NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ALEJANDRO BONTIA 

Plaintiff,

v. 

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES,

Defendant.

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Hon. Dennis M. Cavanaugh

OPINION

Civil Action No. 11-cv-1739(DMC-MF)

DENNIS M. CAVANAUGH, U.S.D.J.

This matter comes before the Court upon the Motion to Dismiss or for Summary Judgment

filed byDefendant United States Citizenship and Immigration Services (“Defendant”), and upon the

Cross Motion for Summary Judgment filed by Plaintiff Alejandro Bontia (“Plaintiff”). ECF Nos.

4, 13. Pursuant to FED. R. CIV. P. 78, no oral argument was heard. After carefully considering the

submissions of the parties, and based upon the following, it is the finding of this Court that

Defendant’s Motion is granted and that Plaintiff’s Cross Motion is denied. 

I. BACKGROUND1

This is an action seeking review of the denial of an application for naturalization. Compl.

¶ 1, ECF No. 1. Plaintiff is a citizen and native of the Philippines, and is a lawful permanent resident

 The facts presented in this background section are taken from the Complaint, and from 1

public records submitted to this Court by the parties. 

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of the United States. Compl. ¶ 2. On February 11, 1992, Plaintiff pled guilty to counts six and seven

of a seven count indictment. Tr. of Plea at 1, Ex. B to Def.’s Mot. (“Plea Tr.”), ECF No. 4-2. Count

six charged criminal sexual contact in violation of N.J.S.A. § 2C:14-3(b). Indictment at 7, Ex. A to

Def.’s Mot. (“Indictment”). Count seven charged criminal sexual conduct which would impair or 2

debauch the morals of a child under the age of sixteen in violation of N.J.S.A. § 2C:24-4(a). 

Indictment at 8. The remaining counts, including a charge of criminal sexual assault in violation

of N.J.S.A. § 2C:14-2c(5), were dismissed. Judgment of Conviction at 2, Ex. A to Def.’s Mot.

(“Judgment”).3

On August 2, 2010, Defendant denied Plaintiff’s application for naturalization on the grounds

that Plaintiff lacked good moral character. United States Citizenship and Immigration Services

Decision at 5, Ex. C to Def.’s Mot. (“USCIS Decision”). Defendant stated that Plaintiff’s prior

conviction under N.J.S.A. § 2C:14-3(b) constituted sexual abuse of a minor, which for immigration

purposes is considered an aggravated felony and a bar to naturalization. USCIS Decision at 6-7. 

Defendant affirmed its decision upon review on November 26, 2010. Decision on Review of Denial

of Naturalization Application at 2, Ex. D to Def.’s Mot. (“Decision on Review”). Defendant

informed Plaintiff of his right to seek review of this decision before a United States District Court

pursuant to Section 310(c) of the Immigration and Nationality Act. Decision on Review at 3. 

Plaintiff filed his Complaint on March 28, 2011. Defendant filed the present Motion on July

 As the Indictment does not contain internal page numbers, any pin cites to the 2

Indictment refer to page numbers as they appear on the Court’s Electronic Document Filing

System. 

 As with the Indictment, any pin cites to the Judgment refer to page numbers as they 3

appear on the Court’s Electronic Document Filing System. 

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25, 2011. On November 14, 2011, Plaintiff filed an Amended Complaint, as well as the present

Cross Motion and Opposition. ECF No. 12. Defendant filed its Reply in support of its Motion and

Opposition to Plaintiff’s Cross Motion on December 5, 2011. ECF No. 16. Plaintiff filed his Reply

in support of his Cross Motion on December 19, 2011. ECF No. 19. The matter is now before this

Court.

II. LEGAL STANDARDS

In deciding a motion under Rule 12(b)(6), the district court is “required to accept as true all

factual allegations in the complaint and draw all inferences in the facts alleged in the light most

favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A]

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Id. To survive a motion to

dismiss, the complaint must state a plausible claim. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). 

Thus, assuming that the factual allegations in the complaint are true, those “[f]actual allegations must

be enough to raise a right to relief above a speculative level.” Bell Atl. Corp., 550 U.S. at 555.

III. DISCUSSION

At the outset, the Court notes that Defendant’s Motion is in the form of a Motion to Dismiss

or for Summary Judgment. Since a review of the pleadings, documents integral to the pleadings, and

matters of public record is sufficient to decide Defendant’s Motion, the Court will consider the

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matter under the Motion to Dismiss standard. Further, Plaintiff filed his Amended Complaint

outside of the time limits for amendments as a matter of course set forth in FED. R. CIV. P. 15. 

