383 F.

3d 144

Khaimraj SINGH Petitioner

v.
John ASHCROFT, Attorney General of the United States of
America.
No. 03-1532.

United States Court of Appeals, Third Circuit.

Argued June 28, 2004.
Decided September 17, 2004.

Petition for review from the Board of Immigration Appeals.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL
OMITTED James J. Orlow, David Kaplan (Argued), Orlow & Orlow,
Philadelphia, for Petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division, David V.
Bernal, Assistant Director, Anthony P. Nicastro (Argued), Trial Attorney,
Christopher C. Fuller, Lyle D. Jentzer, United States Department of
Justice, Office of Immigration Litigation, Washington, DC, for
Respondent.
Before: AMBRO, BECKER and GREENBERG, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.

Khaimraj Singh, a Guyanan national, petitions for review of a final order of

removal grounded upon the determination that he is an aggravated felon on
account of his conviction for touching the breast of his cousin, who was under
sixteen years of age. The offense of conviction was 11 Del. C. 767,
"Unlawful sexual contact in the third degree," which provides:

A person is guilty of unlawful sexual contact in the third degree when the
person has sexual contact with another person or causes the victim to have
sexual contact with the person or a third person and the person knows that the

contact is either offensive to the victim or occurs without the victim's consent.
3

The question presented on this petition for review-whether Singh has been
convicted of the aggravated felony of "sexual abuse of a minor," 8 U.S.C.
1101(a)(43)(A)-turns on whether we must apply the so-called "formal
categorical approach" announced in Taylor v. United States, 495 U.S. 575, 110
S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, an adjudicator "must
look only to the statutory definitions of the prior offenses," and may not
"consider other evidence concerning the defendant's prior crimes," including,
"the particular facts underlying [a] conviction[ ]." Id. at 600, 110 S.Ct. 2143. If
we apply the formal categorical approach, Singh has not been convicted of the
aggravated felony of sexual abuse of a minor because 767 does not contain an
element specifying the age of the victim. If we do not apply the formal
categorical approach, Singh has been convicted of the aggravated felony of
sexual abuse of a minor because the victim of his sex offense was, indeed, a
minor.

Our jurisprudence in the aggravated felony area-twelve cases in all-is not a

seamless web. In order to resolve the appeal we have found it necessary to
analyze and synthesize this body of case law, and we do so at length, see infra
Part III.B. As will appear, a pattern emerges, causing us to conclude that, while
the formal categorical approach of Taylor presumptively applies in assessing
whether an alien has been convicted of an aggravated felony, in some cases the
language of the particular subsection of 8 U.S.C. 1101(a)(43) at issue will
invite inquiry into the underlying facts of the case, and in some cases the
disjunctive phrasing of the statute of conviction will similarly invite inquiry
into the specifics of the conviction. But in this case, neither 8 U.S.C. 1101(a)
(43)(A) nor 11 Del. C. 767 invite inquiry into the facts underlying Singh's
conviction. Therefore, because Taylor' s formal categorical approach applies to
Singh's case, we will grant the petition for review.

5 Factual Background and Proceedings Before the Immigration Judge and Board of
I.
Immigration Appeals
6

Singh is a native and citizen of Guyana. He was admitted to the United States
in June 1988 as an immigrant. About ten years later, he touched the breast of
his cousin, who was under the age of sixteen. For this, the State of Delaware
charged him under 11 Del. C. 768, "Unlawful sexual contact in the second
degree." Apparently as part of a plea agreement with the state prosecutor, Singh
pled guilty to the lesser included offense of 11 Del. C. 767, "Unlawful sexual
contact in the third degree." On May 19, 1998, the Delaware Superior Court
imposed a one-year suspended sentence.

This conviction, the government asserts, renders Singh an aggravated felon

under 8 U.S.C. 1101(a)(43)(A), which provides that "sexual abuse of a minor"
is an aggravated felony.1 Under 8 U.S.C. 1227(a)(2)(A)(iii), an alien
convicted of an aggravated felony is removable. The Immigration Judge (IJ)
agreed with the government's position, noting that "the sentencing order of the
[Delaware] Court reflects clearly, under special conditions of probation, `note:
victim is under 16 years of age.'" Citing 18 U.S.C. 3509(2) (which defines the
age of majority as 18), the IJ explained that "the victim was under 16 years of
age and, consequently, would be classified as a minor." The IJ then looked to
18 U.S.C. 3509(8) for the definition of "sexual abuse," which includes
"sexually explicit conduct":

The term sexually explicit conduct includes touching of one's breast under [18
U.S.C. 3509(9)(A)]. Consequently, the Court finds that the respondent has
engaged in sexually explicit conduct of a child. Likewise, the Court would find
that the respondent's conviction, notwithstanding the fact that the age of the
victim is not specifically designated in the statute, has indeed ... engaged in
sexual abuse of a minor as defined in Title 18.

The Board of Immigration Appeals (BIA) affirmed the IJ's decision without
opinion. See 8 C.F.R. 1003.1(e)(4).2 Under 8 U.S.C. 1252(a)(2)(C) and our
decision in Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir.2001), we have
jurisdiction to consider our jurisdiction over this timely petition for review of a
final decision of the BIA.

II. Standard of Review

10

This case turns on a question of statutory interpretation-specifically, the

meaning and application of the aggravated felony of "sexual abuse of a minor."
As we noted in Patel v. Ashcroft, 294 F.3d 465, 467 (3d Cir.2002), "there is
some confusion surrounding the proper standard of review in cases such as
this." Patel, which was an aggravated felony case, discusses at length the role
of Chevron deference in cases interpreting the Immigration and Nationality Act
(INA) generally, and the aggravated felony statute of 8 U.S.C. 1101(a)(43) in
particular. In our most recent aggravated felony case, we described the scope of
our Chevron deference thus:

11

"The first step in interpreting a statute is to determine `whether the language at

issue has a plain and unambiguous meaning with regard to the particular dispute
in the case.'" [Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir.2002)] (quoting
Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir.2001)). If the statutory
meaning is clear, our inquiry is at an end. Id. If the statutory meaning is not

clear, we must try to discern Congress' intent using the ordinary tools of
statutory construction. See INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107
S.Ct. 1207, 94 L.Ed.2d 434 (1987). "If, by employing traditional tools of
statutory construction, we determine that Congress' intent is clear, that is the
end of the matter." Valansi, 278 F.3d at 208 (quoting Bell v. Reno, 218 F.3d 86,
90 (2d Cir.2000)). If we are unable to discern Congress' intent using the normal
tools of statutory construction, we will generally give deference to the Board's
interpretation, so long as it is reasonable. Id.
12

Lee v. Ashcroft, 368 F.3d 218, 222 (3d Cir.2004).

