PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 19-1740

______________

LUIS FERNANDO GRIJALVA MARTINEZ,

a/k/a Luis Grijalva, 

a/k/a Luis Martinez,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA, 

Respondent

______________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(No. A204-865-313)

______________

Argued September 30, 2020 

______________

Before: SHWARTZ, PHIPPS, and FISHER, Circuit Judges.

(Filed: October 21, 2020)
2

______________

OPINION

______________

Susan G. Roy [ARGUED] 

Law Office of Susan G. Roy

Suite 101

163 Cranbury Road

Princeton Junction, NJ 08550

Counsel for Petitioner 

Dana M. Camilleri [ARGUED] 

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Washington, DC 20044

Counsel for Respondent 

SHWARTZ, Circuit Judge. 

Luis Fernando Grijalva Martinez petitions for review of 

an order of the Board of Immigration Appeals (“BIA”) 

(1) holding that Grijalva Martinez was removable as an alien 

convicted of both an aggravated felony and a crime involving 

moral turpitude (“CIMT”), and (2) finding him ineligible for

withholding of removal and protection under the Convention 

Against Torture (“CAT”). Because Grijalva Martinez’s state 

conviction for criminal sexual contact constitutes both a CIMT 

and an aggravated felony, and because he is not entitled to 

withholding of removal or CAT relief, we will deny the 

petition for review. 
3

I

Grijalva Martinez is a citizen of Guatemala. In 

November 2013, his status was adjusted from asylee to lawful 

permanent resident. In May 2016, he was convicted in the New 

Jersey Superior Court of criminal sexual contact, in violation 

of N.J. Stat. Ann. § 2C:14-3(b), and of endangering the welfare 

of children, in violation of N.J. Stat. Ann. § 2C:24-4(a)(1). The

Government subsequently commenced removal proceedings 

against Grijalva Martinez, alleging that he was removable as 

an alien convicted of a CIMT, an aggravated felony, and a 

crime of child abuse, child neglect, or child abandonment. In 

proceedings before an Immigration Judge (“IJ”), Grijalva 

Martinez denied that the conviction rendered him removable, 

and applied for withholding of removal and CAT protection. 

With respect to his applications for relief, Grijalva Martinez

asserted that he feared violence at the hands of gang members, 

including his former stepfather. 

The IJ sustained the removability charges, finding that 

Grijalva Martinez’s conviction for criminal sexual contact was

both a CIMT under 8 U.S.C. § 1227(a)(2)(A)(i) and an 

aggravated felony, namely, sexual abuse of a minor, under 

§ 1227(a)(2)(A)(iii). The IJ also found that Grijalva Martinez

was ineligible for withholding of removal because he was 

convicted for criminal sexual contact, a particularly serious 

crime under 8 U.S.C. § 1231(b)(3)(B)(ii) and that Grijalva 

Martinez was ineligible for CAT relief because he had not 

established that he would be subject to torture if removed to 

Guatemala. 

Grijalva Martinez appealed to the BIA, which dismissed 

the appeal. The BIA held that Grijalva Martinez was 
4

removable because he had been convicted of both a CIMT and 

an aggravated felony.1

 The BIA also adopted the IJ’s findings

and conclusions denying Grijalva Martinez’s requests for 

withholding of removal and CAT relief. 

Grijalva Martinez petitions for review, arguing that the 

IJ and BIA (1) erred in concluding that criminal sexual contact 

is an aggravated felony, (2) erred in concluding that his

conviction is for a particularly serious crime, and (3) failed to 

apply the proper legal framework to his CAT claim. 

II2

1 Because the BIA found that Grijalva Martinez’s 

conviction constituted both a CIMT and an aggravated felony, 

it determined that it did not need to address the IJ’s conclusion 

that Grijalva Martinez was also removable for having been 

convicted of a crime of child abuse, child neglect, or child 

abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). 2 The BIA had jurisdiction under 8 C.F.R. § 

1003.1(b)(3). Though we lack jurisdiction to review orders 

that remove aliens convicted of certain CIMTs, aggravated 

felonies, and certain other crimes, see 8 U.S.C. 

