Luis Grijalva Martinez v. Attorney General United States ( 2020 )

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)
______________
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.
2
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
3
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.
II 2
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
4
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,
5
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.
6
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[],”
7
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
8
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).
9
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;
10
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.
11
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.
12
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 Esquivel-
Quintana, 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-
13
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.
14
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).
15
III 10
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).
16
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-by-
case 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
17
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.
IV 11
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.” Oliva-
Ramos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir. 2012)
(internal quotation marks and citation omitted). “The standard
18
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)).
19