13

Canvassing the dozen aggravated felony cases decided by this Court, one
indisputable and surprising pattern emerges: We have never affirmatively
deferred to an interpretation by the BIA (or an IJ) of 8 U.S.C. 1101(a)(43),
i.e., of whether the crime at issue constitutes an aggravated felony. Many times
we have not even discussed Chevron deference to the BIA, irrespective of
whether we ultimately agreed or disagreed with the Board. See Munroe v.
Ashcroft, 353 F.3d 225 (3d Cir.2003); Wilson v. Ashcroft, 350 F.3d 377 (3d
Cir.2003); Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir.2002); United States v.
Graham, 169 F.3d 787 (3d Cir.1999). We also have suggested that we conduct
de novo review because the question goes to our jurisdiction. See Nugent v.
Ashcroft, 367 F.3d 162, 165 (3d Cir.2004); Valansi, 278 F.3d at 207-08 (citing
cases). Twice we have declined to reach the question of deference because we
concluded that our result would be the same on deferential review as it would
on plenary review. See Patel, 294 F.3d at 468; Drakes v. Zimski, 240 F.3d 246,
251 (3d Cir.2001). In two cases, we acknowledged that we must defer to the
BIA if the statute's meaning is ambiguous, but both times we held that the
BIA's interpretation conflicted with the statute's plain meaning. See Lee, 368
F.3d at 224-25; Valansi, 278 F.3d at 208. In yet another case we affirmatively
held that the BIA's interpretation of 18 U.S.C. 16, which is incorporated by
reference in the aggravated felony statute, 8 U.S.C. 1101(a)(43)(F), was not
subject to the general principles of Chevron, but that, even if it was, the specific
interpretation at issue was unreasonable and therefore not entitled to deference.
See Francis v. Reno, 269 F.3d 162, 168 & n. 8 (3d Cir.2001). Finally, two
decisions appear to be more deferential to the BIA. In Gerbier v. Holmes, 280
F.3d 297, 310 (3d Cir.2002), we found the BIA's interpretation "persuasive"
(hardly a strong general endorsement), while in Steele v. Blackman, 236 F.3d
130, 133 (3d Cir.2001), we stated that "if a statute administered by the INS is
ambiguous, and the BIA has provided a reasonable interpretation of its
language, we must simply ask whether the BIA's construction is a permissible
one." Even in Steele, however, we looked more closely into the BIA's
interpretation, finding it "troublesome," but we "assume [d] its validity"

because even the BIA's own interpretation of the statute did not support its
disposition of the case. 236 F.3d at 136 & n. 5.
14

Why then have we never found it necessary and appropriate to defer to the
BIA's or IJ's interpretation of 8 U.S.C. 1101(a)(43)? First, as we explained in
Francis, the interpretation and exposition of criminal law is a task outside the
BIA's sphere of special competence. See 269 F.3d at 168; see also Drakes, 240
F.3d at 250 ("Chevron [U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)] deference is not required
where the interpretation of a particular statute does not `implicate[ ] agency
expertise in a meaningful way' but presents instead `a pure question of statutory
construction for the courts to decide.'" (quoting Sandoval v. Reno, 166 F.3d
225, 239-40 (3d Cir.1999) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,
446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987))) (alteration in original)). Second,
we have been mindful, as in Nugent, 367 F.3d at 165, and Valansi, 278 F.3d at
207-08, that although the statute is part of Title 8, and not Title 28, of the
United States Code, it nonetheless controls our jurisdiction (via 8 U.S.C.
1252(a)(2)(C)) and we normally consider jurisdictional matters de novo.
Moreover, here the IJ offered no reason for his decision not to apply Taylor' s
categorical approach; the BIA, by affirming without opinion, gave no
considered and authoritative agency-wide interpretation of the statute; and now
on petition for review, the government's entire position on deference consists of
a single citation to an admittedly vague comment from this Court in Patel, 294
F.3d at 467 ("[S]ome deference is still required under Chevron, even though we
are reviewing a purely legal question such as the BIA's interpretation of a
criminal statute."). Under all these circumstances, we conclude that the IJ's
summary application of 1101(a)(43)(A)-it can hardly be described as a fullblown reasoned interpretation-is not entitled to deference. As we have done in
previous cases, however, we will here expressly reserve decision on whether
some BIA interpretations of 1101(a)(43) are entitled to deference.

III. Discussion
15

Some of our cases interpreting 8 U.S.C. 1101(a)(43) have employed the rule
of Taylor, described there as the "formal categorical approach," 495 U.S. at
600, 110 S.Ct. 2143. See, e.g., Francis, 269 F.3d at 171-72. Taylor addressed
the meaning and application of the term "burglary" in 18 U.S.C. 924(e),
which imposes enhanced sentences on defendants convicted under the
unlawful-possession-of-a-firearm statute, 18 U.S.C. 922(g), when the
defendant has three prior convictions for specified offenses, including
"burglary." Taylor' s analysis can be readily imported here, because 8 U.S.C.
1101(a)(43) is similar to 18 U.S.C. 924(e) in that it too enumerates offenses,

conviction of which places an alien in the category of "aggravated felon."

Taylor put the "general issue" in interpreting this sort of statute as follows:
16

whether the sentencing court in applying 924(e) must look only to the
statutory definitions of the prior offenses, or whether the court may consider
other evidence concerning the defendant's prior crimes. The Courts of Appeals
uniformly have held that 924(e) mandates a formal categorical approach,
looking only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.

17

495 U.S. at 600, 110 S.Ct. 2143. Citing "the practical difficulties and potential
unfairness [to a defendant] of a factual approach," id. at 601, 110 S.Ct. 2143,
the Taylor Court adopted the "formal categorical approach."

18

The facts of Taylor provide an apt illustration of the principle at work: Taylor
had been twice convicted of second degree burglary in Missouri. Under
Missouri law, second degree burglary encompassed several discrete sets of
statutory elements. As the Court explained, "All seven offenses required entry
into a structure, but they varied as to the type of structure and the means of
entry involved." Id. at 578 n. 1, 110 S.Ct. 2143. Compared with the definition
of "generic burglary" adopted by the Court-"convict[ion] of any crime,
regardless of its exact definition or label, having the basic elements of unlawful
or unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime," id. at 599, 110 S.Ct. 2143-not all variants of Missouri second
degree burglary qualified under the federal sentencing enhancement statute.
Since the formal categorical approach does not permit looking beyond the
literal elements of the statute (i.e., to the facts supporting the convictions), the
Court could not say that Taylor had been previously convicted of crimes
encompassing the elements of generic burglary. See id. at 602, 110 S.Ct. 2143.
Accordingly, the Court remanded for further development on the question of
"which of [the Missouri second degree burglary] statutes were the bases for
Taylor's prior convictions." Id. The inquiry was limited to the statute of
conviction, however, as the formal categorical approach "generally requires the
trial court to look only to the fact of conviction and the statutory definition of
the prior offense." Id. The Taylor Court also acknowledged that, under limited
circumstances, resort to the charging instrument may be permissible: "[The
formal categorical approach] may permit the sentencing court to go beyond the
mere fact of conviction in a narrow range of cases where a jury was actually
required to find all the [necessary] elements." Id.