§ 1252(a)(2)(C); Francisco-Lopez v. Att’y Gen., 959 F.3d 108, 

112 n.1 (3d Cir. 2020); Restrepo v. Att’y Gen., 617 F.3d 787, 

790 (3d Cir. 2010), we retain jurisdiction to review 

“constitutional claims or questions of law,” § 1252(a)(2)(D), 

and “we have jurisdiction to determine our jurisdiction under 

§ 1252(a)(2)(C),” Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 

2001), meaning that we have jurisdiction to address the 

“jurisdictional prerequisite” of whether an alien’s prior 

convictions constitute CIMTs, aggravated felonies, or other 
5

Grijalva Martinez does not challenge the BIA’s ruling 

that his conviction for criminal sexual contact constitutes a 

CIMT, a finding that provides a ground for removal.3

 He does, 

criminal offenses that trigger § 1252(a)(2)(C)’s jurisdictional 

bar, Restrepo, 617 F.3d at 790. 

3 Grijalva Martinez’s decision not to challenge one of 

the two grounds upon which he was found removable leaves 

intact a ground for his removal. In such a case, we may forgo 

review of the challenged ground if review would be “futile.”

Ricketts v. Att’y Gen., 955 F.3d 348, 351 (3d Cir. 2020) (citing 

N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 

(1969)); see also, e.g., Genego v. Barr, 922 F.3d 499, 502 (2d 

Cir. 2019) (holding that review may be “unnecessary if it 

would be pointless or futile, such as where there is an 

alternative and sufficient basis for the result” (citations 

omitted)). Put differently, we can decline to review Grijalva 

Martinez’s challenge to the agency’s aggravated-felony 

determination if any error therein is “harmless” and would “not 

affect the outcome of [his] case.” Guadalupe v. Att’y Gen., 

951 F.3d 161, 166-67 (3d Cir. 2020) (quoting Li Hua Yuan v. 

Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011)). 

However, the BIA’s classification of Grijalva Martinez 

as an aggravated felon precludes him from applying for certain 

relief from removal. In particular, under 8 U.S.C. 

§ 1229b(a)(3), Grijalva Martinez is eligible to apply for 

cancellation of removal only if he “has not been convicted of 

any aggravated felony.” 8 U.S.C. § 1229b(a)(3); see also

Randhawa v. Ashcroft, 298 F.3d 1148, 1151 n.1 (9th Cir. 2002) 

(holding that an alien’s CIMT convictions did not 

“automatically render harmless any error in the BIA’s 

discussion of the aggravated felony issue” because aggravated 

felons are not eligible to apply for cancellation of removal, 
6

however, dispute that the conviction constitutes an aggravated 

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

The Immigration and Nationality Act (“INA”) defines 

the term “aggravated felony” to include “sexual abuse of a 

minor.” 8 U.S.C. § 1101(a)(43)(A); see also Restrepo v. Att’y 

Gen., 617 F.3d 787, 791 (3d Cir. 2010). To determine whether 

Grijalva Martinez’s conviction for criminal sexual contact 

under N.J. Stat. Ann. § 2C:14-3(b) constitutes sexual abuse of 

a minor, “we employ the ‘categorical approach’ of Taylor v. 

United States, 495 U.S. 575 (1990).” Restrepo, 617 F.3d at 

791 (citing Nijhawan v. Holder, 557 U.S. 29, 34, 37 (2009)); 

see also Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1567-

68 (2017). Here, “[t]he categorical approach requires a two

step analysis: 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.” Restrepo, 

617 F.3d at 791 (citing Singh v. Ashcroft, 383 F.3d 144, 153 

(3d Cir. 2004)). The statutory offense is defined by its 

elements. “If [the type of] conduct that meets the federal 

definition of sexual abuse of a minor” would meet the elements

for a conviction for criminal sexual contact under New Jersey 

law, then Grijalva Martinez’s conviction “qualifies as a 

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

whereas some CIMT offenders are). Moreover, the aggravated 

felony designation impacts Grijalva Martinez’s eligibility to 

seek a waiver of inadmissibility. See 8 U.S.C. § 

1182(a)(9)(A)(i)-(ii). Because an aggravated felony 

designation imposes collateral consequences that a CIMT does

not, we will review the aggravated felony determination in this 

case. 
7

aggravated felony for which [Grijalva Martinez] is 

removable.” Id.

A

Two of our precedents inform the first step of this 

analysis. First, in Restrepo, we deferred to the BIA’s definition 

of the term “sexual abuse of a minor” in the INA, holding that 

the term is “most appropriately defined by” 18 U.S.C. 

