2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-20-2015

Jackson Ngaruiya v. Attorney General United States

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-3742

___________

JACKSON NJAGA NGARUIYA,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A058-030-954)

Immigration Judge: Honorable Walter A. Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 20, 2015

Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

(Filed: February 20, 2015)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Petitioner Jackson Njaga Ngaruiya petitions for review of the final order of 

removal of the Board of Immigration Appeals (“BIA” or “Board”) dismissing his appeal 

from a removal order entered by an Immigration Judge (“IJ”). For the reasons discussed 

below, we will deny the petition for review. 

Petitioner, a native and citizen of Kenya, entered the United States in 2006 as a 

lawful permanent resident. In 2011, he was convicted of: (1) indecent assault of a person 

less than sixteen years old, in violation of 18 Pa. Cons. Stat. § 3126(a)(8); and (2) 

indecent assault without consent, in violation of 18 Pa. Cons. Stat. § 3126(a)(1). 

Thereafter, the Department of Homeland Security (DHS) charged Petitioner as removable 

for having been convicted of an aggravated felony (namely, the sexual abuse of a minor), 

see 8 U.S.C. § 1227(a)(2)(A)(iii); see also 8 U.S.C. § 1101(a)(43)(A) (providing that the 

“sexual abuse of a minor” qualifies as an “aggravated felony”).1 The DHS also charged 

Petitioner with removability for having been convicted of a crime involving moral 

turpitude, see 8 U.S.C. § 1227(a)(2)(A)(i). At an administrative hearing, Petitioner 

argued before the IJ that he had not been convicted of an aggravated felony and thus 

should not be ordered removed on that basis. He did not contest the moral turpitude 

charge. 

 

1

In Restrepo v. Att’y Gen., 617 F.3d 787, 796 (3d Cir. 2010), we concluded that 18 

U.S.C. § 3509(a) was an appropriate guidepost for the definition of “sexual abuse of a 

minor.” That section defines “sexual abuse” to include “the . . . use . . . of a child to 

engage in . . . sexually explicit conduct or the rape, molestation, prostitution, or other 

form of sexual exploitation of children . . . .” 18 U.S.C. § 3509(a)(8).
3

In March 2014, the IJ ruled that Petitioner’s conviction for indecent assault of a 

person less than sixteen years old qualified as sexual abuse of a minor and, therefore, as 

an aggravated felony. He then ordered that Petitioner be removed to Kenya. In an 

August 2014 order, the BIA dismissed Petitioner’s administrative appeal, upholding the 

IJ’s determination that Petitioner’s conviction under 18 Pa. Cons. Stat. § 3126(a)(8)2

qualifies categorically as molestation or sexual exploitation of a child under 18 U.S.C. 

§ 3509(a)(8) and, by extension, sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A). 

The Board determined that Petitioner’s arguments to the contrary had been foreclosed by 

our recent decision in Cadapan v. Attorney General of the United States, 749 F.3d 157, 

161 (3d Cir. 2014). This petition for review followed.

Our jurisdiction is circumscribed because Petitioner is removable for having been 

convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). However, we can 

consider the jurisdictional prerequisite whether the alien’s conviction constitutes an 

aggravated felony, and we can also hear “constitutional claims and questions of law” (but 

not factual challenges) even if presented by an alien convicted of an aggravated felony. 

 

2 18 Pa. Cons. Stat. § 3126(a)(8) provides: “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 the complainant is less than 16 years of age and the person 

is four or more years older than the complainant and the complainant and the person are 

not married to each other.” Indecent contact is defined as “[a]ny touching of the sexual 

or other intimate parts of the person for the purpose of arousing or gratifying sexual 

desire, in any person.” 18 Pa. Cons. Stat. § 3101.
4

Restrepo, 617 F.3d at 790. As he did before the Board, Petitioner argues here that his 

Pennsylvania indecent assault conviction does not qualify as an aggravated felony under 

the Immigration and Nationality Act (“INA”).3 We agree with the BIA that his 

arguments in support of that contention are foreclosed by our decision in Cadapan.

In Cadapan, we determined that a conviction of indecent assault under 18 Pa. 

Cons. Stat. § 3126(a)(7)4is subject to the “categorical approach” of analysis.5 749 F.3d 

at 159. We further determined that the Pennsylvania statute categorically constitutes the 

aggravated felony of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) because 

all of the conduct criminalized by the statute meets the definition of “sexual abuse” in 18 

U.S.C. § 3509(a)(8), which the BIA reasonably uses as a reference point for interpreting 

“sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A). Id. at 160-61. In so holding, 

we rejected one of the arguments that Petitioner raises on appeal—that because 18 Pa. 

 

3

In his brief, Petitioner asserts that he was convicted under 18 Pa. Cons. Stat.

§ 3126(a)(7). However, the record of conviction demonstrates that he was, in fact, 

convicted under 18 Pa. Cons. Stat. § 3126(a)(8). 

4 The only difference between § 3126(a)(7) and § 3126(a)(8) (under which Petitioner was 

convicted) is that the former criminalizes indecent assault against minors under thirteenyears-old, and the latter criminalizes the same behavior against minors under sixteenyears-old (when the perpetrator is four or more years older and not married to the minor). 

The provisions are otherwise the same.

5 The categorical approach precludes review of the factual basis for the underlying 

conviction. See Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004); see also Taylor 

v. United States, 495 U.S. 575, 600-02 (1990). Instead, we consider whether the least 

culpable conduct necessary to sustain a conviction under the statute satisfies the 

definition of the applicable INA provision. See Partyka v. Att’y Gen., 417 F.3d 408, 411 

(3d Cir. 2005).
5

Cons. Stat. § 3126 is a divisible statute, it should be analyzed under the “modified 

categorical approach” of analysis, rather than the categorical approach.6 In Cadapan, we 

concluded that that even though Pennsylvania’s indecent assault statute is divisible, it 

should not be analyzed under the modified categorical approach because “all of the 

conduct covered by the statute constitutes sexual abuse of a minor.” Id. at 161 n. 4 

(citing United States v. Jones, 740 F.3d 127, 134 (3d. Cr. 2014) as holding that the 

modified categorical approach is only appropriate where a divisible state statute 

proscribes some conduct that falls under umbrella of federal statute and some that does 

not). Petitioner has not provided us with any reason to disturb that ruling. 

Petitioner also argues that the Board erred in determining that his indecent assault 

conviction constituted an aggravated felony because the “mere touching” of a minor 

should not qualify as sexual abuse. However, as mentioned, in Cadapan we determined 

that that all conduct covered by Pennsylvania’s indecent assault statute categorically 

constitutes “molestation” or “sexual exploitation” of a child within the meaning of 18 

U.S.C. § 3509(a)(8) and, by extension, “sexual abuse of a minor” under 8 U.S.C.

§ 1101(a)(43)(A). 749 F.3d at 161. Petitioner’s argument is therefore unavailing. 

 

6

If a statute of conviction lists elements in the alternative, some of which fit the federal 

definition and some of which do not, courts apply the modified categorical approach and 

are permitted “to consult a limited class of documents . . . to determine which alternative 

formed the basis of the defendant’s prior conviction.” Descamps v. United States, 133 S. 

Ct. 2276, 2279 (2013); see also United States v. Brown, 765 F.3d 185, 188–91 (3d Cir. 

2014) (discussing operation of the categorical and modified categorical approach in light 

of Descamps).
6

Based on the above, the BIA correctly determined that Petitioner’s conviction for 

indecent assault qualifies as sexual abuse of a minor and thus rendered him a removable 

alien based on an aggravated felony. We will therefore deny the petition for review.