PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2170

RAFAEL ANTONIO LARIOS-REYES, a/k/a Rafael A. Reyes,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

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

Appeals.

Argued: September 21, 2016 Decided: December 6, 2016 

Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit 

Judges.

Petition for review granted and order of removal vacated by 

published opinion. Chief Judge Gregory wrote the opinion, in 

which Judge Niemeyer and Judge Harris joined.

ARGUED: Benjamin Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, 

LLC, Alexandria, Virginia, for Petitioner. Karen L. Melnik, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent. ON BRIEF: Himedes V. Chicas, JEZIC & MOYSE, LLC, 

Silver Spring, Maryland, for Petitioner. Benjamin C. Mizer, 

Principal Deputy Assistant Attorney General, Derek C. Julius, 

Senior Litigation Counsel, Office of Immigration Litigation, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent.
2

GREGORY, Chief Judge:

Rafael Antonio Larios-Reyes, a native and citizen of El 

Salvador, seeks review of the decision of the Board of 

Immigration Appeals (“BIA”) finding him removable based on his 

conviction for “Third Degree Sex Offense” under Maryland 

Criminal Law Article § 3-307. The BIA determined that LariosReyes’s state conviction qualifies as the aggravated felony of 

“sexual abuse of a minor” under § 1101(a)(43)(A) of the 

Immigration and Nationality Act (“INA”) and affirmed the 

immigration judge’s finding that Larios-Reyes is therefore 

removable. We find that the BIA erred as a matter of law and 

hold that Larios-Reyes’s conviction does not constitute the 

aggravated felony of “sexual abuse of a minor” under the INA 

because Maryland Criminal Law Article § 3-307 proscribes more 

conduct than does the generic federal offense. We therefore 

grant Larios-Reyes’s petition for review, vacate the order of 

removal, and order his immediate release from Department of 

Homeland Security (“DHS”) custody.

I.

Larios-Reyes entered the United States as a lawful 

permanent resident in 1999, when he was four years old. 

Administrative Record (“A.R.”) 450. On August 5, 2013, LariosReyes was charged with “Sex Offense Second Degree” in violation 
3

of Maryland Criminal Law Article § 3-306 and “Sex Abuse Minor” 

in violation of § 3-602(b)(1). Id. at 765. On September 13, 

2013, Larios-Reyes was indicted on both counts. Id. at 762-63.

In May 2014, Larios-Reyes and the State of Maryland reached 

a plea agreement. The State dismissed the “Sex Abuse Minor” 

charge and amended the “Sex Offense Second Degree” charge to the 

lesser charge of “Third Degree Sex Offense” under § 3-307. Id.

at 756, 769. Larios-Reyes pleaded guilty to the amended second 

charge, which states that

RAFAEL ANTONIO REYES (date of birth 09/16/94), on or 

about and between November 1, 2012, and November 30, 

2012[,] . . . in Montgomery County, Maryland, did 

commit a sexual offense in the third degree on 

[victim] (date of birth 05/23/08), to wit: fellacio, 

in violation of Section 3-307 of the Criminal Law 

Article against the peace, government, and dignity of 

the State.

Id. at 763.

The Maryland statute under which Larios-Reyes was convicted 

provides that

(a) A person may not:

(1) (i) engage in sexual contact with 

another without the consent of the 

other; and

(ii) 1. employ or display a dangerous 

weapon, or a physical object that 

the victim reasonably believes is 

a dangerous weapon;

2. suffocate, strangle, disfigure, 

or inflict serious physical 

injury on the victim or another 
4

in the course of committing the 

crime;

3. threaten, or place the victim in 

fear, that the victim, or an 

individual known to the victim, 

imminently will be subject to 

death, suffocation, strangulation, disfigurement, serious 

physical injury, or kidnapping; 

or

4. commit the crime while aided and

abetted by another;

(2) engage in sexual contact with another if 

the victim is a mentally defective 

individual, a mentally incapacitated 

individual, or a physically helpless 

individual, and the person performing 

the act knows or reasonably should know 

the victim is a mentally defective 

individual, a mentally incapacitated 

individual, or a physically helpless 

individual;

(3) engage in sexual contact with another if 

the victim is under the age of 14 years, 

and the person performing the sexual 

contact is at least 4 years older than 

the victim;

(4) engage in a sexual act with another if 

the victim is 14 or 15 years old, and 

the person performing the sexual act is 

at least 21 years old; or

(5) engage in vaginal intercourse with 

another if the victim is 14 or 15 years 

old, and the person performing the act 

is at least 21 years old.

Md. Code Ann., Crim. Law § 3-307 (2002).

The Circuit Court for Montgomery County, Maryland, 

sentenced Larios-Reyes to 364 days in prison, all suspended, and 
5

five years of supervised probation and medical treatment. It 

also ordered him to register as a sexual offender. A.R. 769-73. 

In July 2014, when Larios-Reyes failed to report to his 

probation officer or register as a sexual offender, the court 

issued a warrant for his arrest. Id. at 778-81. Larios-Reyes 

was arrested approximately one month later and ordered held 

without bond. Id. at 757.