§ 3509(a)(8), which defines “sexual abuse” as including “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.” Restrepo, 617 F.3d at 796 (quoting 

18 U.S.C. § 3509(a)(8)). We noted that the BIA viewed 

§ 3509(a)(8) not “as a restrictive or limiting definition,” but 

rather “as a guide in identifying the types of crimes we would 

consider to be sexual abuse of a minor.” Id. at 796 n.10

(quoting Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 

996 (B.I.A. 1999)). 

Second, in Cabeda v. Attorney General, 971 F.3d 165 

(3d Cir. 2020), we reaffirmed that § 3509(a)(8) is the 

touchstone of the federal generic definition of “sexual abuse of 

a minor” under the INA, but we also noted that § 3509(a)(8) 

“does not specify a mens rea requirement.” Id. at 173. Because 

we could not “defer to a nullity,” we “look[ed] elsewhere to 

discern the mens rea required to establish the generic federal 

crime.” Id. Specifically, we looked to “the structure of the 

INA, the inherent egregious nature of an aggravated felony, 

and,” perhaps most importantly, a “closely-related statute[],” 
8

18 U.S.C. § 2243. Id. (quoting Acevedo v. Barr, 943 F.3d 619, 

624 (2d Cir. 2019)).

Section 2243, a federal criminal statute entitled “sexual 

abuse of a minor or ward,” requires “knowing conduct as to the 

sexual act in question” but “establishes that no knowledge at 

all is required with respect to the victim’s age.” Id. (citing 18 

U.S.C. § 2243); see also Acevedo, 943 F.3d at 624 (“[C]ourts

have uniformly interpreted [Section 2243 and another similar 

federal statute] as disclaiming mens rea requirements with 

respect to the victim’s age.” (second alteration in original) 

(emphasis omitted) (quoting United States v. Robinson, 702 

F.3d 22, 33 (2d Cir. 2012))). In Cabeda, we imported § 2243’s 

scienter standard for the actus reus, the sexual act, into the 

federal generic offense of sexual abuse of a minor, holding that 

the federal generic offense requires knowing conduct as to the 

sexual act, 971 F.3d at 173-74. We had no need, however, to 

address whether § 2243’s proviso that the Government need 

not prove that the perpetrator knew the victim’s age applies to 

the federal generic offense. Id. 

Today, we conclude that the federal generic offense 

includes both components of § 2243. Section 2243 

criminalizes sexual contact with minors. Thus, it complements

§ 3509’s protection of minors who were victims of a sexual 

contact. Like similar state statutes concerning sexual contact 

with minors, see, e.g., infra n.9, § 2243 does not require proof 

that the defendant knew the victim’s age. See 18 U.S.C. § 

2243(d)(1). Moreover, to impose a requirement that the 

perpetrator know the victim’s age would exclude from the 

federal generic offense a swath of sexual conduct unlawful 

under many state laws. See Esquivel-Quintana, 137 S. Ct. at 

1571 (holding that courts may “look to state criminal codes for 
9

additional evidence about the generic meaning of sexual abuse 

of a minor”); Acevedo, 943 F.3d at 626 (same); Catherine L. 

Carpenter, On Statutory Rape, Strict Liability, and the Public 

Welfare Offense Model, 53 Am. U. L. Rev. 313, 343-44 (2003) 

(surveying jurisdictions and noting that a majority of states,

“substitute[] strict liability for a requirement of mens rea” in 

their statutory rape laws). Thus, we join our sister circuits and 

hold that the federal generic offense of sexual abuse of a minor 

under the INA contains no scienter requirement as to the 

victim’s age.4

 See, e.g., Bedolla-Zarate v. Sessions, 892 F.3d 

1137, 1141 (10th Cir. 2018); Contreras v. Holder, 754 F.3d 

286, 295 (5th Cir. 2014). 

As a result, the federal generic offense of sexual abuse 

of a minor requires proof that the defendant (1) knowingly 

engaged in an act that constitutes criminal sexual contact; and 

(2) engaged in such an act with a person who is of the age the 

statute covers, without the need for the government to prove 

that the defendant knew or reasonably should have known the 

person’s age.

