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Thompson v. Barr

United States Court of Appeals, Fourth Circuit

April 26, 2019

OMAR JEHU THOMPSON, Petitioner,
v.
WILLIAM P. BARR, Attorney General, Respondent.

          Argued: March 19, 2019

          On Petition for Review of an Order of the Board of Immigration Appeals.

         ARGUED:

          Mark Alastair Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner.

          Walter Bocchini, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Joseph H. Hunt, Assistant Attorney General, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before WILKINSON, KEENAN, and RICHARDSON, Circuit Judges.

          Wilkinson wrote the opinion, in which Judge Keenan and Judge Richardson joined.

          WILKINSON, CIRCUIT JUDGE

         The Department of Homeland Security (DHS) instituted removal proceedings against Omar Thompson in 2016, asserting that he had committed aggravated felonies and could therefore be deported under the Immigration and Nationality Act (INA). The Board of Immigration Appeals (BIA) agreed. Thompson brought this petition, contending that his convictions for taking custodial indecent liberties with a child under Virginia Code § 18.2-370.1(A) do not qualify as aggravated felonies. For the following reasons, we deny the petition and affirm the BIA's decision.

         I.

         In 2014, petitioner Omar Thompson pled guilty to two counts of taking custodial indecent liberties with a child, a crime under Virginia law, see Va. Code § 18.2-370.1(A). The INA lists "sexual abuse of a minor" as an aggravated felony, 8 U.S.C. § 1101(a)(43)(A) (2012), and further provides that "[a]ny alien who is convicted of an aggravated felony" is deportable, § 1227(a)(2)(A)(iii). DHS argued that the offense of taking custodial indecent liberties under Virginia law constituted sexual abuse of a minor under the INA. If that is correct, it follows ineluctably that the offense is an aggravated felony within the meaning of the INA, and therefore that offenders such as Thompson are deportable. The BIA so concluded. On appeal, we review only this conclusion of law.

         In assessing whether an offense qualifies as an aggravated felony under the INA, we apply the categorical approach. See, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007) (applying to the INA the categorical approach from Taylor v. United States, 495 U.S. 575 (1990)). Under the categorical approach, the first step is identifying which crime listed in the INA is closest to the state crime at issue. See United States v. Perez-Perez, 737 F.3d 950, 952-53 (4th Cir. 2013). Here, all agree that "sexual abuse of a minor" is closest to the Virginia offense of taking custodial indecent liberties. The second step involves discerning the generic definition of the listed crime. That task has been done for us by prior case law: "under the INA, 'sexual abuse of a minor' means the 'perpetrator's physical or nonphysical misuse or ...


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