In October 2014, DHS issued Larios-Reyes a notice to 

appear. DHS charged him with removability based on his 

conviction under § 3-307, which DHS contended constituted the 

aggravated felony of “sexual abuse of a minor” under 

§ 1101(a)(43)(A) of the INA. Id. at 822. On March 27, 2015, 

the immigration judge upheld the charge of removability and 

ordered Larios-Reyes removed from the United States to El 

Salvador. Id. at 397. Larios-Reyes appealed to the BIA.

There was no dispute on appeal that a conviction under § 3-

307--without more information on what part of § 3-307 LariosReyes violated--would not constitute “sexual abuse of a minor” 

under the INA. What the parties contested was whether the BIA 

could consider a narrower portion of § 3-307 to determine if the 

particular elements of Larios-Reyes’s conviction constituted 

“sexual abuse of a minor.” The questions for the BIA, then, 

were (1) whether § 3-307 is a divisible statute, meaning that it 

creates multiple alternative offenses, at least one of which 
6

constitutes “sexual abuse of a minor,” and if so, (2) what 

portion of § 3-307 Larios-Reyes was necessarily convicted of,

and (3) whether the elements of Larios-Reyes’s conviction 

matched the elements of the generic federal offense.

In an unpublished opinion issued by a single member, the 

BIA first concluded that § 3-307 is a divisible statute because 

it “create[s] multiple versions of the crime of sexual offense 

in the third degree.” Id. at 4. The BIA then reviewed the 

record of conviction and concluded that Larios-Reyes was 

convicted under § 3-307(a)(3). The BIA enumerated the 

“essential elements of an offense under § 3-307(a)(3)” as “that 

the defendant had sexual contact with the victim, that the 

victim was under 14 years of age at the time of the act, and 

that the defendant was at least 4 years older than the victim.” 

Id. It further found that although the conduct specified in the 

indictment--fellatio--falls within the definition of “sexual 

act” under Maryland law, “such conduct is also encompassed by 

the definition of ‘sexual contact,’” id. at 4 n.3, which is the 

conduct element in § 3-307(a)(3).

The BIA then concluded that an offense under § 3-307(a)(3) 

categorically constitutes “sexual abuse of a minor” under the 

INA. Id. at 5. In reaching this conclusion, the BIA did not 

adopt a definition of the generic federal offense. Nor did it 

refer directly to any interpretations set forth in either BIA or 
7

Fourth Circuit precedent. Instead, it compared § 3-307(a)(3)’s 

elements to the elements of a California statute that the BIA 

had determined constituted the federal generic offense of 

“sexual abuse of a minor” in In re Esquivel-Quintana, 26 I. & N. 

Dec. 469 (B.I.A. 2015), aff’d, Esquivel-Quintana v. Lynch, 810 

F.3d 1019 (6th Cir. 2016), cert. granted, No. 16-54, 2016 WL 

3689050 (U.S. Oct. 28, 2016). A.R. 4-5. The BIA here held that 

because § 3-307(a)(3)’s elements are narrower than the 

California statute’s, § 3-307(a)(3) also categorically matches 

the generic federal offense.

The BIA accordingly affirmed the immigration judge’s 

determination that Larios-Reyes is removable as an alien 

convicted of an aggravated felony under § 1101(a)(43)(A) of the 

INA, and it dismissed his appeal. Larios-Reyes timely filed 

this petition for review of the BIA’s decision.

II.

We generally lack jurisdiction to review any final order of 

removal against an alien removable as an aggravated felon. 

8 U.S.C. § 1252(a)(2)(C); Kporlor v. Holder, 597 F.3d 222, 225–

26 (4th Cir. 2010). We have limited jurisdiction, however, to 

review constitutional claims or questions of law, including

whether a conviction qualifies as an aggravated felony. 

8 U.S.C. § 1252(a)(2)(D); Amos v. Lynch, 790 F.3d 512, 517 (4th 
8

Cir. 2015). We review this question of law de novo. Castillo 

v. Holder, 776 F.3d 262, 267 (4th Cir. 2015).

A.

Under the INA, an alien is removable if he or she is 

“convicted of an aggravated felony at any time after admission.” 

8 U.S.C. § 1227(a)(2)(A)(iii). The INA contains a long list of 

crimes that qualify as an “aggravated felony,” including “sexual 

abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).

To determine whether Larios-Reyes’s conviction under § 3-

307 qualifies as “sexual abuse of a minor” under the INA, we 

would usually apply the categorical approach set forth in Taylor 

v. United States, 495 U.S. 575 (1990). Under this approach, we 

ask whether “‘the state statute defining the crime of 

conviction’ categorically fits within the ‘generic’ federal 

definition of a corresponding aggravated felony.” Moncrieffe v. 

Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Gonzales v. 

Duenas–Alvarez, 549 U.S. 183, 186 (2007)). We answer this by 

first considering the elements of the generic federal crime. 