4 Because we focus on the elements of the crime when 

applying the categorical approach, see Restrepo, 617 F.3d at 

791, the fact that § 2243 contains an affirmative defense 

concerning the defendant’s knowledge of the victim’s age, see

18 U.S.C. § 2243(c)(1), is of no consequence. The statute is 

clear that proof of the victim’s age is not an element of the 

crime, see § 2243(d)(1) (providing that “the Government need 

not prove that the defendant knew . . . the age of the other 

person engaging in the sexual act”). Cf. Smith v. United States, 

568 U.S. 106, 110 (2013) (distinguishing between elements 

and affirmative defenses). 
10

B

Having identified the elements of the federal generic 

definition for sexual abuse of a minor, we next examine the 

elements of criminal sexual contact under N.J. Stat. Ann. 

§ 2C:14-3(b) to determine whether the offenses categorically 

match. Section 2C:14-3(b) provides that a defendant is guilty 

“if he commits an act of sexual contact with the victim under 

any of the circumstances set forth in section 2C:14-2c. (1) 

through (5).” Section 2C:14-2(c)(1)-(5), in turn, sets forth a 

series of “alternatively phrased” factual scenarios.

5

 We must

5 The scenarios set forth in N.J. Stat. Ann. § 2C:14-2(c) 

are: 

(1) The actor commits the act using coercion or 

without the victim’s affirmative and freely-given 

permission, but the victim does not sustain 

severe personal injury;

(2) The victim is on probation or parole, or is 

detained in a hospital, prison or other institution 

and the actor has supervisory or disciplinary 

power over the victim by virtue of the actor’s 

legal, professional or occupational status;

(3) The victim is at least 16 but less than 18 years 

old and:

(a) The actor is related to the victim by 

blood or affinity to the third degree; or

(b) The actor has supervisory or 

disciplinary power of any nature or in any 

capacity over the victim; or

(c) The actor is a resource family parent, 

a guardian, or stands in loco parentis 

within the household;
11

accordingly decide whether these alternatively listed items are 

“elements” of the offense or “means” to commit it. Mathis v. 

United States, 136 S. Ct. 2243, 2256 (2016). Our review of the 

statute reveals that each subsection requires proof of a fact not 

required by another subsection. As a result, each subsection 

contains a separate element that must be proven to secure a 

conviction. New Jersey’s model jury instructions confirm this

conclusion. The instructions list the four subsections in 

Grijalva Martinez’s statute of conviction in the alternative, thus 

reflecting that each is an element. NJ J.I. CRIM 2C:14-3b. 

Furthermore, jurors must be unanimous as to whether the 

government has proven each element of the offense. NJ J.I. 

CRIM Non 2C Charges. The need for jury unanimity also 

shows that the subsections embody elements of, not a means to 

commit, the offense. See Hillocks v. Att’y Gen., 934 F.3d 332,

339 (3d Cir. 2019) (concluding that elements are those “that 

(4) The victim is at least 13 but less than 16 years 

old and the actor is at least four years older than 

the victim;

(5) The victim is a pupil at least 18 but less than 

22 years old and has not received a high school 

diploma and the actor is a teaching staff member 

or substitute teacher, school bus driver, other 

school employee, contracted service provider, or 

volunteer and the actor has supervisory or 

disciplinary power of any nature or in any 

capacity over the victim. As used in this 

paragraph, “teaching staff member” has the 

meaning set forth in N.J.S.18A:1-1.
12

need to be found unanimously beyond a reasonable doubt” by 

a trial jury). 

When a crime has multiple alternate elements, we apply 

a “modified categorical approach,” under which we may 

examine “a limited set of documents to see which of the 

alternatives served as the basis for the individual’s conviction.” 

Id. at 338 (citing Descamps v. United States, 570 U.S. 254, 

269-70 (2013); Mathis, 136 S. Ct. at 2249). Among the 

documents we may consider in making this assessment is the 

charging instrument, although in looking at this instrument, we 

remain focused on the elements, not the facts, of the crime. See

United States v. Brown, 765 F.3d 185, 189-90 (3d Cir. 2014) 

(quoting Descamps, 570 U.S. at 263), as amended (Nov. 4, 

2014). Grijalva Martinez’s indictment alleged that he 

committed criminal sexual contact against a victim who was at 

least 13 but less than 16 years old while he was at least four 

years older than her, allegations that align with the offense set 

forth at N.J. Stat. Ann. § 2C:14-2(c)(4).6

 

We will therefore compare the elements of the offense 

set forth at N.J. Stat. Ann. §§ 2C:14-3(b) and 2C:14-2(c)(4) 

with those of the federal generic offense. N.J. Stat. Ann. 