19

The questions presented in this case are readily apparent: Does Taylor' s formal
categorical approach apply to "sexual abuse of a minor" under 8 U.S.C.

1101(a)(43)(A), and if it does, does a conviction under 11 Del. C. 767

nonetheless qualify as a conviction for sexual abuse of a minor? We find it
more efficient to address the second question first.
20

A. Under the Formal Categorical Approach of Taylor, Does a Conviction

Under 11 Del. C. 767 Qualify as a Conviction for "Sexual Abuse of a
Minor"?

21

The government first argues that, even under the formal categorical approach, a
conviction under 11 Del. C. 767 is a conviction for sexual abuse of a minor.
To evaluate this argument, we follow the Supreme Court's two-step approach in
Taylor, where it first construed the term "burglary" in the federal statute, 495
U.S. at 590-99, 110 S.Ct. 2143, and then compared the elements of the
Missouri statutes to the federal definition, id. at 602, 110 S.Ct. 2143. The IJ
looked to 18 U.S.C. 3509(2), (8), and (9) to define "sexual abuse of a minor."
While we have no quarrel with this approach, it is unnecessary for our purposes
to give a comprehensive definition of "sexual abuse of a minor," and we reserve
decision on that question. It is sufficient to say that "sexual abuse of a minor"
entails some conduct involving a minor, i.e., someone under the age of
eighteen.

22

This is enough to defeat the government's argument, for 767 says nothing
whatsoever about the age of the victim. In full, the statute under which Singh
was convicted reads:

23

A person is guilty of unlawful sexual contact in the third degree when the
person has sexual contact with another person or causes the victim to have
sexual contact with the person or a third person and the person knows that the
contact is either offensive to the victim or occurs without the victim's consent.

24

Since a finding of the age of the victim is not required for conviction, 767
does not appear to be an aggravated felony (or at least not the aggravated felony
of sexual abuse of a minor).

25

In the face of the literal and unambiguous text of 767, the government argues
that the statute nonetheless criminalizes sexual abuse of a minor. Of course it is
irrelevant that sexually abusing a minor may be sufficient for conviction under
the statute; what matters is whether such conduct is necessary for such a
conviction. The government seems to argue that the overall statutory scheme in
Delaware establishes that sexual abuse of a minor is necessary for a conviction
under 767. Even assuming that appeals to statutes other than the statute of

conviction are within the bounds of the formal categorical approach, we still
cannot agree with the government's position.
26

10 Del. C. 922(a)(19) provides the Delaware Family Court with exclusive

original criminal jurisdiction over "unlawful sexual conduct in the third degree
against a child under 11 Del. C. 767." Similarly, 11 Del. C. 1112(b)(4)(A)
defines "sexual offender" as a person who has been convicted of "any sexual
offense upon a child under 16 years of age under 767, 768, 769, 770,
771, 772, 773...." The government would have us read these provisions as
definitions of 767. We do not agree. There are at least two problems with the
government's approach. First, "against a child" and "upon a child," in 10 Del.
C. 922(a)(19) and 11 Del. C. 1112(b)(4)(A), respectively, are better read
not as definitions of Del.Code Ann. tit. 11, 767, but rather as qualifications or
limitations on the 767 convictions that are intended to be within the scope of
the jurisdictional and sex offender statutes. Unless these phrases are read as
qualifiers, they are superfluous-why not, in 1112(b)(4)(a), simply omit "upon
a child under 16 years of age" if the statutes referred to already incorporate
such a notion?

27

A second and independent problem with the government's proposed reading is

that it leads to absurdities elsewhere in the statutory scheme. For example, 11
Del. C. 767-773 are the gamut of traditional sex offenses under Delaware
law, from misdemeanor sexual assault to first degree rape. Adopting the
government's argument would imply not only that 767 is an offense against a
child, but also that 768-773 are as well. This would have the astonishing
result that all sex offenses in Delaware (as Delaware does not define any
general sex offenses outside this list) require that the victim be a child. These
problems only reinforce our conclusion from the plain meaning of the statute:
11 Del. C. 767 does not include as an element that the victim be a minor, and
accordingly, under the formal categorical approach of Taylor, Singh does not
stand convicted of sexual abuse of a minor.

28

B. Does the Formal Categorical Approach of Taylor Apply to the Aggravated

Felony of "Sexual Abuse of a Minor"?

29

Because the IJ's decision cannot stand if we apply Taylor' s formal categorical
approach, we must turn to the government's fallback argument that the formal
categorical approach does not apply to "sexual abuse of a minor" under 8
U.S.C. 1101(a)(43)(A). If the government is free from the strictures of the
formal categorical approach, we would simply review the IJ's decision under
the deferential substantial evidence standard, evaluating whether the factual
record before the IJ could fairly support the conclusion that Singh was

convicted of sexual abuse of a minor. See Dia, 353 F.3d at 247-49 (describing
the substantial evidence standard). As the record supports this conclusionindeed, Singh concedes that, as a factual matter, he was convicted for touching
the breast of his minor cousin-we would dismiss the petition if the formal
categorical approach did not apply here. But for the reasons that follow, we
conclude that the formal categorical approach does apply.
30

1. Our prior aggravated felony jurisprudence

31

We have decided a dozen cases implicating 8 U.S.C. 1101(a)(43), and at

times we have applied the formal categorical approach of Taylor, and at other
times we have not. (In the latter instances, though we have never explicitly
considered and rejected Taylor' s approach, our decisions cannot be fairly read
as employing the formal categorical approach.) The question here, then, is
whether sexual abuse of a minor under 8 U.S.C. 1101(a)(43)(A) is more akin
to those provisions of 8 U.S.C. 1101(a)(43) to which we have applied the
formal categorical approach, or to those to which we have not. We begin with a
comprehensive survey of this Court's aggravated felony jurisprudence. The
United States Supreme Court has not decided any case involving 8 U.S.C.
1101(a)(43), so we consider only our own cases in this survey. Three of the
twelve cases we have decided, see supra Part II, do not even implicitly involve
the question whether to use Taylor' s formal categorical approach.3 Thus, in the
sections that follow, we address the other nine cases, which all (explicitly or
implicitly) take a position on Taylor' s applicability.

a. Cases employing the formal categorical approach of Taylor

32

We expressly invoked and applied Taylor' s formal categorical approach in

Francis. There, the question presented was whether "a state misdemeanor
conviction for vehicular homicide is a `crime of violence' within the meaning
of 18 U.S.C. 16," 269 F.3d at 164, which is incorporated by reference in the
definition of "aggravated felony," 8 U.S.C. 1101(a)(43)(F). We concluded
that the petitioner's conviction was not a crime of violence under 18 U.S.C.
16, and therefore that he was not an aggravated felon. Although we were able to
reach this result on an analysis of 18 U.S.C. 16 that did not implicate Taylor,
Francis, 269 F.3d at 168-71, we also held in the alternative that, under the
formal categorical approach, Francis's conviction did not satisfy 18 U.S.C.
16(b)'s requirement that a crime of violence be one that, "by its nature, involves
a substantial risk that physical force against the person or property of another
may be used in the course of committing the offense."