See Taylor, 495 U.S. at 590. The state statute is a categorical 

match with the federal definition “only if a conviction of the 

state offense ‘“necessarily” involved . . . facts equating to 

[the] generic [federal offense].’” Moncrieffe, 133 S. Ct. at 

1684 (quoting Shepard v. United States, 544 U.S. 13, 24 (2005)) 

(alterations in original). We therefore “focus on the minimum 
9

conduct necessary for a violation of the state statute, while 

ensuring that there is a ‘realistic probability, not a 

theoretical possibility, that the State would apply its statute 

to conduct that falls outside the generic definition of a 

crime.’” Castillo, 776 F.3d at 267–68 (quoting Gonzales, 549 

U.S. at 193). We look to the decisions of Maryland’s appellate 

courts to see both the minimum conduct to which the statute has 

been applied and those courts’ pronouncements on the minimum 

conduct to which the statute might be applied. See id. at 268. 

And “‘[t]o the extent that the statutory definition of [§ 3-

307(a)(3)] has been interpreted’ by the state’s appellate 

courts, ‘that interpretation constrains our analysis of the 

elements of state law.’” Id. (quoting United States v. 

Aparicio–Soria, 740 F.3d 152, 154 (4th Cir. 2014)).

Here, the parties do not dispute that under the categorical 

approach, § 3-307 is broader than any conceivable federal 

definition of “sexual abuse of a minor” because § 3-307 

enumerates several offenses that do not require the victim to be 

a minor. See Md. Code Ann., Crim. Law § 3-307(a)(1), (2). 

Under the categorical approach, then, Larios-Reyes would easily 

prevail. But the Supreme Court has recognized a “narrow range 

of cases” in which courts, when faced with an overbroad but 

“divisible” statute, may consider whether a portion of the 

statute is a categorical match to the federal generic 
10

definition. Descamps v. United States, 133 S. Ct. 2276, 2284

(2013) (quoting Taylor, 495 U.S. at 602). This is called the

“modified categorical approach.”

In order for a court to apply the modified categorical 

approach, a statute must be “divisible.” A statute is divisible 

when it (1) “sets out one or more elements of the offense in the 

alternative,” and (2) at least one of those elements or sets of 

elements corresponds to the federal definition at issue. Id. at 

2281; see also United States v. Cabrera-Umanzor, 728 F.3d 347, 

352 (4th Cir. 2013) (stating that “general divisibility [] is 

not enough; a statute is divisible . . . only if at least one of 

the categories . . . constitutes, by its elements, [an 

aggravated felony]”). For the first prong, the focus is on the 

statute’s elements, not the facts of the crime. Then, the 

inquiry is whether the statute has listed “multiple, alternative 

elements, . . . effectively creat[ing] ‘several different . . . 

crimes.’” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. 

Holder, 557 U.S. 29, 41 (2009)). The Supreme Court has 

emphasized that a statute setting forth merely alternative means

of committing an offense will not satisfy this requirement. 

Mathis v. United States, 136 S. Ct. 2243, 2255 (2016). This is 

because a federal penalty may be imposed based only on what a 

jury necessarily found or what a defendant necessarily pleaded 
11

guilty to, and the means of commission is not necessary to 

support a conviction. Id.

If a statute is divisible, then the modified categorical 

approach is appropriate. This approach permits courts to 

“examine a limited class of documents,” known as Shepard

documents,1 “to determine which of a statute’s alternative 

elements formed the basis of the defendant’s prior conviction.” 

Descamps, 133 S. Ct. at 2284. It is then possible to compare 

the particular elements of the conviction, rather than the 

elements of the statute as a whole, to the federal generic 

definition.

The Supreme Court has “underscored the narrow scope of” the 

modified categorical approach. Id. It is “to identify, from 

among several alternatives, the crime of conviction so that the 

court can compare it to the generic offense.” Id. at 2285. The 

Court has made clear that review under this approach “does not 

authorize a sentencing court to substitute [] a facts-based 

inquiry for an elements-based one. A court may use the modified 

 1 Shepard documents “includ[e] charging documents, plea 

agreements, transcripts of plea colloquies, findings of fact and 

conclusions of law from a bench trial, and jury instructions and 

verdict forms.” Johnson v. United States, 559 U.S. 133, 144 

(2010); see also Shepard, 544 U.S. at 26 (listing documents that 

a reviewing court may consider). And in this Circuit, courts 

may also consider applications for statements of charges and 

statements of probable cause, so long as the statements are

expressly incorporated into the statement of charges itself. 

United States v. Donnell, 661 F.3d 890, 894-96 (4th Cir. 2011).
12

approach only to determine which alternative element in a 

divisible statute formed the basis of the defendant’s 

conviction.” Id. at 2293. Once a court has made this 

determination, it can compare that part of the statute to the 

generic federal offense using the traditional categorical 

approach, which remains centered on elements, not facts. Id. at 

2285 (stating that the modified categorical approach “preserves 

the categorical approach’s basic method”). And where an element 

of the conviction is defined to include multiple alternative 

means, courts must consider all of those means; an element is 

not further divisible into its component parts. See id. at 

2291; see also Mathis, 136 S. Ct. at 2255-57.

