2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-9-2014

George Cadapan v. Attorney General United States

Precedential or Non-Precedential: Precedential

Docket No. 13-1944

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 PRECEDENTIAL

FOR THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-1944

_____________

GEORGE ACUPANDA CADAPAN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No.: A077-045-577)

Immigration Judge: Honorable Walter A. Durling 

Submitted under Third Circuit LAR 34.1(a)

March 3, 2014

(Opinion filed: March 20, 2014)
2

Before: RENDELL, SMITH and HARDIMAN, Circuit

Judges

Valerie A. Burch, Esquire

The Shagin Law Group

The Inns of St. Jude

120 South Street

Harrisburg, PA 17101

Counsel for Petitioner

Christina J. Martin, Esquire

Carmel A. Morgan, Esquire

United States Department of Justice

Office of Immigration Litigation, Civil Division

P. O. Box 878

Ben Franklin Station 

Washington, DC 20044

Counsel for Respondent
3

O P I N I O N

RENDELL, Circuit Judge:

Petitioner George Acupanda Cadapan, a native and 

citizen of the Philippines and a lawful permanent resident of 

the United States, petitions for review of the decision by the

Board of Immigration Appeals (“BIA”) finding him 

removable for having been convicted of an “aggravated 

felony” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 

U.S.C. § 1101(a)(43)(A). He argues that his conviction under 

the Pennsylvania indecent assault statute, 18 Pa. Cons. Stat. § 

3126(a)(7), does not qualify as an aggravated felony under 

the Immigration and Nationality Act (“INA”). For the reasons 

that follow, we disagree. Cadapan also contends that he was 

never admitted to the United States and that therefore he is 

not removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which 

applies to “an alien who is convicted of an aggravated felony 

at any time after admission.” Cadapan, however, never raised 

this argument before the BIA. Because he failed to exhaust 

his administrative remedies, we lack jurisdiction over this 

claim. We will deny Cadapan’s petition. 

I.

On August 31, 2011, following a jury trial in the Court 

of Common Pleas of Cumberland County, Pennsylvania, 

Cadapan was convicted of three offenses: (1) indecent assault 

with a person less than 13 years of age, in violation of 18 Pa. 

Cons. Stat. § 3126(a)(7); (2) indecent assault without consent, 

in violation of 18 Pa. Cons. Stat. § 3126(a)(1); and (3) 
4

corruption of minors, in violation of 18 Pa. Cons. Stat. § 

6301(a)(1). On November 29, 2011, Cadapan was sentenced 

to a term of imprisonment not less than 6 months nor more 

than 23 months; a term of imprisonment of not less than 3 

months nor more than 23 months, to run concurrently; and 

supervised probation for 36 months, respectively. On April 

11, 2012, Cadapan was granted parole by the Court of 

Common Pleas. He was transferred to the custody of the 

Department of Homeland Security (“DHS”) the next day. 

DHS charged Cadapan with removability pursuant to 8 

U.S.C. § 1227(a)(2)(A)(iii), as an alien who, after admission, 

was convicted of an aggravated felony as defined in 8 U.S.C. 

§ 1101(a)(43)(A) – specifically, sexual abuse of a minor. 

DHS also charged Cadapan with removability under 8 U.S.C. 

§ 1227(a)(2)(E)(i), as an alien convicted of a crime of child 

abuse based on his conviction for the corruption of minors 

under Pennsylvania law. Cadapan conceded removability on 

the latter charge but denied the aggravated felony charge.1 He 

argued that the Pennsylvania statute for indecent assault 

encompassed conduct that could not be considered sexual 

abuse of a minor under the federal statute. In an oral decision, 

the Immigration Judge (“IJ”) rejected this argument and 

concluded that Cadapan was removable on both grounds. The 

BIA subsequently dismissed Cadapan’s appeal. 

 

1 As noted by the BIA, even though Cadapan conceded his 

removability based on his conviction for a crime of child 

abuse, the aggravated felony issue remained relevant because 

of its impact on his eligibility for relief from removal and his 

ability to re-immigrate to the United States after removal. 

(See App. 3.)
5

II. 

We have jurisdiction over only one of the two claims 

Cadapan raises on appeal because the other is unexhausted.2

See 8 U.S.C. § 1252(d)(1) (stating that a court may review a 

final order of removal only if “the alien has exhausted all 

administrative remedies”). For the first time, Cadapan argues 

that the BIA erred in ordering him removed as an alien who 

had been admitted to the United States, see 8 U.S.C. 

§ 1227(a)(2)(A)(iii), because he was never admitted to the 

United States.3 He concedes that he never raised this 

particular issue before the IJ or BIA. We have held that “[t]he 

exhaustion requirement attaches to each particular issue 

raised by the petitioner.” Castro v. Att’y Gen., 671 F.3d 356, 

365 (3d Cir. 2012). Therefore, Cadapan’s argument regarding 

whether or not he was ever “admitted” to the United States is 

unexhausted and we lack jurisdiction to consider it. 