Defendant has not consented to allow Plaintiff to amend his Complaint, and as discussed below, the

Court is convinced that Plaintiff should not be granted leave to amend his complaint. 

Turning to the merits of the parties’ arguments, the Court begins with a review of the relevant

portions of the Immigration and Nationality Act of 1990 (the “INA”). Under the INA, no person

shall be naturalized unless such person, among other requirements, “has been and still is a person

of good moral character” during all relevant periods. 8 U.S.C. § 1427(a)(3). The INA further notes

that no person shall be regarded as a person of good moral character if, at any time, such person has

been convicted of an “aggravated felony.” 8 U.S.C. § 1101(f)(8). The term “aggravated felony”

applies not only to federal offenses, but also to violations of state law. See 8 U.S.C. § 1101(a)(43);

Restrepo v. Attorney General of U.S., 617 F.3d 787, 791 (3d Cir. 2010). The INA defines

aggravated felony to include, inter alia, “murder, rape, or sexual abuse of a minor.” 8 U.S.C. §

1101(a)(43)(A). 

Defendant maintains that the Complaint should be dismissed because Plaintiff has been

convicted of sexual abuse of a minor, and is thus statutorily ineligible for naturalization. Def.’s

Reply Br. 3. Plaintiff responds that his conviction for criminal sexual contact does not constitute

sexual abuse of a minor, and as such does not disqualify him from naturalization. Pl.’s Opp’n Br.

1. In order to determine whether Congress intended the phrase “sexual abuse of a minor” to include

conduct punishable under a particular state statute, courts employ the “formal categorical approach”

set forth in Taylor v. United States, 495 U.S. 575, 600-02 (1990). This requires a court to compare

the statutory definition of the crime of conviction against the more generic definition in 8 U.S.C. §

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1101(a)(43). The first part of this task requires a determination of whether all of the conduct

proscribed in the statute of conviction, rather than the conduct proscribed in the particular subsection

the individual was convicted of performing, categorically constitutes “sexual abuse of a minor.” If

only some of the conduct proscribed in the statute of conviction falls within the category of “sexual

abuse of a minor,” a court may then look beyond the statutory definition, and consider the facts

underlying the conviction to determine whether the specific crime at issue constitutes “sexual abuse

of a minor.” Stubbs v. Atty. Gen., 452 F.3d 251, 254-55 (3d Cir. 2006). In considering such facts,

courts are limited to considering the charging instrument and the plea colloquy. Id.

Plaintiff urges this Court to consider his conviction under the framework of Taylor v. United

States, and as further explained in the Third Circuit Opinion in Restrepo v. Attorney General of U.S. 

Defendant, meanwhile, argues that no such analysis is required, since the Third Circuit has already

considered the statute at issue in Ijalana v. Attorney General of U.S., 257 F. App’x 594, 596 (3d Cir.

2007). In Ijalana, the Third Circuit applied the formal categorical approach, and determined that the

conviction in question, criminal sexual contact in violation of N.J.S.A. § 2C:14-3(b), constituted

sexual abuse of a minor. The Ijalana Court determined that N.J.S.A. § 2C:14-3(b) contained both 4

While the decision does not explicitly indicate that N.J.S.A. § 2C:14-3(b) was the 4

subsection at issue, a review of the Opinion and N.J.S.A. § 2C:14-3 makes clear that it was,

which in turn bears on this Court’s own analysis. There are two subsections to N.J.S.A. §

2C:14-3, which are N.J.S.A. § 2C:14-3(a) and N.J.S.A. § 2C:14-3(b). N.J.S.A. § 2C:14-3(a)

indicates that an actor is guilty of aggravated criminal sexual contact if he commits an act of

sexual contact under any of the circumstances set forth in N.J.S.A. § 2C:14-2(a)(2)-(7). N.J.S.A.

§ 2C:14-3(b), meanwhile, indicates that an actor is guilty of criminal sexual contact if he

commits an act of sexual contact under any of the circumstances set forth in N.J.S.A. §

2C:14-2(c)(1)-(4). In Ijalana, the alien pled guilty to criminal sexual contact, not aggravated

sexual contact, which indicates that the conviction at issue was under N.J.S.A. § 2C:14-3(b). 