To begin this analysis, we must determine whether § 3-307

is a divisible statute. We agree with the BIA that it is. We 

recently held in United States v. Alfaro, 835 F.3d 470, 473 (4th 

Cir. 2016), that § 3-307 lists alternative sets of elements that 

create multiple versions of the crime of third-degree sexual 

offense. Alfaro thus confirms that § 3-307 meets the first 

prong of the divisibility inquiry. Alfaro does not, however, 

resolve the second prong of the divisibility test, which is 

whether any set of elements in § 3-307 constitutes “sexual abuse 

of a minor.”

In Alfaro, we held that § 3-307 is divisible, but we were 

comparing § 3-307 to “crime of violence” under the Sentencing 
13

Guidelines. Id. Here, we must determine whether any set of 

elements in § 3-307 constitutes an “aggravated felony” under the 

INA--a question not answered by Alfaro. We emphasize the point 

that a statute might be divisible as compared to one federal 

statute and not divisible as compared to another. Whether any 

set of elements meets the generic federal definition will vary 

depending on the generic federal definition at issue. The 

second prong of the divisibility inquiry sometimes merits less 

discussion, see id., but it is an important--and required--step 

in the analysis.2 Here, at least one set of elements in § 3-307 

must qualify as “sexual abuse of a minor” in order for the 

statute to be divisible.

We find that at least the set of elements in § 3-307(a)(5) 

constitutes “sexual abuse of a minor” under the INA. Section 3-

307(a)(5) prohibits “engag[ing] in vaginal intercourse with 

another if the victim is 14 or 15 years old, and the person 

performing the act is at least 21 years old.” This clearly

constitutes “sexual abuse of a minor” under any conceivable 

 2 Indeed, had the petitioner here recognized that Alfaro

only answered the first prong of the divisibility inquiry, he

might not have conceded at oral argument that Alfaro

conclusively establishes that § 3-307 is a divisible statute in 

this case.
14

federal generic definition.3 Because at least one set of 

elements matches the generic federal offense, the second prong 

of the divisibility inquiry is satisfied. Section 3-307 is thus 

a divisible statute for purposes of its comparison with INA 

§ 1101(a)(43)(A), and we may use the modified categorical 

approach to determine which statutory elements formed the basis 

of Larios-Reyes’s conviction and whether those elements match 

the federal generic definition.

The Shepard documents show that Larios-Reyes was convicted 

under the elements listed in § 3-307(a)(3), “sexual contact with 

another if the victim is under the age of 14 years, and the 

person performing the sexual contact is at least 4 years older 

than the victim.” The factual basis for Larios-Reyes’s plea

details one instance in which Larios-Reyes asked the victim to 

touch his erect penis, which she did for 2-3 minutes, and two 

instances in which Larios-Reyes asked the victim to perform 

fellatio on him, which she did for 2-3 seconds each time. A.R. 

767-68. Fellatio is specifically categorized as a “sexual act”

under Maryland law. See Md. Code Ann., Crim. Law § 3-301(d)(1).

Fellatio could also qualify as “sexual contact,” which Maryland 

defines as “an intentional touching of the victim’s or actor’s 

 3 And it certainly matches the definition that we proceed to 

adopt here in Section II.C.
15

genital, anal, or other intimate area for sexual arousal or 

gratification, or for the abuse of either party.” Id. § 3-

301(e)(1); see Partain v. State, 492 A.2d 669, 672-73 (Md. Ct. 

Spec. App. 1985) (holding that cunnilingus constitutes both 

“sexual act” and “sexual contact”). The Shepard documents thus 

reveal that an element of Larios-Reyes’s conviction was either 

“sexual act” or “sexual contact.” The Shepard documents also 

establish the age elements of the offense. Larios-Reyes was 

eighteen years old, and the victim was four years old. 

Therefore, Larios-Reyes necessarily pleaded guilty to all of 

§ 3-307(a)(3)’s elements,4 and we affirm the BIA’s finding that 

Larios-Reyes was convicted under § 3-307(a)(3).

B.

Having established that § 3-307 is a divisible statute and 

that Larios-Reyes was convicted under § 3-307(a)(3), we now turn 

 4 The Shepard documents eliminate § 3-307(a)(4) and (a)(5) 

as the basis for the conviction because they both require that 

the victim be “14 or 15 years old” and that “the person 

performing the sexual act [be] at least 21 years old.” Neither 

element is satisfied here, because at the time of the offense, 

the victim was four years old and Larios-Reyes was eighteen 

years old. The Shepard documents also reveal that Larios-Reyes 

was not convicted under § 3-307(a)(1) or (a)(2). The documents 

do not indicate that Larios-Reyes engaged in sexual contact with 

the victim under any of the aggravating circumstances listed in 

§ 3-307(a)(1). Nor do the documents contain any evidence that 

the victim was “a substantially cognitively impaired individual, 

a mentally incapacitated individual, or a physically helpless 

individual,” as required by § 3-307(a)(2). Therefore, there is 

no factual basis to support the conclusion that Larios-Reyes was 

necessarily convicted under any of these subsections.
16

to whether § 3-307(a)(3)’s elements categorically match the 

elements of the generic federal definition of “sexual abuse of a 

minor.” A threshold question that we must answer before we can 

compare these statutes is how to define “sexual abuse of a 

minor.” The INA does not define it, and this Court has not done 

so in a published opinion interpreting the INA. Therefore, we 

must consider the BIA’s interpretation of this generic federal 

offense, because under Chevron, U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 842–43 (1984), we are required to 

defer to the BIA’s precedential interpretation of a “silent or 

ambiguous” statute so long as that interpretation is not 

“arbitrary, capricious, or manifestly contrary to the statute,”

id. at 844.

