Pah Peh v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1508
___________________________
Pah Peh,
lllllllllllllllllllllPetitioner,
v.
Merrick B. Garland, Attorney General of United States,1
lllllllllllllllllllllRespondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: January 12, 2021
Filed: July 16, 2021
____________
Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Pah Peh, a native of Thailand and citizen of Burma, petitions for review of an
order of the Board of Immigration Appeals. The Board concluded that he was
removable because his prior conviction for enticing a minor under Iowa law was a
1
Attorney General Garland is automatically substituted for his predecessor
under Federal Rule of Appellate Procedure 43(c)(2).
“crime of a child abuse.” We conclude that the Board’s decision cannot be upheld
on the rationale advanced by the government, and it is unclear whether the Board
relied on other grounds, so we vacate the decision and remand for further
proceedings.
I.
Pah Peh has been a lawful permanent resident of the United States since 2009.
In 2019, he was convicted after a guilty plea in Iowa state court of “Enticing, under
16 years, illegal act,” in violation of Iowa Code § 710.10(3). The trial information
charged that “with the intent to commit sexual abuse or sexual exploitation upon a
minor under the age of 13,” Peh “did entice or attempt to entice a child under the age
of 13.” See Iowa Code § 710.10(1). Peh pleaded guilty, however, to the lesser
offense of “entic[ing] a person reasonably believed to be under the age of sixteen”
with the “intent to commit an illegal act upon a minor under the age of sixteen.” Id.
§ 710.10(3). The judgment does not specify the “illegal act” that Peh was convicted
of intending to commit.
The Department of Homeland Security initiated removal proceedings against
Peh on the ground that his conviction qualified as a “crime of child abuse, child
neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i). An immigration
judge sustained the charge of removability and denied Peh’s requests for relief from
removal. The Board affirmed the immigration judge’s determination that the
Department had established Peh’s removability under § 1227(a)(2)(E)(i) by clear and
convincing evidence. See 8 U.S.C. § 1229a(c)(3)(A).
Peh petitions for review of the Board’s order. He argues that his conviction for
enticing a minor in violation of Iowa Code § 710.10(3) is not a conviction for a
“crime of child abuse,” and that the Board erred in concluding that he is removable.
We review the Board’s legal determination de novo.
-2-
II.
The Immigration and Nationality Act provides than an alien is removable if,
at any time after admission, he is convicted of a “crime of child abuse, child neglect,
or child abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). Congress did not define “crime
of child abuse,” but the Board has defined the term in a series of precedential
decisions, and Peh does not challenge the agency’s definition. See generally INS v.
Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).
The Board interprets “crime of child abuse” to mean “any offense involving an
intentional, knowing, reckless, or criminally negligent act or omission that constitutes
maltreatment of a child or that impairs a child’s physical or mental well-being,
including sexual abuse or exploitation.” Matter of Velazquez-Herrera, 24 I. & N.
Dec. 503, 512 (BIA 2008). The definition encompasses offenses that cause “mental
or emotional harm,” and the victim must be under the age of eighteen years. Id.We use the so-called categorical approach to determine whether Peh’s
enticement offense in Iowa matches the federal definition of a crime of child abuse.
Under that approach, we consider whether the elements of his offense necessarily fit
within the Board’s generic definition. Reyna v. Barr, 935 F.3d 630, 632 (8th Cir.
2019). We must presume that Peh’s conviction rested on no more than the least of
the acts criminalized by the Iowa statute. Moncrieffe v. Holder, 569 U.S. 184, 190-91
(2013). This analysis, however, is not an “invitation to apply ‘legal imagination’ to
the state offense; there must be ‘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.’” Id. at 191 (quoting Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007)).
Iowa law provides that a person commits a class D felony “when, without
authority and with the intent to commit an illegal act upon a minor under the age of
-3-
sixteen, the person entices a person reasonably believed to be under the age of
sixteen.” Iowa Code § 710.10(3). A person cannot be convicted under the statute
unless he “commits an overt act evidencing a purpose to entice.” Id. § 710.10(5).
Methods of enticement include, but are not limited to, “personal contact and
communication by any means including through the mail, telephone, internet, or any
social media.” Id. § 710.10(7). “‘Entice’ is defined as ‘to draw on by arousing hope
or desire’ or ‘to draw into evil ways.’ Synonymous words include ‘allure,’ ‘attract,’
and ‘tempt.’” State v. Hansen, 750 N.W.2d 111, 114 (Iowa 2008) (quoting State v.
Osmundson, 546 N.W.2d 907, 909 (Iowa 1996)).