Cadapan’s second argument, however, is properly 

before this Court. The INA defines an aggravated felony as,

inter alia, a conviction for “murder, rape, or sexual abuse of a 

minor.” 8 U.S.C. § 1101(a)(43)(A). Cadapan argues that 

conduct that meets the federal definition of sexual abuse of a 

minor is not necessary for a conviction under the 

Pennsylvania statute for indecent assault. He therefore argues 

 

2 We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). 

3 Cadapan claims that he only entered the United States once 

as a crewman traveling with a C1 visa. He states that even 

though he later adjusted to lawful permanent resident status, 

he was never “admitted” to this country. 
6

that he did not commit an aggravated felony. For the 

following reasons we disagree. 

Because the BIA issued its own opinion, we review its 

decision rather than that of the IJ. See Li v. Att’y Gen., 400 

F.3d 157, 162 (3d Cir. 2005). We review the decision of the 

IJ, however, to the extent that the BIA deferred to or adopted 

the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 

515 (3d Cir. 2006). Our review of legal questions is de novo, 

subject to the principles of deference articulated in Chevron, 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 

U.S. 837, 844 (1984). See Catwell v. Att’y Gen., 623 F.3d 

199, 205 (3d Cir. 2010).

We apply the categorical approach in determining 

whether Cadapan’s conviction constitutes sexual abuse of a 

minor under the INA. See Restrepo v. Att’y Gen., 617 F.3d 

787, 791 (3d Cir. 2010). We proceed in two steps: “first, we 

must ascertain the definition for sexual abuse of a minor, and 

second we must compare this ‘federal’ definition to the state 

statutory offense in question.” Id. If conduct meeting the 

federal definition of sexual abuse of a minor is necessary for a 

conviction under 18 Pa. Cons. Stat. § 3126(a)(7), then 

Cadapan’s conviction under the statute “qualifies as a 

conviction for sexual abuse of a minor and, by extension, an 

aggravated felony for which he is removable.” Id.

The BIA and IJ properly turned to 18 U.S.C. §

3509(a)(8) as “a guide in identifying the types of crimes we 

would consider to be sexual abuse of minor” under 8 U.S.C. § 

1101(a)(43)(A). Id. at 796 n.10 (quoting Matter of RodriguezRodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999)). In 

Restrepo, we determined that Chevron deference was 
7

appropriate with respect to the BIA’s definition of sexual 

abuse of a minor. 617 F.3d at 796. We therefore adopted the 

BIA’s approach in Matter of Rodriguez-Rodriguez, which 

was to use § 3509(a)(8) as a reference point for what should 

be considered sexual abuse of a minor. Id. We noted that such 

an approach was reasonable because the definition set forth in 

§ 3509(a)(8) was consistent with “the commonly accepted 

definition of ‘sexual abuse’” in Black’s Law Dictionary. Id.

We also noted that Congress had intended to incorporate a 

broad range of state crimes under the umbrella of “sexual 

abuse of a minor.” Id. at 798. 

Section 3509(a)(8) defines sexual abuse as “the 

employment, use, persuasion, inducement, enticement, or 

coercion of a child to engage in, or assist another person to 

engage in, sexually explicit conduct or the rape, molestation, 

prostitution, or other form of sexual exploitation of children, 

or incest with children.” 18U.S.C. § 3509(a)(8). 

Pennsylvania’s statute for indecent assault provides, in 

relevant part, that:

A person is guilty of indecent assault if the 

person has indecent contact with the 

complainant, causes the complainant to have 

indecent contact with the person or intentionally 

causes the complainant to come into contact 

with seminal fluid, urine or feces for the 

purpose of arousing sexual desire in the person 

or the complainant and . . . (7) the complainant 

is less than 13 years of age. 

18 Pa. Cons. Stat. § 3126(a)(7). The BIA held that conduct 

covered by the Pennsylvania statute categorically qualifies as 
8

“molestation” or “sexual exploitation” of a child within the 

meaning of 18 U.S.C. § 3509(a)(8). (See App. 4.)

Cadapan mischaracterizes the BIA’s decision, stating 

that the agency “incorrectly concluded that one type of sexual 

abuse—‘molestation’—necessarily encompasses all conduct 

prohibited by Subsection (a)(7) of Pennsylvania’s indecent 

assault statute.” Appellant’s Br. 16. He neglects the BIA’s 

finding that the conduct also could be considered another 

“form of sexual exploitation of children.” 18 U.S.C. § 

3509(a)(8). Instead, Cadapan focuses on the decision of the 

IJ, which stated that under a modified categorical approach, 

all conduct falling under the “indecent contact” portion of the 

Pennsylvania statute (the portion of the statute under which 

Cadapan was convicted) qualifies as “molestation.”4 Cadapan 

 

4

The modified categorical approach is unnecessary in this 

case even though the indecent assault statute is divisible 

because all of the conduct covered by the statute constitutes 

sexual abuse of a minor. See United States v. Jones, 740 F.3d 

127, 134 (3d Cir. 2014) (holding that modified categorical 

approach is only appropriate where divisible state statute 

proscribes some conduct that falls under umbrella of federal 

statute and some that does not). The IJ erred in holding that 

the portion of the Pennsylvania statute involving “contact 

with seminal fluid, urine or feces” does not constitute sexual

abuse of a minor. In Stubbs v. Attorney General, we held that 

in order for a conviction to be classified as “sexual abuse of a 

minor,” “a past act with a child must have actually occurred.” 