Although the BIA’s decision here is not precedential 

because it is unpublished and was issued by a single Board 

member, it relied on a precedential BIA decision, EsquivelQuintana. We therefore must determine whether that decision 

warrants deference. See Hernandez v. Holder, 783 F.3d 189, 192

(4th Cir. 2015).

The BIA in Esquivel-Quintana considered whether the 

California offense of “unlawful intercourse with a minor” 

categorically constitutes “sexual abuse of a minor” under the 

INA. 26 I. & N. Dec. 469. In concluding that it was a 

categorical match, the BIA did not adopt a definition of the 
17

federal offense to which we might defer here. Instead, it 

relied on the interpretive framework set forth in In re 

Rodriguez–Rodriguez, 22 I. & N. Dec. 991, 996 (B.I.A. 1999). 

Esquivel-Quintana, 26 I. & N. Dec. at 470-71. We therefore must 

consider that framework.

In Rodriguez–Rodriguez, the BIA looked to 18 U.S.C. 

§ 3509(a)(8)--a statute that provides procedural protections for 

child victims and witnesses and that lists crimes constituting 

“sexual abuse”--and determined that it might serve “as a guide 

in identifying the types of crimes [the BIA] would consider to 

be sexual abuse of a minor.”5 Rodriguez–Rodriguez, 22 I. & N. 

Dec. at 996. The BIA expressly stated that it was “not adopting 

[that] statute as a definitive standard or definition” for 

purposes of § 1101(a)(43)(A) of the INA. Id. For that reason, 

we held in Amos v. Lynch that there was no statutory 

interpretation to which to defer under Chevron and that 18 

U.S.C. § 3509(a)(8) might provide guidance but was not the 

“interpretive touchstone” for determining whether a state 

 5 Under 18 U.S.C. § 3509(a)(8), “the term ‘sexual abuse’ 

includes 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.”
18

conviction qualifies as a removable offense.6 790 F.3d at 519-

20. We also pointed out that because § 3509(a)(8) “includ[es] 

‘a broad range of maltreatment of a sexual nature,’” it “does 

not clarify the scope of the generic federal crime” of “sexual 

abuse of a minor.” Id. at 522 (quoting Rodriguez-Rodriguez, 22 

I. & N. Dec. at 996). Accordingly, we cast serious doubt on the 

usefulness of Rodriguez-Rodriguez’s interpretive approach.

In Esquivel-Quintana, the BIA relied on Rodriguez-Rodriguez

to support its conclusion and did not adopt a definition of the 

generic federal offense of “sexual abuse of a minor.” EsquivelQuintana, 26 I. & N. Dec. at 470-71. Therefore, we need not 

 6 The Ninth and Tenth Circuits have similarly declined to 

give Chevron deference to Rodriguez-Rodriguez. Rangel-Perez v. 

Lynch, 816 F.3d 591, 598-99 (10th Cir. 2016) (citing Amos and 

agreeing that “Rodriguez-Rodriguez . . . did not establish 18 

U.S.C. § 3509(a) as the exclusive touchstone for defining the 

elements of the INA’s ‘sexual abuse of a minor’ category of 

‘aggravated’ felonies”); Estrada-Espinoza v. Mukasey, 546 F.3d 

1147, 1157 (9th Cir. 2008) (en banc), overruled on other grounds 

by United States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir.

2011) (en banc) (per curiam), abrogated by Descamps, 133 S. Ct. 

2276 (“Chevron deference does not apply in these circumstances 

because Rodriguez–Rodriguez did not interpret a statute within 

the meaning of Chevron, but only provided a ‘guide’ for later 

interpretation.”).

We acknowledge that three of our sister circuits have held 

that Rodriguez-Rodriguez adopted § 3509(a) as the definition of 

“sexual abuse of a minor” under the INA. See Velasco–Giron v. 

Holder, 773 F.3d 774, 776 (7th Cir. 2014), cert. denied sub nom.

Velasco–Giron v. Lynch, 135 S. Ct. 2072 (2015); Restrepo v. 

Attorney Gen., 617 F.3d 787, 792, 795–96 (3d Cir. 2010); Mugalli 

v. Ashcroft, 258 F.3d 52, 58–59 (2d Cir. 2001). But as we 

stated in Amos, we respectfully disagree with these circuits’ 

decisions. 790 F.3d at 519.
19

give Chevron deference to Esquivel-Quintana for the same reason 

we declined to give it to Rodriguez–Rodriguez: the BIA did not 

adopt a federal generic definition of “sexual abuse of a minor.” 