§§ 2C:14-3(b) and 2C:14-2(c)(4) criminalize engaging in 

“sexual contact” with a victim, § 2C:14-3(b), when “[t]he 

victim is at least 13 but less than 16 years old and the 

[defendant] is at least four years older than the victim,” 

§ 2C:14-2(c)(4). This offense has two components: a knowing 

act and the ages of the victim and defendant. The act is “sexual 

6 The BIA also found that § 2C:14-2(c)(4) was the basis 

for Grijalva Martinez’s conviction, and he does not challenge 

this conclusion in his petition for review. 
13

contact.” Sexual contact is defined under New Jersey law as

“an intentional touching by the victim or actor, either directly 

or through clothing, of the victim’s or actor’s intimate parts for 

the purpose of degrading or humiliating the victim or sexually 

arousing or sexually gratifying the actor,” which is performed 

“in view of the victim whom the actor knows to be present.” 

N.J. Stat. Ann. § 2C:14-1(d). Section 3509(a) “defines 

‘sexually explicit conduct’ to include ‘sexual contact[,]’ which 

refers to ‘the intentional touching, either directly or through 

clothing, of the genitalia, anus, groin, breast, inner thigh, or 

buttocks of any person with an intent to abuse, humiliate, 

harass, degrade, or arouse or gratify sexual desire of any 

person.’” Restrepo, 617 F.3d at 800 (alteration in original). As 

we observed in Restrepo, the “breadth of conduct encompassed 

by these provisions” makes “plain that”7 the conduct described 

in New Jersey’s definition of the term “sexual contact” also 

captures the conduct the federal generic offense prohibits.

8

 Id. 

7 In Restrepo, we rejected an attempt to define the 

federal generic definition of “sexual contact” more narrowly, 

given that a narrower definition would improperly exclude 

numerous state definitions of sexual contact, including that of 

New Jersey. 617 F.3d at 795 & n.7; see also EsquivelQuintana, 137 S. Ct. at 1571 (holding that courts may “look to 

state criminal codes for additional evidence about the generic 

meaning of sexual abuse of a minor”). 

8 The petitioner in Restrepo was convicted of 

aggravated criminal sexual contact in violation of N.J. Stat. 

Ann. §§ 2C:14-3(a) and 2C:14-2(a)(2)(a), an offense that 

criminalizes engaging in “sexual contact” with a victim, § 

2C:14-3(a), when “[t]he victim is at least 13 but less than 16 

years old,” § 2C:14-2(a)(2), and the defendant “is related to the 

victim by blood or affinity to the third degree,” § 2C:14-
14

Turning to the age component, both the federal generic 

offense and the New Jersey statute make it a crime to engage 

in the prohibited acts with individuals who are at least 13 but 

less than 16. See Esquivel-Quintana, 137 S. Ct. at 1568 

(“[T]he generic federal definition of sexual abuse of a minor 

requires that the victim be younger than 16.”); N.J. Stat. Ann. 

§ 2C:14-2(c)(4) (covering criminal sexual contact with a 

victim who is least 13 but less than 16, and four years younger 

than the defendant). Neither the federal generic offense nor the 

New Jersey law requires the government to prove that the 

defendant knew the age of the victim. Rather, a defendant can 

be convicted of criminal sexual contact even if he did not 

know, and even if he could not reasonably have known, that 

the victim was underage. See 18 U.S.C. § 2243(d) (providing 

that in a prosecution for sexual abuse of a minor, “the 

Government need not prove that the defendant knew . . . the 

age of the other person engaging in the sexual act”); N.J. Stat. 