33

We explained that under the formal categorical approach,

34

we must look to Pennsylvania's definition of homicide by vehicle.... 75

Pa.C.S.A. 3732 provides:

35

Any person who unintentionally causes the death of another person while
engaged in the violation of any law of this Commonwealth or municipal
ordinance applying to the operation or use of a vehicle or to the regulation of
traffic except section 3731 (relating to driving under influence of alcohol or
controlled substance) is guilty of homicide by vehicle, a misdemeanor of the
first degree, when the violation is the cause of death.

36

75 Pa.C.S.A. 3732.
Francis, 269 F.3d at 171-72. We continued:

37

On its face, homicide by vehicle is certainly not an offense that "by its nature,
involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense." 18 U.S.C.
16(b). The BIA acknowledged that 3732 involves a range of behavior that
"may or may not" fall under 16(b).

38

The categorical approach does "permit the sentencing court to go beyond the
mere fact of conviction in a narrow range of cases where a jury was actually
required to find all the elements of [the relevant] generic [offense]." Taylor,
495 U.S. at 602, 110 S.Ct. 2143. Here, the criminal complaint stated:

39

Southbound on Route 95 in the vicinity of Comly Street the defendant

unintentionally caused the death of the decedent # 1 Harry B. Rutter, Driver of
vehicle # 1, by operating a 1985 Chevrolet Caprice, Pa. License ADB 7268,
while his operating privilege was suspended, and in such a manner as to cause
a eight vehicle accident between four cars, one van, and three tractor trailers
and a near miss by a tanker truck carrying 8000 gallons of gasoline, causing the
deaths of two people and injuring a third.

40

(emphasis added).

41

Francis was therefore charged with the "unintentional" conduct, of operating an

automobile in such a manner as to cause a car accident resulting in two deaths.

42

Id. at 172 (some citations omitted).

43

As Francis's predicate "violation of [the] law" for purposes of 75 Pa. Cons.Stat.

3732 was driving with a suspended license, and not something that "by its
nature, involves a substantial risk [of] physical force," 18 U.S.C. 16(b), we
could not agree with the BIA that his offense was a crime of violence.
Significantly, we disagreed with the BIA's conclusion that Francis's conduct
involved a substantial risk of physical force because it was reckless, stating: "It
may well have been [reckless]. However, recklessness was not charged, and he
was not convicted of an offense requiring that mens rea." Francis, 269 F.3d at
173. In sum, the BIA reasoned from the facts supporting Francis's conviction,
but we felt constrained to grant the petition for review by applying Taylor' s
formal categorical approach and confining our inquiry to the statute of
conviction, illuminated by the charging instrument.

44

Three other cases Steele, Gerbier, and Wilson apply Taylor through their
use of the "hypothetical federal felony" (or "hypothetical federal conviction")
approach.4 This method was developed by the BIA in applying 8 U.S.C.
1101(a)(43)(B), which categorizes as an aggravated felony "illicit trafficking in
a controlled substance (as defined in section 802 of Title 21), including a drug
trafficking crime (as defined in section 924(c) of Title 18)." In Steele, our first
case to examine the hypothetical federal felony approach, we explained it this
way:

45

Section 924(c)(2) of Title 18 defines "drug trafficking crime" as meaning "any

felony punishable under the Controlled Substance Act[,] ... the Controlled
Substance Import and Export Act[s]... or the Maritime Drug Law Enforcement
Act...." Accordingly, the BIA finds within [this] category of aggravated felony
convictions any federal conviction for a violation of one of the specified
statutes that is a felony conviction under federal law, i.e., a conviction for an
offense punishable by imprisonment for over one year. See 18 U.S.C. 3559.
More relevant for present purposes, the BIA understands this ... category to
encompass convictions for state offenses, however characterized by the state, if
those offenses would be "punishable" under one of the three specified federal
statutes if federally prosecuted, so long as the hypothetical federal conviction
would be a felony under federal law, i.e., would be punishable by a term of
imprisonment of over one year.

46

This hypothetical federal conviction approach "require[s] a comparison

between the elements of the [state] drug offense and [the elements of] a federal
drug provision referenced in 18 U.S.C. 924(c)(2)...." Matter of Davis, 20 I. &
N. Dec. 536, 544, 1992 WL 443920 (BIA 1992). Since the basis for the
incapacities under the Immigration Act is "convict[ion] of an aggravated

felony," 8 U.S.C. 1229b(a), the Board looks to what the convicting court
must necessarily have found to support the conviction and not to other conduct
in which the defendant may have engaged in connection with the offense. Thus
where, as here, the Service is relying on a state misdemeanor conviction, the
requirements of this ... category of "aggravated felony convictions" are
"satisfied [only] by proving a conviction that includes all the elements of [a
felony] offense for which an alien `could be convicted and punished' under the
cited federal laws." Matter of Barrett, 20 I. & N. Dec. 171, 174, 1990 WL
385754 (BIA 1990).
47

Steele, 236 F.3d at 135-36 (some alterations in original). The hypothetical

federal felony approach is essentially the formal categorical approach of
Taylor, as applied to a specific federal statute.

48

Though we did not actually approve the hypothetical federal felony approach in
Steele, we accepted it arguendo, because even it did not support the BIA's
disposition-the proposed hypothetical federal felony required a finding of an
additional, prior drug conviction, a prior conviction that, though existing in
fact, had not been proven in the course of Steele's state criminal proceedings. Id.
at 137. We thus granted Steele's petition for review. A little over a year later, in
Gerbier, we did adopt the BIA's hypothetical federal felony approach to 8
U.S.C. 1101(a)(43)(B). 280 F.3d at 308-11. But as in Steele, Gerbier's status
as a recidivist had not been litigated or otherwise decided in his state criminal
proceeding, and we therefore granted his petition for review. Id. at 317.

49

In Wilson, 350 F.3d 377, the third case in our hypothetical-federal-felony

trilogy, we again granted the petition for review. There, the proposed
hypothetical federal felony-21 U.S.C. 841(a)(1), which is the general federal
felony criminal prohibition on unauthorized manufacture, distribution, and
possession with intent to distribute of controlled substances-included an escape
clause making distribution of "a small amount of marihuana for no
remuneration" a misdemeanor. See 21 U.S.C. 841(b)(1)(D) and (b)(4).
Wilson had possessed with the intent to distribute a small amount of marijuana,
a misdemeanor under N.J. Stat. Ann. 2C:35-5(b)(11).5 Wilson, 350 F.3d at
381. He argued to this Court that, because his state conviction did not
necessarily imply that he sought remuneration for his distribution, it could not
therefore be shown that his conduct would have been a felony under federal
controlled substance law-he might have been able to invoke the escape clause.
Id.