Indeed, the Sixth Circuit confirmed that the BIA’s approach is 

“to interpret [‘sexual abuse of a minor’] through case-by-case 

adjudication.” Esquivel-Quintana, 810 F.3d at 1026.

In sum, the BIA here issued a nonprecedential decision to 

which we need not defer. The BIA did rely on a precedential 

decision, Esquivel-Quintana, that might guide our review, but we 

already held in Amos that this approach is not due any Chevron

deference. Therefore, we are not required to give Chevron

deference to either the BIA’s opinion here or to EsquivelQuintana.7

We are thus left to consider the BIA’s determination that 

§ 3-307(a)(3) constitutes “sexual abuse of a minor” under the 

INA using the principles outlined in Skidmore v. Swift & Co., 

323 U.S. 134 (1944). Under the Skidmore framework, which 

prescribes a more modest amount of deference, “we may defer to 

 7 The BIA’s other findings in Esquivel-Quintana are entitled 

to Chevron deference, but they do not concern the issue here. 

These include that (1) the generic federal offense of “sexual 

abuse of a minor” requires a meaningful age difference between 

the victim and the perpetrator, and (2) California Penal Code 

§ 261.5(c) categorically constitutes “sexual abuse of a minor” 

under § 1101(a)(43)(A) of the INA. Esquivel-Quintana, 26 I. & 

N. Dec. at 477.
20

the agency’s opinion, based on the agency’s ‘body of experience 

and informed judgment,’” but “the degree of deference that we 

accord depends on our consideration of the persuasiveness of the 

BIA’s analysis as demonstrated by its thoroughness, validity of 

reasoning, and consistency with other decisions.” Amos, 790 

F.3d at 521 (quoting Skidmore, 323 U.S. at 140).

We are not persuaded by the BIA’s analysis. Before the BIA 

could answer the question whether a conviction under § 3-

307(a)(3) constitutes the aggravated felony of “sexual abuse of 

a minor,” it had to compare § 3-307(a)(3)’s elements to the 

elements of the federal offense. But here, the BIA did not 

establish the elements of the federal offense. In fact, it did 

not even explain what federal definition it was using. Instead, 

the BIA compared § 3-307(a)(3)’s elements to the elements of a 

California statute that was found to constitute “sexual abuse of 

a minor.”

This approach is problematic for two reasons. First, the 

California statute was found to be a categorical match using the 

Rodriguez-Rodriguez framework, which we have held is neither due 

any deference nor is particularly useful as an interpretive 

tool. See Amos, 790 F.3d at 521-22. And second, the Supreme 

Court has made clear that the categorical approach requires a 

comparison of the elements of the state statute of conviction to 

the elements of the generic federal offense, see Moncrieffe, 133 
21

S. Ct. at 1684, not to the elements of another state’s statute 

of conviction. By attempting to fit § 3-307(a)(3) within the 

elements of a California statute, the BIA essentially used 

California law to determine whether a Maryland conviction 

constituted a removable offense under federal law.

Even if this type of statutory comparison was a reasonable 

way to determine whether § 3-307(a)(3) matches the generic 

federal definition of “sexual abuse of a minor,” the BIA erred 

in its analysis. It failed to determine what conduct the 

California statute encompassed and whether that conduct was also 

proscribed by § 3-307(a)(3). Had the BIA done so, it might have 

seen its mistake.

The BIA concluded that because the “offense [in EsquivelQuintana] with the elements of ‘(1) unlawful sexual intercourse 

(2) with a minor under 18 years old (3) who is more than 3 years 

younger than the perpetrator’ categorically constitutes sexual 

abuse of a minor,” then § 3-307(a)(3), which “include[s] a 

younger victim and a greater age difference than the 

corresponding elements in the statute at issue in Matter of 

Esquivel-Quintana,” also constitutes “sexual abuse of a minor” 

under the INA. A.R. 4-5. The BIA held this “notwithstanding 

that the ‘sexual contact’ proscribed by [§ 3-307(a)(3)] may 

potentially be less egregious than the ‘unlawful sexual 

intercourse’” in Esquivel-Quintana. Id. at 5. This is entirely 
22

incorrect. That § 3-307(a)(3) criminalizes “potentially . . . 

less egregious” conduct than the California statute in EsquivelQuintana is precisely the reason that the California statute has 

no utility as a comparator--and in fact suggests that § 3-

307(a)(3) is more likely not to constitute the generic federal 

offense.

Ultimately, we conclude that the BIA’s decision on this 

question is not entitled to Skidmore deference. While we 

recognize that the agency has a wealth of immigration expertise, 

we find that the BIA was neither thorough in its analysis, valid 

in its reasoning, nor consistent with precedent in the BIA or

the Fourth Circuit. See Amos, 790 F.3d at 521 (citing Skidmore, 

323 U.S. at 140). Accordingly, we proceed to consider this 

question of law de novo, without deferring to the BIA’s 

determinations in this case.

C.