Ann. § 2C:14-5(c) (“It shall be no defense to a prosecution for 

a crime under this chapter that the actor believed the victim to 

be above the age stated for the offense, even if such a mistaken 

2(a)(2)(a). See 617 F.3d at 789, 800. Applying the modified 

categorical approach, we held that this crime was a match for 

sexual abuse of a minor under the INA. Id. at 800. The only 

difference between the elements of Grijalva Martinez’s 

conviction and those of the conviction of the petitioner in 

Restrepo is the age of the defendant and the relation that he 

bears to the victim. Compare N.J. Stat. Ann. § 2C:14-

2(a)(2)(a), with N.J. Stat. Ann. § 2C:14-2(c)(4). For the 

purposes of applying the categorical approach and examining 

the conduct captured by the act of criminal sexual contact, the 

statutes here and in Restrepo are not materially different. 
15

belief was reasonable.”).9 Thus, because a knowing criminal 

sexual act involving a victim of a particular age, whose age 

may not be known to the perpetrator, is an element of both the 

federal generic offense and the New Jersey criminal sexual 

contact offense, the two are a categorical match. Because a 

crime that fits under the federal generic offense of sexual abuse 

of a minor is an aggravated felony, and because Grijalva 

Martinez’s crime of conviction matches the definition of the 

federal generic offense, the BIA correctly concluded that 

Grijalva Martinez’s conviction constitutes an aggravated 

felony that renders him removable. 

9 See also State v. Perez, 832 A.2d 303, 312 (N.J. 2003) 

(noting that the “standard in respect of a victim’s age” under 

N.J. Stat. Ann. § 2C:14 is “only objective proof that the alleged 

victim was a child under the age of [consent], not that the 

accused knew or reasonably should have known that fact”); 

State v. Saponaro, No. A-0741-15T3, 2017 WL 2348869, at *2 

(N.J. Super. Ct. App. Div. May 31, 2017) (“We have long held 

that a mistaken belief as to the age of a victim in an age-based 

sexual crime is not a defense. . . . ‘The crime has been defined 

by the Legislature in terms which negate any element of 

criminal intent on the part of the actor.’ . . . Our Legislature 

recognized that children should be protected—without regard 

to a perpetrator’s knowledge of the minor’s age—from sexual 

assaults. . . .” (quoting State v. Moore, 253 A.2d 579, 581 (N.J. 

Super. Ct. App. Div. 1969))); NJ J.I. CRIM §§ 2C:14-3b, 

2C:14-2(c)(4) (model jury instructions). 
16

III10

Grijalva Martinez contends that he is entitled to 

withholding of removal because he was not convicted of a 

particularly serious crime. Under the INA, “the Attorney 

General may not remove an alien to a country if the Attorney 

General decides that the alien’s life or freedom would be 

threatened in that country because of the alien’s race, religion, 

nationality, membership in a particular social group, or 

political opinion.” 8 U.S.C. § 1231(b)(3)(A). However, 

“withholding of removal is unavailable if [an] alien committed 

a ‘particularly serious crime’ because, in such a case, the alien 

is considered a ‘danger to the community of the United 

States.’” Flores v. Att’y Gen., 856 F.3d 280, 285 (3d Cir. 

2017) (quoting 8 U.S.C. § 1231(b)(3)(B)(ii)). 

Grijalva Martinez asserts that he is not subject to the 

particularly serious crime bar because only aggravated felonies 

can be particularly serious crimes and he was not convicted of 

an aggravated felony. Grijalva Martinez is wrong for three 

reasons. First, as just explained, Grijalva Martinez was indeed 

10 We have jurisdiction to review Grijalva Martinez’s 

withholding-of-removal claim because it raises a question of 

“[w]hether an IJ applied the correct legal standard.” Luziga v. 

Att’y Gen., 937 F.3d 244, 251 (3d Cir. 2019) (alteration in 

original) (internal quotation marks and citation omitted); see 

also § 1252(a)(2)(D); Nkomo v. Att’y Gen., 930 F.3d 129, 135 

(3d Cir. 2019). We review the agency’s classifications of 

particularly serious crimes “de novo, subject to Chevron

principles of deference.” Denis v. Att’y Gen. 633 F.3d 201, 

205-06 (3d Cir. 2011); see also Luziga v. Att’y Gen., 937 F.3d 

244, 251 (3d Cir. 2019).
17

convicted of an aggravated felony, and he is therefore 

statutorily precluded from applying for withholding of 

removal. See 8 U.S.C. § 1231(b)(3)(B). Second, even if 

Grijalva Martinez had not been convicted of an aggravated 

felony, offenses that are not aggravated felonies can be 

particularly serious crimes. See Bastardo-Vale v. Att’y Gen., 

934 F.3d 255, 266-67 (3d Cir. 2019) (en banc) (holding that 

“both aggravated felonies and other offenses can be 

particularly serious crimes,” given that “aggravated felonies 

[are only one] subset of particularly serious crimes”). Third, 

even if Grijalva Martinez’s offense does not qualify as an 

aggravated felony, the IJ did not err in concluding that Grijalva 

Martinez was convicted of a particularly serious crime. 