50

The government countered that Wilson's conviction was for possession, not
distribution (though both distribution and possession-with-intent were included

in New Jersey's law, see supra note 5), and that he therefore would not have
been eligible for the escape clause. We rejected the government's invitation to
look beyond the New Jersey statute itself, citing Steele and Gerbier for the
proposition that "in evaluating whether a state violation is analogous to a
federal felony, we look to the elements of the statutory state offense, not to the
specific facts." Wilson, 350 F.3d at 381. "Since the state statutory elements
would be satisfied by proof of either distribution or possession with intent to
distribute, we cannot draw the federal analogy by presuming that the statute
only covers possession." Id. at 382. Wilson may thus represent the zenith of our
faithfulness to Taylor.
51

Two other cases also follow Taylor' s formal categorical approach-though only
silently (in the case of Bovkun) or weakly (in the case of Drakes). Although we
did not cite Taylor in Bovkun, we plainly followed the formal categorical
approach. There, the petitioner had been convicted of making terroristic threats
under Pennsylvania law,6 and the government sought to classify him as an
aggravated felon under 8 U.S.C. 1101(a)(43)(F) (incorporating 18 U.S.C.
16 by reference), for committing "a crime of violence."7 Bovkun argued that
"mere public inconvenience" would not qualify as a crime of violence, but we
rejected his argument because it confused the actus reus of the offense ("threat[
] to commit a crime of violence") and the mens rea ("with intent to ... or
reckless disregard of ..."). Bovkun, 283 F.3d at 170. We held that it was the
actus reus of the state offense that had to be aligned with the federal statute, and
on that basis we concluded that a Pennsylvania conviction for making
terroristic threats was a crime of violence as defined in 18 U.S.C. 16.

52

Finally, in Drakes, we considered 8 U.S.C. 1101(a)(43)(R), which classifies

as an aggravated felony "an offense relating to ... forgery." Though the facts
were not entirely clear, the petitioner had been convicted of second-degree
forgery under Delaware law in connection with providing a false name to the
Delaware State Police during a traffic stop.8 As noted above, see supra Part
III.A (discussing Taylor' s two-step approach), Taylor requires both
interpretation of the federal statute describing the offense, and a comparison
with the statute of criminal conviction. Though most of our aggravated felony
cases have turned on the second step, Drakes concentrated more on the first. In
Drakes, we discussed at length the meaning of "forgery" in 8 U.S.C. 1101(a)
(43)(R). See 240 F.3d at 248-50. Upon determining that "Congress evidenced
an intent to define forgery in its broadest sense," id. at 249, it became easy to
conclude that 11 Del. C. 861 came within the wide sweep of the offenses
described in 8 U.S.C. 1101(a)(43)(R), see Drakes, 240 F.3d at 250. Thus
Drakes only briefly touched on Taylor' s second step-the formal categorical
approach as we have been discussing it.

b. Cases not employing the formal categorical approach of Taylor

53

We turn now to the cases in which we did not confine ourselves to the formal
categorical approach of Taylor. All three such cases Nugent, Munroe, and
Valansi concerned 8 U.S.C. 1101(a)(43)(M)(i), which defines as an
aggravated felony an offense that "involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000." In all three cases, the relevant criminal
statute did not include a "loss greater than $10,000" element. See Nugent, 367
F.3d at 168 n. 2 (quoting 18 Pa. Cons.Stat. 3922(a)9 ); Munroe, 353 F.3d at
226 (citing N.J. Stat. Ann. 2C:20-410); Valansi, 278 F.3d at 210 (quoting 18
U.S.C. 65611).12 Yet in these cases we expressly rested our holding on the
underlying facts about the amount of loss involved: In Nugent, 367 F.3d at 169,
the bad check at issue was in the amount of $4831.26 (and thus insufficient to
support the aggravated felony classification); in Munroe, 353 F.3d at 226,
several bad checks written by the petitioner totaled in excess of $10,000 (and
thus were sufficient to support the aggravated felony classification).

54

Valansi, in which the petitioner had embezzled over $400,000 in cash and
checks in her capacity as a bank teller, 278 F.3d at 205, bears further
discussion. The monetary threshold was clearly reached in Valansi. See 278
F.3d at 209 ("Valansi does not dispute that her conviction satisfies the $10,000
monetary requirement."). The case turned instead on whether Valansi's crime
"involve[d] fraud or deceit." In an extensive discussion of 18 U.S.C. 656, the
Court focused on the mens rea requirement that had been judicially imposed on
the statute: The embezzler must do so "with the intent to injure or defraud the
bank." Valansi, 278 F.3d at 210 (citing United States v. Schoenhut, 576 F.2d
1010, 1024 (3d Cir.1978) (citing United States v. Schmidt, 471 F.2d 385 (3d
Cir.1972))). We held that this disjunctive mens rea requirement-either intent to
defraud or intent to injure suffices-put the statute with one foot in 8 U.S.C.
1101(a)(43)(M)(i) and one foot out:

55

The plain meaning of 1101(a)(43)(M)(i) defines an aggravated felony as an

offense that has fraud or deceit as at least one required element. Some but not
all convictions under 18 U.S.C. 656 qualify as an aggravated felony under
that definition: a conviction for embezzlement with specific intent to defraud
qualifies as an offense involving fraud or deceit, and thus an aggravated felony;
a conviction with only the specific intent to injure does not.

56

Valansi, 278 F.3d at 217.

57

Under a strict reading of Taylor' s formal categorical approach, this would be

the end of the story, because a conviction under 18 U.S.C. 656 does not
necessarily establish fraudulent intent any more than Singh's conviction under
11 Del. C. 767 necessarily establishes sexual abuse of a minor (because, after
all, some but not all convictions under 11 Del. C. 767 involve a minor
victim). The Valansi panel went on, however:
58

We have cautioned that where "a criminal statute on its face fits the INA's
deportability classification ... [,][t]o go beyond the offense as charged and
scrutinize the underlying facts would change our inquiry from a jurisdictional
one into a full consideration of the merits. Such an approach would fly in the
face of the jurisdiction limiting language of IIRIRA." Drakes, 240 F.3d at 24748. However, in this case we have determined that the criminal statute does not
fit squarely within the INA's deportability classification because some, but not
all, of the convictions under 18 U.S.C. 656 qualify as offenses involving fraud
or deceit. Because we are unable to determine from the face of the statute
whether Valansi's conviction is among those that qualify as an aggravated
felony, we must take the additional step of examining the underlying facts to
determine whether Valansi pled guilty to an offense involving fraud or deceit.

59

Valansi, 278 F.3d at 214 (alterations in original). Ultimately, we concluded that

60

[i]n Valansi's case, the specific intent to defraud was not established. It appears
that Valansi was counseled to avoid admitting to that intent, and the plea
colloquy fails to pin down the mens rea element sufficiently for us to conclude
that Valansi acted with the intent to defraud rather than to injure her employer.

61

Id. at 217. Accordingly, we granted the petition for review.

