RAFAEL ANTONIO LARIOS-REYES, a/k/a Rafael A. Reyes, Petitioner,
LORETTA E. LYNCH, Attorney General, Respondent.
Argued: September 21, 2016
Petition for Review of an Order of the Board of Immigration
Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER,
LLC, Alexandria, Virginia, for Petitioner.
L. Melnik, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Himedes V. Chicas, JEZIC & MOYSE, LLC, Silver Spring,
Maryland, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Derek C. Julius, Senior Litigation Counsel, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
for review granted and order of removal vacated by published
opinion. Chief Judge Gregory wrote the opinion, in which
Judge Niemeyer and Judge Harris joined.
GREGORY, Chief Judge:
Antonio Larios-Reyes, a native and citizen of El Salvador,
seeks review of the decision of the Board of Immigration
Appeals ("BIA") finding him removable based on his
conviction for "Third Degree Sex Offense" under
Maryland Criminal Law Article § 3-307. The BIA
determined that Larios-Reyes's state conviction qualifies
as the aggravated felony of "sexual abuse of a
minor" under § 1101(a)(43)(A) of the Immigration
and Nationality Act ("INA") and affirmed the
immigration judge's finding that Larios-Reyes is
therefore removable. We find that the BIA erred as a matter
of law and hold that Larios-Reyes's conviction does not
constitute the aggravated felony of "sexual abuse of a
minor" under the INA because Maryland Criminal Law
Article § 3-307 proscribes more conduct than does the
generic federal offense. We therefore grant
Larios-Reyes's petition for review, vacate the order of
removal, and order his immediate release from Department of
Homeland Security ("DHS") custody.
entered the United States as a lawful permanent resident in
1999, when he was four years old. Administrative Record
("A.R.") 450. On August 5, 2013, Larios-Reyes was
charged with "Sex Offense Second Degree" in
violation of Maryland Criminal Law Article § 3-306 and
"Sex Abuse Minor" in violation of §
3-602(b)(1). Id. at 765. On September 13, 2013,
Larios-Reyes was indicted on both counts. Id. at
2014, Larios-Reyes and the State of Maryland reached a plea
agreement. The State dismissed the "Sex Abuse
Minor" charge and amended the "Sex Offense Second
Degree" charge to the lesser charge of "Third
Degree Sex Offense" under § 3-307. Id. at
756, 769. Larios-Reyes pleaded guilty to the amended second
charge, which states that
RAFAEL ANTONIO REYES (date of birth 09/16/94), on or about
and between November 1, 2012, and November 30, 2012[, ] . . .
in Montgomery County, Maryland, did commit a sexual offense
in the third degree on [victim] (date of birth 05/23/08), to
wit: fellacio, in violation of Section 3-307 of the Criminal
Law Article against the peace, government, and dignity of the
Id. at 763.
Maryland statute under which Larios-Reyes was convicted
(a) A person may not:
(1) (i) engage in sexual contact with another without the
consent of the other; and
(ii) 1. employ or display a dangerous weapon, or a physical
object that the victim reasonably believes is a dangerous
2. suffocate, strangle, disfigure, or inflict serious
physical injury on the victim or another in the course of
committing the crime;
3. threaten, or place the victim in fear, that the victim, or
an individual known to the victim, imminently will be subject
to death, suffocation, strangulation, disfigurement, serious
physical injury, or kidnapping; or
4. commit the crime while aided and abetted by another;
(2) engage in sexual contact with another if the victim is a
mentally defective individual, a mentally incapacitated
individual, or a physically helpless individual, and the
person performing the act knows or reasonably should know the
victim is a mentally defective individual, a mentally
incapacitated individual, or a physically helpless
(3) engage in sexual contact with another if the victim is
under the age of 14 years, and the person performing the
sexual contact is at ...