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Amos v. Lynch

United States Court of Appeals, Fourth Circuit

June 10, 2015

RICHARD JESUS AMOS, Petitioner,
v.
LORETTA E. LYNCH, Attorney General, Respondent

Argued: March 24, 2015.

Page 513

On Petitions for Review of Orders of the Board of Immigration Appeals.

ARGUED:

Jay S. Marks, LAW OFFICES OF JAY S. MARKS, LLC, Silver Spring, Maryland, for Petitioner.

Rebecca Hoffberg Phillips, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Joyce R. Branda, Acting Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before MOTZ, KEENAN, and THACKER, Circuit Judges. Judge Keenan wrote the opinion, in which Judge Motz and Judge Thacker joined.

OPINION

Page 514

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we review consolidated petitions filed by Richard Jesus Amos, a citizen of the Philippines, challenging decisions of the Board of Immigration Appeals (the BIA, or the Board), which dismissed Amos's appeal from an immigration judge's order of removal and denied Amos's motion for reconsideration. The BIA determined that Amos was removable based on his conviction in 1990 for " causing abuse to a child," in violation of Maryland law.

The BIA held that this offense qualified as an " aggravated felony" under the generic federal crime of " sexual abuse of a minor," as listed in 8 U.S.C. § 1101(a)(43)(A). We are not persuaded by the BIA's analysis and its conclusion, because the least culpable conduct under the former Maryland statute prohibiting sexual abuse of a child does not necessarily qualify as the generic federal offense of " sexual abuse of a minor," as interpreted by the BIA. We therefore grant Amos's petitions for review and vacate the order for his removal.

I.

Amos entered the United States in 1980 as a lawful permanent resident, when he was about nine years old. In 1990, he was convicted in a Maryland state court of the crime of " causing abuse to [a] child" (the child abuse conviction), in 4 violation of former

Page 515

Maryland Code, Article 27 § 35A (1988). That statute stated in relevant part:

(a) Definitions --
(1) In this section the following words have the meanings indicated.
(2) " Abuse" means:
(i) The sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child under circumstances that indicate that the child's health or welfare is harmed or threatened thereby; or
(ii) Sexual abuse of a child, whether physical injuries are ...

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