An IJ has “broad discretion” to determine whether a 

prior conviction is a particularly serious crime, Nkomo v. Att’y 

Gen., 930 F.3d 129, 134 (3d Cir. 2019), through a “case-bycase adjudication,” Denis v. Att’y Gen., 633 F.3d 201, 214 (3d 

Cir. 2011) (citation and internal quotation marks omitted); see 

also Bastardo-Vale, 934 F.3d at 262. In making this 

determination, the IJ may consider “such factors as [1] the 

nature of the conviction, [2] the circumstances and underlying 

facts of the conviction, [3] the type of sentence imposed, and, 

most importantly, [4] whether the type and circumstances of 

the crime indicate that the alien will be a danger to the 

community.” Luziga v. Att’y Gen., 937 F.3d 244, 252 (3d Cir. 

2019) (alterations in original) (quoting Matter of Frentescu, 18 

I. & N. Dec. 244, 247 (B.I.A. 1982)). 

Grijalva Martinez was convicted of criminal sexual 

contact for groping the “buttocks and vaginal area” of a teenage 

girl at the beach, after exposing himself to her and two other 

girls of similar ages. AR 299-300. The IJ “properly considered 
18

the nature of [these] acts,” Denis, 633 F.3d at 217, finding that 

Grijalva Martinez had committed “numerous offenses that 

included public lewdness for having exposed himself and 

sexually inappropriate physical contact with the victims,” AR 

95. Despite Grijalva Martinez’s protestations of his innocence, 

we agree with the IJ that there was “overwhelming evidence,”

AR 95, that Grijalva Martinez repeatedly and deliberately 

engaged in these acts. The seriousness of Grijalva Martinez’s 

conduct is also reflected in his sentence. The sentencing court 

itself noted the harm that Grijalva Martinez inflicted on the 

victim and his risk of recidivism. As a result, Grijalva 

Martinez was sentenced to several months’ imprisonment, 

ordered to serve a lifetime term of parole, and directed to 

register as a sex offender. Given these facts, the IJ’s finding 

was “a permissible reading and application of the phrase 

[‘particularly serious crime’],” and “we will not disturb [the 

IJ’s] determination” that Grijalva Martinez was convicted of a 

particularly serious crime. Denis, 633 F.3d at 216.

IV11

The IJ and BIA also did not err in denying Grijalva 

Martinez CAT relief. Although Grijalva Martinez encountered 

11 Because the jurisdictional limitations in 

§ 1252(a)(2)(C)-(d) “do not preclude judicial review of a 

noncitizen’s factual challenges to a CAT order,” we have 

jurisdiction to review Grijalva Martinez’s CAT claim. 

Nasrallah v. Barr, 140 S. Ct. 1683, 1694 (2020). Because the 

BIA here adopted the IJ’s reasons concerning the denial of 

CAT relief, “we review both the BIA and IJ decisions.” OlivaRamos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir. 2012) 

(internal quotation marks and citation omitted). “The standard 
19

several episodes of random violence in Guatemala, such as an 

armed robbery and an attempted vehicular manslaughter, he 

presented no evidence showing a “connection or common 

motive” behind the crimes that he witnessed, AR 103, and no 

evidence that the crimes occurred with the acquiescence of

government officials apart from country condition reports. 

Moreover, there is substantial evidence to support the IJ’s 

conclusion that the country condition reports did not establish 

any likelihood that Grijalva Martinez himself would be 

tortured there. See Tarrawally v. Ashcroft, 338 F.3d 180, 188 

(3d Cir. 2003) (holding that country condition reports “alone 

[were] insufficient to demonstrate that it is more likely than not 

that a particular civilian, in this case [the petitioner], will be 

tortured” if returned to his home country). Thus, the BIA and 

IJ did not err in finding Grijalva Martinez ineligible for CAT 

relief. 

V

For the foregoing reasons, we will deny the petition for 

review. 

of review [for factual challenges to CAT determinations] is the 

substantial-evidence standard: [t]he agency’s ‘findings of fact 

are conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary.’” Nasrallah, 140 S. Ct. 

at 1692 (quoting 8 U.S.C. § 1252(b)(4)(B)).