We begin by defining “sexual abuse of a minor.” We agree 

with the petitioner that this Court has already established a

generic federal definition of “sexual abuse of a minor” in the 

sentencing context and that the definition is equally applicable 

here. In United States v. Diaz-Ibarra, we defined “sexual abuse 

of a minor” for purposes of applying the Sentencing Guidelines. 

522 F.3d 343 (4th Cir. 2008). We looked to the Eleventh 

Circuit’s reasoning in United States v. Padilla-Reyes, 247 F.3d 
23

1158 (11th Cir. 2001), an immigration case, and we adopted that 

court’s definition wholesale. See Diaz-Ibarra, 522 F.3d at 351-

52.

In Padilla-Reyes, the court looked to the common meaning of 

the phrase “sexual abuse of a minor.” 247 F.3d at 1163-64. It 

determined that it made more sense to consider the phrase’s 

plain meaning than to cross-reference other federal statutes, 

because “where Congress intended an aggravated felony subsection 

to depend on federal statutory law it explicitly included the 

statutory cross-reference,” and so “the lack of an explicit 

statutory reference in the § 1101(a)(43)(A) subsection indicates 

Congress’s intent to rely on the plain meaning of the terms.” 

Id. at 1164.

The Padilla-Reyes court explained that “[a]mong the 

relevant definitions for abuse, Webster’s includes ‘misuse[;]

. . . to use or treat so as to injure, hurt, or damage[;] . . . 

to commit indecent assault on[;] . . . the act of violating 

sexually[;] . . . [and] rape or indecent assault not amounting 

to rape.’” Id. at 1163. And “for sexual, Webster’s includes 

‘of or relating to the sphere of behavior associated with 

libidinal gratification.’” Id. The court concluded that “the 

word ‘sexual’ in the phrase ‘sexual abuse of a minor’ indicates 

that the perpetrator’s intent in committing the abuse is to seek 

libidinal gratification,” and that the common understanding of 
24

“abuse” in this context is that it does not require physical 

contact. Id. The court therefore concluded that “the phrase 

‘sexual abuse of a minor’ means a perpetrator’s physical or 

nonphysical misuse or maltreatment of a minor for a purpose 

associated with sexual gratification.” Id.

Significantly, the Eleventh Circuit in Padilla-Reyes

crafted the definition of “sexual abuse of a minor” in the 

immigration context--under § 1101(a)(43)(A) of the INA. In 

Diaz-Ibarra, we held that the Padilla-Reyes definition also 

applies to “sexual abuse of a minor” under the Sentencing 

Guidelines. 522 F.3d at 351-52. In doing so, we implied that 

the federal generic definition of “sexual abuse of a minor” is 

the same in the sentencing and immigration contexts.

This is further confirmed by the Commentary to the 

Sentencing Guidelines in effect at the time, which stated that 

“aggravated felony” under the Guidelines “has the meaning given 

that term in section 101(a)(43) of the Immigration and 

Nationality Act (8 U.S.C. § 1101(a)(43)).” U.S. Sentencing 

Guidelines Manual § 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n 

2007).8 Because the crime is the same under the Sentencing 

Guidelines and the INA, the definition of “sexual abuse of a 

 8 The current Commentary to the Sentencing Guidelines

retains this language. See U.S. Sentencing Guidelines Manual 

§ 2L1.2 cmt. n.3(A) (U.S. Sentencing Comm’n 2015).
25

minor” adopted by this Court in the sentencing context is also

applicable in the immigration context.9 And this makes sense,

because the utility of a “generic” definition is that it applies 

in different contexts. To find otherwise would mean “sexual 

abuse of a minor” has multiple “generic” federal definitions, an 

outcome that ordinarily will contravene both the categorical 

approach’s governing principles and common sense.

We now hold that the generic federal definition of “sexual 

abuse of a minor” set forth in Diaz-Ibarra is applicable to the 

INA. Therefore, under the INA, “‘sexual abuse of a minor’ means 

the ‘perpetrator’s physical or nonphysical misuse or 

maltreatment of a minor for a purpose associated with sexual 

gratification.’” Diaz-Ibarra, 522 F.3d at 352 (quoting PadillaReyes, 247 F.3d at 1163). And because we now have a definition 

of the federal generic offense, we can determine whether a 

 9 The Fifth Circuit has made a similar observation in an 

unpublished opinion. See Ramos-Garcia v. Holder, 483 F. App’x 

926, 929 n.14 (5th Cir. 2012) (acknowledging that “[m]ost of the 

cases discussing the definition of ‘sexual abuse of a minor’

under § 1101(a)(43) do so in a sentencing rather than an 

immigration context,” but noting that it could find “no reason

. . . why those cases are not applicable [to the INA] for 

purposes of determining the generic meaning of ‘sexual abuse of

a minor’ under the same statutory provision”). And in two 

unpublished opinions, we have applied the Diaz-Ibarra definition 

to “sexual abuse of a minor” under the INA. See Waffi v. 

Mukasey, 285 F. App’x 26, 27 (4th Cir. 2008) (using DiazIbarra’s definition of “sexual abuse of a minor” to determine 

whether the statute at issue categorically matched the offense 

under the INA); Alvarado v. Holder, 398 F. App’x 942, 943 (4th 

Cir. 2010) (same).
26

conviction under § 3-307(a)(3) categorically qualifies as that 

federal offense.