Further, in determining that the statute at issue included conduct which both may and may not

involve sexual abuse of a minor, thus necessitating a consideration of the charging instrument

under the Taylor framework, the Ijalana Court referred to N.J.S.A. § 2C:14-2(c)(1)-(2). Ijalana,

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conduct that would constitute sexual abuse of a minor and conduct that would not, and therefore

turned to the charging instrument to determine which variation the alien was charged under.

As the Ijalana Court determined that a review of the charging instrument was necessary to

determine what subsection of N.J.S.A. § 2C:14-3(b) the alien was charged under, so too must this

Court review which subsection Plaintiff was charged under. N.J.S.A. § 2C:14-3(b) indicates that

an actor is guilty of criminal sexual contact if he commits an act of sexual contact under any of the

circumstances set forth in N.J.S.A. § 2C:14-2(c)(1)-(4). Count Six of the indictment charges that

Plaintiff “did commit criminal sexual contact . . . the victim being at least thirteen but less than

sixteen years of age and the actor being at least four years older than the victim . . . .” Indictment

at 7. This is the conduct proscribed by N.J.S.A. § 2C:14-2(c)(4), and is the same conduct to which

the alien in Ijalana pled guilty. 257 F. App’x at 596. The Ijalana Court found that this subsection

constituted sexual abuse of a minor. Id. at 596-97. In keeping with that decision, it is the finding

of this Court that Plaintiff’s conviction qualifies as sexual abuse of a minor for immigration

purposes, and that Plaintiff is statutorily barred from naturalization. 

Plaintiff asks this Court to consider the detailed factual circumstances discussed in his plea

colloquy, and to differentiate his case from Ijalana in that regard. Pl.’s Opp’n Br. 9-12. This is not

the proper inquiry under the Taylor analysis, however, and the Court declines to do so. The issue

is not the circumstances that led to Plaintiff’s conviction; rather, it is which specific crime Plaintiff

pled guilty too. 

Plaintiff advances another argument, in which he contends that the aggravated felony

257 F. App’x at 596 n.1. These are the referenced sections in N.J.S.A. § 2C:14-3(b), thus

making it clear that N.J.S.A. § 2C:14-3(b) was the statute at issue.

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category of sexual abuse of a minor did not exist until 1996, after the time of his guilty plea, and

should not apply to this particular case. Pl.’s Opp’n Br. 8. Section 321(b) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) makes clear that the definition of

aggravated felony, including sexual abuse of a minor, applies retroactively. Pub. L. No. 104-208,

110 Stat. 3009 (September 30, 1996). In this respect, Section 321(b) states that the definition of

aggravated felony “applies regardless of whether the conviction was entered before, on, or after

September 30, 1996.” IIRIRA, § 321(b), 110 Stat. at 3009-628. Plaintiff, however, points to the

language of Section 321(c) of the IIRIRA, which states that “[t]he amendments made by this section

shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the

conviction occurred.” IIRIRA, § 321(c), 110 Stat. at 3009-628. 

Plaintiff argues that since this Court is empowered to review his immigration case de novo,

the amendments do not apply to “actions taken” by this Court. Pl.’s Opp’n Br. 8-9. This argument

relies on a misreading of the law. Section 321(b) makes clear that the inclusion of “sexual abuse of

a minor” in the definition of “aggravated felony” applies to Plaintiff’s 1992 conviction. Section

321(c) does not change this. Section 321(c)simply limits the amendments to orders or decisions of

an Immigration Judge or the Board of Immigration Appeals made after 1996. Since all immigration

decisions made regarding Plaintiff’s case occurred after 1996, Section 321(c) is not at issue. The

only question in this case is whether Plaintiff’s 1992 conviction renders him statutorily ineligible for

naturalization. This Court holds that it does, and will grant Defendant’s Motion to Dismiss on that

ground. Further, Plaintiff’s proposed amendments to his Complaint would be futile, as they are

insufficient to overcome this statutory bar to naturalization.

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IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is granted. Plaintiff’s Cross

Motion for Summary Judgment is denied. An appropriate Order accompanies this Opinion. 

 S/ Dennis M. Cavanaugh 

Dennis M. Cavanaugh, U.S.D.J.

Date: February 28 , 2012 

Orig.: Clerk 

cc: All Counsel of Record

Hon. Mark Falk, U.S.M.J.

File

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