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Shroff v. Sessions

United States Court of Appeals, Fifth Circuit

May 15, 2018

ADNAN ASGAR SHROFF, Petitioner,
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL, Respondent.

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

          Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Adnan Shroff petitions for review of an order of the Board of Immigration Appeals ("BIA") deciding that his conviction of online solicitation of a minor is an aggravated felony that subjects him to removal. Because Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017), abrogates this court's previous definition of a minor in this context, we grant review, reverse, and remand.

          I.

         Shroff was admitted to the United States as a lawful permanent resident in September 2009. In June 2016, he pleaded guilty of online solicitation of a minor in violation of Texas Penal Code § 33.021(c)[1] and was given deferred adjudication with ten years of community supervision. The Department of Homeland Security initiated removal proceedings in July 2016, stating that his offense rendered him removable under the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101(a)(43)(A), for a conviction of murder, rape, or sexual abuse of a minor. Finding that Shroff's offense (1) involved a minor, (2) was sexual in nature, and (3) was abusive, the BIA determined that his conviction qualified as sexual abuse of a minor under Contreras v. Holder, 754 F.3d 286, 293-95 (5th Cir. 2014), and dismissed Shroff's appeal.

         II.

         We have no jurisdiction to review "any final order of removal against an alien who is removable by reason of having committed" an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). We do, however, review "constitutional claims or questions of law raised upon a petition for review, " such as whether a conviction qualifies as an aggravated felony. Id. § 1252(a)(2)(D); Larin-Ulloa v. Gon-zales, 462 F.3d 456, 460-61 (5th Cir. 2006).

         III.

          To determine whether a conviction under Texas Penal Code § 33.021(c) qualifies as sexual abuse of a minor, we apply the categorical approach, looking to the statute of conviction and comparing the elements to those of the generic federal offense. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The generic definition of sexual abuse of a minor employed by this court requires that conduct (1) involve a child, (2) be sexual in nature, (3) and be abusive.[2] In United States v. Rodriguez, 711 F.3d 541, 560 (5th Cir. 2013) (en banc), we defined a minor as anyone under the age of eighteen. The Texas statute defines a minor as "an individual who is younger than 17 years of age; or an individual whom the actor believes to be younger than 17 years of age." Tex. Penal Code § 33.021(a)(1).

         Shroff contends that Mathis v. United States, 136 S.Ct. 2245 (2016), nullifies this court's definition of sexual abuse of a minor. Because we already use the categorical approach to determine whether state statutes qualify as aggravated felonies for purposes of removability, this assertion is unavailing.[3]Shroff further denies that his conviction meets the generic definition of sexual abuse of a minor because no minor was involved, given that Shroff was apprehended in a sting operation by police posing as a fifteen-year-old. As the BIA noted, we have rejected that proposition and have found that the relevant question for removal purposes is whether the alien acted with the intention of sexually exploiting a minor.[4]

          IV.

          When the BIA issued its decision, the Supreme Court had not yet decided Esquivel-Quintana. Based on Esquivel-Quintana, Shroff contends that the generic definition in Zavala-Sustaita and Najera-Najera is abrogated because Esquivel-Quintana provided a generic definition of sexual abuse of a minor requiring actual sexual contact and that the minor be under sixteen.

         Examining a California statutory-rape provision, the Court found overbroad the definition of a minor as anyone under the age of eighteen. Esquivel-Quintana, 137 S.Ct. at 1568. Because the Court focused on the age requirement and did not make an express holding on the requirement of sexual contact, Esquivel-Quintana does not abrogate our holding that "a sexual act does not require physical contact with a minor ...


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