62

In dissent, Judge Scirica concluded that embezzlement under 18 U.S.C. 656 is

always a crime of fraud or deceit, and therefore had no need to analyze the
intent-to-defraud/intent-to-injure distinction. While this seems more consistent
with the formal categorical approach of Taylor, Judge Scirica's dissent still
relies on (1) the plea colloquy (to establish that Valansi committed
embezzlement, and not "abstract[ion], purloin[ing], or ... misappli [cation]"),
and (2) the factual record (to establish the fiduciary relationship between
Valansi and her employing bank necessary to satisfy his definition of
embezzlement). Both steps are beyond the strict scope of Taylor' s categorical
approach. Thus, whatever disagreements there were within the panel in
Valansi, all agreed that the case required a look beyond the literal elements of
18 U.S.C. 656.

c. A governing principle?
63
64

Our survey complete, the question we now pose is whether these decisionssome applying Taylor, some not-can be reconciled under a governing principle.
We believe that they can. As Taylor itself demonstrates, there are two facets to
these cases: the federal statute enumerating categories of crimes on the one
hand (the "enumerating statute"), and the criminal statute of conviction,
whether federal or state, on the other (the "statute of conviction"). While
Taylor' s formal categorical approach presumptively applies in comparing the
two, under certain conditions, both the enumerating statute and the statute of
conviction can require a departure from the formal categorical approach.

65

In the case of the enumerating statute, a departure from the formal categorical
approach seems warranted when the terms of the statute invite inquiry into the
facts underlying the conviction at issue. The qualifier "in which the loss to the
victim or victims exceeds $10,000" in 8 U.S.C. 1101(a)(43)(M)(i) is the
prototypical example-it expresses such a specificity of fact that it almost begs
an adjudicator to examine the facts at issue. This principle explains our
holdings in Nugent and Munroe. Another example would be an enumerating
statute specifying crimes "committed within the last two years." Such a statute
could not be read to cover only crimes which have "within the last two years"
as an element; instead, a court would read "within the last two years" as a
limiting provision on crimes that would otherwise qualify.

66

In contrast, cases interpreting relatively unitary categorical concepts-like

"forgery" (Drakes), "burglary" (Taylor itself) or "crime of violence" (Francis
and Bovkun) do not look to underlying facts because the enumerating statute
does not invite any such inquiry. Likewise, the hypothetical federal felony
trilogy (Steele, Gerbier, and Wilson) asks only whether the elements of a
federal criminal statute can by satisfied by reference to the actual statute of
conviction; this presents no invitation to depart from Taylor' s formal
categorical approach and examine the underlying facts.

67

Though we have little case law on point, the contrast we have described
appears to be mirrored in the references in 8 U.S.C. 1101(a)(43) to the
duration of sentences. Correcting for the scrivener's error in 8 U.S.C. 1101(a)
(43)(G), we held in Graham, 169 F.3d at 791, that that section specifies theft
and burglary offenses "for which the term of imprisonment [imposed is] at least
one year." This obviously invites an inquiry into the sentence actually imposed
on the alien, rather than a categorical inquiry into the statutory punishment for
the offense. Similarly, provisions like 8 U.S.C. 1101(a)(43)(S), which
classifies as an aggravated felony certain obstruction of justice offenses "for

which the term of imprisonment is at least one year," invites inquiry into the
alien's actual sentence. See Graham, 169 F.3d at 790-91. In contrast, provisions
like 8 U.S.C. 1101(a)(43)(J), which classifies as an aggravated felony certain
racketeering and gambling offenses "for which a sentence of one year
imprisonment or more may be imposed," seem to direct inquiry toward the
statutory sentencing scheme, not the alien's actual sentence. See Graham, 169
F.3d at 790-91.
68

Turning to the statute of conviction, there are also cases where a look into the
underlying facts-or at least the charging instrument-is called for. Valansi is a
good example of such a case: There, the statute of conviction was phrased in
the disjunctive-a mens rea of either intent to defraud or intent to injure would
suffice for conviction-which, in our view, called for an exploration of which of
the alternative elements was the actual basis for conviction. Statutes phrased in
the disjunctive are akin to, and can be readily converted to, statutes structured
in outline form, with a series of numbered or letter elements. See, e.g., statutes
cited supra notes 8-10. Such statutes may sometimes more clearly invite further
inquiry into exactly which subsection the defendant violated. The exercise of
analyzing disjunctive statutes for an invitation to further inquiry is much more
difficult than that described in the preceding paragraphs, for it poses the vexing
question of how far below the judgment or plea colloquy the court may look.
The cases are few and the jurisprudence is not clear. However, in the hope that
it may shed some light on this troublesome area, we will do our best to analyze
the problem.

69

We have used a numbered subsection of such a statute as a statute of conviction

for purposes of the Taylor inquiry. See Wilson, 350 F.3d at 381 (citing N.J.
Stat. Ann. 2C:35-5(b)(11), which specifically criminalizes marijuana). In
Wilson, however, the numbered paragraphs of 2C:35-5(b) were distinct
offenses carrying separate penalties, not alternate types of conduct that
constituted the same offense. The lesson there is that sometimes disjunctive
parts of statutes of conviction represent distinct offenses, with distinct
punishments. Where different crimes with different penalties are involved,
under the categorical approach, further inquiry is clearly invited into which
particular crime the petitioner was actually convicted of.

70

In other statutes, disjunctive wording or outline formatting simply describes

variations of the same offense, with no difference in punishment and no
distinction on the judgment of conviction. Even here, though, further inquiry
might be warranted, as we found in Valansi, because the face of the statute
might not make clear whether the conviction qualifies as an aggravated felony.
It is not clear that only those disjunctions reflected in the penalty or the

judgment of conviction are relevant for the purposes of 1101(a)(43); where

some variations of the crime of conviction meet the aggravated-felony
requisites and others do not, we have thus allowed further inquiry to see which
variation was actually committed.
71

Taylor itself, in some ways, provides an example. Taylor was convicted of

second-degree burglary under some section of Mo. Rev.Stat. 560 (1969); the
Court remanded for consideration of whether he was convicted under
560.045, .050, .055, .060, .070, .075, or .080. Taylor, 495 U.S. at 578 n. 1, 110
S.Ct. 2143. These seven separate statutory sections, each of which contained
different factual predicates for the same crime with the same penalty, are in
practice very similar to a single statute defining a crime, with seven numbered
subsections containing alternate factual predicates. And in Taylor, the Supreme
Court found that this division invited further inquiry.

72

Since any statute that is phrased in the disjunctive can be readily converted to
outline form, it would be strange to think that Congress intended the application
of the categorical approach to turn on the typography used by the statute's
drafters. Commonly, the best way to resolve the question raised by a conviction
under a statute phrased in the disjunctive, or structured in outline form, will be
to look to the charging instrument or to a formal guilty plea (as we did in
Valansi, for example). But even in such cases, we have not taken the further
step of looking to facts outside the charging instrument or further plea; we
leave for another day the question whether statutes phrased in the disjunctive
invite such inquiry beyond a charging instrument or a formal plea.