D.

We reiterate that at this step in the analysis, our task is 

to compare statutory elements only. We do not consider whether 

Larios-Reyes’s actual conduct constitutes “sexual abuse of a 

minor”; we ask only whether § 3-307(a)(3) matches the generic 

federal definition. Shepard documents serve the limited purpose 

of clarifying which element or set of elements create the basis 

for the conviction. They have no role to play in our subsequent 

comparison of that portion of the statute to the generic federal 

offense. Accordingly, we now turn to consider the scope of § 3-

307(a)(3)’s elements.

Under Maryland law, “‘sexual contact,’ as used in [§] 3-

307[(a)(3)] . . . , means an intentional touching of the 

victim’s or actor’s genital, anal, or other intimate area for 

sexual arousal or gratification, or for the abuse of either 

party.” Md. Code Ann., Crim. Law § 3-301(e)(1) (emphasis 

added). “Sexual contact” is defined in the disjunctive, meaning 

that there are multiple ways to accomplish it. Maryland courts 

have held that the State need not show that a defendant acted 

for the purpose of sexual gratification in order to be 

convicted, because acting for such a purpose is just one of the 

ways that a defendant’s conduct might constitute “sexual 
27

contact.” See, e.g., Dillsworth v. State, 503 A.2d 734, 737 

(Md. Ct. Spec. App. 1986), aff’d, 519 A.2d 1269 (Md. 1987)

(rejecting defendant’s argument that his conduct did not 

constitute “sexual contact” because there was no evidence that 

he acted for the purpose of “sexual arousal or gratification,” 

and stating that “[t]o include the necessity to show sexual 

arousal or gratification as a requisite of ‘abuse’ would be to 

require an unnecessary redundancy--to use the words ‘for abuse’

in vain”). A showing that a defendant acted with the intent to 

abuse could also sustain a conviction.

The Maryland Court of Special Appeals has interpreted 

“abuse” in § 3-307 as not limited to “a physical attack intended 

to inflict sexual injury.” LaPin v. State, 981 A.2d 34, 43 (Md. 

Ct. Spec. App. 2009). Rather, “a touching for the purpose of 

‘abuse’ [under § 3-307] refers to a wrongful touching, a 

touching of another person’s intimate area for a purpose that is 

harmful, injurious or offensive.” Id. The Maryland Court of 

Appeals has further recognized that “the buttocks are an 

intimate area within the meaning of [§] 3–301[],” finding 

specifically that “[t]he touching of the buttocks is therefore 

proscribed by [§] 3–307(a)(3).” Bible v. State, 982 A.2d 348, 

358 (Md. 2009). Hence, a conviction could be sustained under 

§ 3-307(a)(3) based on an adult’s intentional touching of a 

minor’s buttocks for a “harmful, injurious or offensive”--but 
28

not sexually gratifying--purpose. See Alfaro, 835 F.3d at 473 

n.1 (recognizing this interpretation of “sexual contact” as used 

in § 3-307).

Under the federal generic definition of “sexual abuse of a 

minor,” acting for the purpose of sexual gratification is an

element of the offense. Indeed, in Alfaro, we emphasized that 

“sexual abuse of a minor” as defined in Diaz-Ibarra “is a 

‘broad’ phrase ‘capturing physical or nonphysical conduct,’ and 

it is the sexual-gratification element that polices the line 

between lawful and unlawful conduct.” Alfaro, 835 F.3d at 476 

(quoting United States v. Perez–Perez, 737 F.3d 950, 953 (4th 

Cir. 2013)) (citation omitted). We went on, “[T]he intent to 

gratify sexual urges is central to the offense of sexual abuse 

of a minor . . . and therefore is part of the ordinary meaning 

of the phrase ‘sexual abuse.’” Id. at 476-77.

In Maryland, a perpetrator need not act for the purpose of 

sexual gratification in order to be convicted under § 3-

307(a)(3). Acting for the purpose of abuse is enough. And 

Maryland’s appellate courts have interpreted “abuse” to include

much more conduct than what the INA criminalizes. Because we 

are constrained by Maryland’s interpretation of the scope of its 

own laws, see Castillo, 776 F.3d at 268, we find that § 3-

307(a)(3) is broader than the federal generic offense of “sexual 

abuse of a minor.” Accordingly, we hold that a conviction for 
29

“Third Degree Sex Offense” under Maryland Criminal Law Article 

§ 3-307(a)(3) does not constitute the aggravated felony of 

“sexual abuse of a minor” under § 1101(a)(43)(A) of the INA.

III.

The BIA erred as a matter of law in finding that LariosReyes’s conviction under Maryland Criminal Law Article § 3-307 

constitutes the aggravated felony of “sexual abuse of a minor” 

under the INA. We therefore grant Larios-Reyes’s petition for 

review, vacate the order of removal, and order his immediate 

release from DHS Custody.

PETITION FOR REVIEW GRANTED

AND ORDER OF REMOVAL VACATED