452 F.3d 251, 256 (3d Cir. 2006). We concluded that because 

a New Jersey statute proscribing “engag[ing] in sexual 

conduct which would impair or debauch the morals of a 

child” did not necessarily involve a past act with a child, 
9

argues that the IJ improperly employed the Black’s Law 

Dictionary definition of molestation and that the IJ should 

have employed the definition provided in Rule 414 of the 

Federal Rules of Evidence. He says that the definition of 

molestation provided in Rule 414 is narrower and does not 

include all conduct which would be considered “indecent 

contact” under the Pennsylvania statute. In particular, 

Cadapan notes that “indecent contact” may include touching 

of “the backs of the legs . . . shoulders, neck, and back.” 

Commonwealth v. Fisher, 47 A.3d 155, 158 (Pa. Super. Ct. 

2012). In contrast, under Rule 414, there must be touching of 

“the genitalia, anus, groin, breast, inner thigh, or buttocks.” 

18 U.S.C. § 2246(3).5 Consequently, he argues that 

Cadapan’s conviction does not constitute sexual abuse of a 

minor or, by extension, an aggravated felony. 

As an initial matter, we agree with the BIA that 

conduct covered by the indecent assault statute categorically 

 

convictions under it did not categorically constitute sexual 

abuse of a minor. Id. at 255 (citation omitted). Here, 

“intentionally caus[ing] the complainant to come in contact 

with the seminal fluid, urine or feces for the purpose of 

arousing sexual desire in a person or a complainant,” 

necessarily involves a past act with a child. 18 Pa. Cons. Stat. 

§ 3126(a)(7). The IJ erred in concluding otherwise. The BIA 

properly determined that this portion of the indecent assault 

statute categorically qualifies as sexual exploitation, and by 

extension sexual abuse of a minor.

5 Rule 414 cross-references this section of the U.S. Code. See

Fed. R. Evid. 414. 
10

constitutes “other form[s] of sexual exploitation” of a child.6

18 U.S.C. § 3509(a)(8). On this issue alone, Cadapan’s 

petition could be dismissed. We also agree, however, that 

molestation includes all conduct covered by “indecent 

contact.” Cadapan does not explain why we must look to the 

Federal Rules of Evidence for the definition of molestation. It 

is not cross-referenced in § 3509(a)(8) and generally when a 

statutory term is left undefined, we give it its “ordinary 

meaning” or common usage. United States v. Santos, 553 

U.S. 507, 511 (2008). In ascertaining the ordinary meaning of 

terms, we may refer to legal dictionaries. Pa. Dep’t of Pub. 

Welfare v. U.S. Dep’t of Health & Human Servs., 647 F.3d 

506, 511 (3d Cir. 2011). Black’s Law Dictionary defines 

“molestation,” in part as “[t]he act of making unwanted and 

indecent advances to or on someone, esp[ecially] for sexual 

gratification.” Black’s Law Dictionary 1096 (9th ed. 2009). 

As the IJ concluded, this definition encompasses all conduct 

constituting “indecent contact” under 18 Pa. Cons. Stat. § 

3126(a)(7). While Cadapan is correct that the Supreme Court 

has held that ambiguous “criminal statutes referenced by the 

INA must be construed in the noncitizen’s favor,” here, there 

is no ambiguity. Moncrieffe v. Holder, 133 S. Ct. 1678, 1693

(2013). Moreover, § 3509(a)(8) is not actually referenced in 

the INA and we have held that it is merely a guide as to what 

constitutes sexual abuse of a minor. We conclude, therefore, 

that the BIA reasonably determined that the “indecent 

 

6 Black’s Law Dictionary defines “sexual exploitation” as 

“[t]he use of a person, esp[ecially] a child, in prostitution, 

pornography, or other sexually manipulative activity that has 

caused or could cause serious emotional injury.” Black’s Law 

Dictionary 1498-99 (9th ed. 2009). All conduct proscribed by 

18 Pa. Cons. Stat. § 3126(a)(7) meets this definition. 
11

contact” referred to in the indecent assault statute 

categorically constitutes molestation and, by extension, 

sexual abuse of a minor. Cadapan is removable as an 

aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). 

III.

For the foregoing reasons, we will deny Cadapan’s 

petition for review.