73

As suggested above, our jurisprudence is not a seamless web. In Wilson, we did

not conduct any further inquiry into the underlying facts of the conviction, even
though the statute at issue was phrased in the disjunctive. As discussed above,
the petitioner had been convicted under N.J. Stat. Ann. 2C:35-5(a)(1), which
made it unlawful "[t]o manufacture, distribute or dispense, or to possess or have
under his control with intent to manufacture, distribute or dispense, [certain
substances]." Despite this disjunctive phrasing, we declined to examine whether
Wilson had engaged in distribution or possession with the intent to distribute.
Subject to our discussion in the margin,13 this may be in tension with our earlier
decision in Valansi. But there may also be other cases in which a statute
phrased in the disjunctive would not invite further inquiry; we cannot with
great confidence draw any general rule on this point from our cases.

74

At all events, for purposes of deciding Singh's petition, we need not resolve the
matter, because Singh's statute of conviction is not phrased in the disjunctive in
a relevant way. The statute is phrased in the disjunctive, both with respect to its

actus reus (which can be either (1) sexual contact or (2) causing sexual contact)
and its mens rea (which can be either (a) knowing that the contact is offensive
to the victim, or (b) knowing that the contact occurs without the victim's
consent). But none of this gives insight into the question whether 11 Del. C.
767 constitutes "sexual abuse of a minor" because, though any combination of
actus reus and mens rea seem to suffice as the actus reus and mens rea of
"sexual abuse," the statute is silent on the critical matter of the age of the
victim.
75

2. Does the formal categorical approach apply here?

76

At long last, we come to the operative question in this case: Does Taylor's
formal categorical approach apply to 8 U.S.C. 1101(a)(43)(A) and 11 Del. C.
767? We have already indicated that Singh's statute of conviction does not
invite us to go beyond the formal categorical approach, because it is not
phrased in the disjunctive in a relevant way. Thus we must ask whether 8
U.S.C. 1101(a)(43)(A) (and specifically "sexual abuse of a minor") invites
inquiry-that is, whether it is more like the amount-of-loss provision of 8 U.S.C.
1101(a)(43)(M)(i), or more like provisions for "burglary," 8 U.S.C. 1101(a)
(43)(G), or "crime of violence," 8 U.S.C. 1101(a)(43)(F).

77

We think it clear that "sexual abuse of a minor" belongs in the latter category.
First, it is listed in the same subsection as "murder" and "rape," two terms that
share the common law pedigree of "burglary," which was examined in Taylor
itself. Applying the maxim noscitur a sociis,14 we would place "sexual abuse of
a minor" in a similar mold. Second, nothing in the phrase "sexual abuse of a
minor" signals that a factual investigation is called for. Congress could have
enacted, for example, the language "any sex offense, where the victim of such
offense was a minor"; such language, parallel to provisions like 8 U.S.C.
1101(a)(43)(G) & (S), might direct our inquiry into the facts of the crime rather
than its definition. Third, in an area that so routinely implicates state laws,
Congress is presumed to legislate against the backdrop of existing state statutes.
The widespread existence of state statutes specifically criminalizing sexual
abuse of a minor, see, e.g., Ala.Code 13A-6-67 ("Sexual abuse in the second
degree"); Cal.Penal Code 288.5 ("Continuous sexual abuse of a child"); 11
Del. C. 778 ("Continuous sexual abuse of a child"); 18 Pa. Cons.Stat. 6312
("Sexual abuse of children"), supports the conclusion that Congress intended
Taylor' s formal categorical approach to be applied in this case.

IV. Conclusion
78

In view of our conclusion in Part III.B that Taylor' s formal categorical

approach applies to "sexual abuse of a minor" under 8 U.S.C. 1101(a)(43)(A)

and 11 Del. C. 767, our analysis in Part III.A stands: Because 767 does not
establish the age of the victim, a conviction under that statute is not the
aggravated felony of sexual abuse of a minor. Because Singh has not been
convicted of an aggravated felony, we have jurisdiction and will grant the
petition for review.

Notes:
1

"Sexual abuse of a minor" is but one of the dozens of aggravated felonies

catalogued in the twenty-one subsections of 8 U.S.C. 1101(a)(43). Because
the discussion that follows in this opinion draws on many of those subsections,
we rescribe the statute in full for the convenience of the reader:
The term "aggravated felony" means
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of Title
21), including a drug trafficking crime (as defined in section 924(c) of Title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section
921 of Title 18) or in explosive materials (as defined in section 841(c) of that
title);
(D) an offense described in section 1956 of Title 18 (relating to laundering of
monetary instruments) or section 1957 of that title (relating to engaging in
monetary transactions in property derived from specific unlawful activity) if the
amount of the funds exceeded $10,000;
(E) an offense described in
(i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of
that title (relating to explosive materials offenses);
(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), ( o), (p), or (r) or 924(b) or (h)
of Title 18 (relating to firearms offenses); or
(iii) section 5861 of Title 26 (relating to firearms offenses);

(F) a crime of violence (as defined in section 16 of Title 18, but not including a
purely political offense) for which the term of imprisonment at least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for
which the term of imprisonment at least one year;
(H) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating
to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to
child pornography); (J) an offense described in section 1962 of Title 18
(relating to racketeer influenced corrupt organizations), or an offense described
in section 1084 (if it is a second or subsequent offense) or 1955 of that title
(relating to gambling offenses), for which a sentence of one year imprisonment
or more may be imposed;
(K) an offense that
(i) relates to the owning, controlling, managing, or supervising of a prostitution
business;
(ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to
transportation for the purpose of prostitution) if committed for commercial
advantage; or
(iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating
to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in
(i) section 793 (relating to gathering or transmitting national defense
information), 798 (relating to disclosure of classified information), 2153
(relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18;
(ii) section 421 of Title 50 (relating to protecting the identity of undercover
intelligence agents); or (iii) section 421 of Title 50 (relating to protecting the
identity of undercover agents);
(M) an offense that

(i) involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the
revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this
title (relating to alien smuggling), except in the case of a first offense for which
the alien has affirmatively shown that the alien committed the offense for the
purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent
(and no other individual) to violate a provision of this chapter
(O) an offense described in section 1325(a) or 1326 of this title committed by
an alien who was previously deported on the basis of a conviction for an
offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting,
mutilating, or altering a passport or instrument in violation of section 1543 of
Title 18 or is described in section 1546(a) of such title (relating to document
fraud) and (ii) for which the term of imprisonment is at least 12 months, except
in the case of a first offense for which the alien has affirmatively shown that the
alien committed the offense for the purpose of assisting, abetting, or aiding
only the alien's spouse, child, or parent (and no other individual) to violate a
provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of
sentence if the underlying offense is punishable by imprisonment for a term of
5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or
trafficking in vehicles the identification numbers of which have been altered for
which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of
perjury, or bribery of a witness, for which the term of imprisonment is at least
one year;
(T) an offense relating to a failure to appear before a court pursuant to a court
order to answer to or dispose of a charge of a felony for which a sentence of 2
years' imprisonment or more may be imposed; and

(U) an attempt or conspiracy to commit an offense described in this paragraph.

