, a noncitizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms.” Id. at 206. Mowlana read that discussion to mean that “[o]ur analysis of realistic probability must go beyond the text of the statute of conviction to inquire whether the government actually prosecutes offenses . . . in cases involving hypothetical conduct that would not qualify” under a generic federal definition. 803 F.3d at 925; see also Fletcher v. United States, 858 F.3d 501, 507-08 (8th Cir. 2017); Armenta-Lagunas v. Holder, 724 F.3d 1019, 1024 (8th Cir. 2013).
A competing view, however, holds that where “the statute‘s reach is clear on its face,” the “realistic probability” is “evident from the language of the statute itself.” Gonzalez v. Wilkinson, 990 F.3d 654, 660 (8th Cir. 2021). In that situation, an alien need not demonstrate any likelihood that
The Board‘s decision in this case is not clear about how it understood the “realistic probability” requirement. The decision said that Peh had “not established a realistic probability that Iowa would successfully prosecute a violation of
For these reasons, the petition for review is granted, the Board‘s decision of February 24, 2020, is vacated, and the case is remanded for further proceedings.