The term applies to an offense described in this paragraph whether in violation
of Federal or State law and applies to such an offense in violation of the law of
a foreign country for which the term of imprisonment was completed within the
previous 15 years. Notwithstanding any other provision of law (including any
effective date), the term applies regardless of whether the conviction was
entered before, on, or after September 30, 1996.
2

Singh also challenges the BIA's procedure for affirmance without opinion. We
approved these streamlining regulations inDia v. Ashcroft, 353 F.3d 228 (3d
Cir.2003) (en banc), which was decided after Singh filed his opening brief.
Although Dia may not dispose of Singh's nondelegation and judicial economy
arguments against the streamlining regulations, those arguments would be
better addressed to the Court en banc. At all events, our resolution of this case
on alternative grounds avoids the need to confront the novel questions raised in
Singh's challenge to the streamlining regulations.

Two of these cases-Lee and Patel -turn on whether certain federal criminal
offenses are directly identified in 8 U.S.C. 1101(a)(43). See Lee, 368 F.3d at
224 (holding that 8 U.S.C. 1101(a)(43)(M)(ii) is the exclusive category for
federal tax offenses, and thus that federal tax offenses are not covered by 8
U.S.C. 1101(a)(43)(M)(i)); Patel, 294 F.3d at 470 (holding that the reference
in 8 U.S.C. 1101(a)(43)(N) to "alien smuggling" does not overcome the
specific cross-reference in that section to statute criminalizing alien harboring,
of which petitioner had been convicted). The third case, Graham, resolves a
scrivener's error in 8 U.S.C. 1101(a)(43)(G) and implicates Taylor only
indirectly. We return to Graham infra Part III.B.1.c.

The hypothetical federal felony approach is only one "route" to classification as

an aggravated felony under 8 U.S.C. 1101(a)(43)(B); "illicit trafficking in a
controlled substance" qualifies as wellSee Gerbier, 280 F.3d at 313. In practice,
"illicit trafficking in a controlled substance" works very much like "crime of
violence" (as discussed supra in Francis), so we will discuss it no further than
to say that our decisions involving it are consistent with Taylor' s categorical
approach.

N.J. Stat. Ann. 2C:35-5(a)(1) provides that it is unlawful "[t]o manufacture,

distribute or dispense, or to possess or have under his control with intent to
manufacture, distribute or dispense, a controlled dangerous substance or
controlled substance analog." N.J. Stat. Ann. 2C:35-5(b)(11) provides that
marijuana is such a controlled substance

In full, 18 Pa. Cons.Stat. 2706 (1998) (in effect at the time of Bovkun's
conviction) provided:
A person is guilty of a misdemeanor of the first degree if he threatens to
commit any crime of violence with intent to terrorize another or to cause
evacuation of a building, place of assembly, or facility of public transportation,
or otherwise to cause serious public inconvenience, or in reckless disregard of
the risk of causing such terror or inconvenience.

In relevant part, 18 U.S.C. 16(a) defines a "crime of violence" as "an offense

that has as an element the use, attempted use, or threatened use of physical
force against the person or property of another."

In relevant part, 11 Del. C. 861 provides:

(a) A person is guilty of forgery when, intending to defraud, deceive or injure
another person, or knowing that the person is facilitating a fraud or injury to be
perpetrated by anyone, the person:
(1) Alters any written instrument of another person without the other person's
authority; or (2) Makes, completes, executes, authenticates, issues or transfers
any written instrument which purports to be the act of another person, whether
real or fictitious, who did not authorize that act, or to have been executed at a
time or place or in a numbered sequence other than was in fact the case or to be
a copy of an original when no original existed; or
(3) Possesses a written instrument, knowing that it was made, completed or
altered under circumstances constituting forgery.

In full, 18 Pa. Cons.Stat. 3922(a) provides:

A person is guilty of theft if he intentionally obtains or withholds property of
another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to
law, value, intention or other state of mind; but deception as to a person's
intention to perform a promise shall not be inferred from the fact alone that he
did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his
judgment of a transaction; or

(3) fails to correct a false impression which the deceiver previously created or
reinforced, or which the deceiver knows to be influencing another to whom he
stands in a fiduciary or confidential relationship.
10

In full, N.J. Stat. Ann. 2C:20-4 provides:

A person is guilty of theft if he purposely obtains property of another by
deception. A person deceives if he purposely:
a. Creates or reinforces a false impression, including false impressions as to
law, value, intention or other state of mind, and including, but not limited to, a
false impression that the person is soliciting or collecting funds for a charitable
purpose; but deception as to a person's intention to perform a promise shall not
be inferred from the fact alone that he did not subsequently perform the
promise;
b. Prevents another from acquiring information which would affect his
judgment of a transaction; or
c. Fails to correct a false impression which the deceiver previously created or
reinforced, or which the deceiver knows to be influencing another to whom he
stands in a fiduciary or confidential relationship. The term "deceive" does not,
however, include falsity as to matters having no pecuniary significance, or
puffing or exaggeration by statements unlikely to deceive ordinary persons in
the group addressed.

11

In relevant part, 18 U.S.C. 656 provides:

Whoever, being an officer, director, agent or employee of, or connected in any
capacity with any ... national bank ... embezzles, abstracts, purloins or willfully
misapplies any of the moneys, funds or credits of such bank ... shall be [fined
and/or imprisoned].
We also note that in Valansi's plea agreement, she stipulated (for Sentencing
Guidelines purposes) only that the value of the embezzled funds "was in excess
of $1,000." Valansi, 278 F.3d at 206.

12

Although none of these statutes has an amount-of-loss element (i.e., some

minimum threshold amount of loss that must be met for a conviction), there are
cognate statutes that doSee, e.g., Cal.Penal Code 487(a) (grand theft is
committed "[w]hen the money, labor, or real or personal property taken is of a

value exceeding four hundred dollars ($400)"); Wash. Rev.Code

9A.56.030(1)(a) (theft in the first degree is theft of "[p]roperty or services
which exceed(s) one thousand five hundred dollars in value other than a
firearm").
13

It seems that, inWilson, we declined to take the disjunctive phrasing as an

invitation to make further inquiry because the disjunctive words of N.J. Stat.
Ann. 2C:35-5(a)(1) did not differentiate between offenses for purposes of
judgment and penalty (unlike the numbered paragraphs of subsection (b) of that
statute, which carried separate penalties). As noted above, however, it is
possible that a disjunctive definition of a single offense, for state law purposes
of judgment and penalty, might nonetheless invite further inquiry for the
purposes of 1101(a)(43)'s definition of an aggravated felony.

14

"The meaning of a word is or may be known from the accompanying

words."Black's Law Dictionary 1060 (6th ed.1990).