Peh disputes that the Iowa enticement statute meets the Board’s requirement
of an act that “constitutes maltreatment of a child or that impairs a child’s physical
or mental well-being.” Velazquez-Herrera, 24 I. & N. Dec. at 512. He argues that
because the state offense can involve an intent to commit “an illegal act upon a
minor,” a person could be convicted for enticing a minor with intent to commit simple
misdemeanors such as disorderly conduct, harassment, and driving above the speed
limit. Enticement for those purposes, he contends, would not constitute a crime of
child abuse. Peh has not argued that the enticement statute is overbroad as applied
to his own case, but the government does not suggest that Iowa Code § 710.10(3) is
divisible based on the “illegal act” intended by a perpetrator.
The Board concluded that Peh had “not established a realistic probability that
Iowa would successfully prosecute a violation of Iowa Code § 710.10(3) involving
any of the ‘illegal acts’ he cites to in his brief, or any other illegal acts that would not
constitute ‘child abuse, child neglect, or child endangerment.’” The Board reasoned
that “Iowa case law indicates the successful prosecution of offenses of Iowa Code
§ 710.10(3) only in cases that have caused some sort of infliction of physical, mental,
or emotional harm to a child.”
-4-
The government defends the Board’s decision on the ground that the text of
Iowa Code § 710.10(3) does not encompass enticement with intent to commit
disorderly conduct, harassment, or other illegal acts posited by Peh. Drawing on the
definition of “entice,” the government maintains that an offender who intends to
commit disorderly conduct or harassment upon a minor does not “draw on [the minor]
by arousing hope or desire” or “draw [the minor] into evil ways.” The government
asserts that the Iowa statute is a categorical match with the federal removal statute,
because “illegal acts that entice” constitute a crime of child abuse.
We reject this argument because it mistakenly conflates two separate elements
in the Iowa statute. To convict an offender under § 710.10(3), the State must prove
that the defendant (1) enticed a person reasonably believed to be under the age of
sixteen, and (2) did so with the intent to commit an illegal act upon a minor. The
intended “illegal act” need not be the act that entices the minor. The element of
enticement speaks only to how the offender draws a minor into a position where the
minor could be subjected to an illegal act. It does not address what sort of intended
illegal act would satisfy the second element of the offense. Enticement may be
accomplished, for example, simply by asking a minor to help find a lost puppy,
regardless of what the offender intends to do next. Hansen, 750 N.W.2d at 114.
Looking only at the plain text of the Iowa statute, we cannot exclude the
possibility that an offender could be prosecuted for enticing a minor with intent to
commit disorderly conduct or harassment upon a minor. Disorderly conduct involves
making “loud and raucous noise” in the vicinity of a residence or public building
“which intentionally or recklessly causes unreasonable distress to the occupants
thereof.” Iowa Code § 723.4(2). An offender theoretically could entice a minor to
visit a building and then blare loud music upon the minor to cause unreasonable
distress. Harassment in the third degree includes communicating with another person
without legitimate purpose, with intent to “annoy” or “alarm,” and in a manner likely
to cause “annoyance or harm.” Id. § 708.7(1)(a)(1). One theoretically could entice
-5-
a minor to answer a telephone call for the purpose of taunting the child in a manner
that is likely to cause “annoyance,” thereby committing harassment upon the minor.
However unlikely these scenarios may be, they come within the plain meaning of the
Iowa statute.2
Whether there is a categorical match between the federal removal statute and
the Iowa enticement statute may depend on how the Board and the court apply the
“realistic probability” inquiry. As noted, the Supreme Court has said that “there must
be ‘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.’” Moncrieffe,
569 U.S. at 191 (quoting Duenas-Alvarez, 549 U.S. at 193). There are two schools
of thought on this requirement.
On one view, illustrated by Mowlana v. Lynch, 803 F.3d 923 (8th Cir. 2015),
the analysis does not stop with the plain language of a statute that allows for “fanciful
hypotheticals” or “theoretical possibilities” that would defeat a categorical
comparison. Id. at 925. Mowlana cited Moncrieffe, where the Supreme Court
described the “realistic probability” requirement as a “qualification” on the
categorical approach, and said that a noncitizen must “demonstrate that the State
actually prosecutes the relevant offense in cases involving” nongeneric conduct. 569
U.S. at 191, 206.
2
We can exclude other hypotheticals proffered by Peh because they do not
involve an intent to commit an illegal act “upon a minor.” Peh suggests that the
statute prohibits enticement with intent to commit illegal acts such as driving above
the speed limit, selling bubble gum without a license, operating a motor vehicle
without a driver’s license in immediate possession, failing to clean up after a dog, and
abandoning a refrigerator with lockable doors in a place accessible to children. But
just as one does not possess marijuana “upon” another person, see State v. Holtz, No.
15-1058, 2016 WL 4036112, at *3 (Iowa Ct. App. July 27, 2016), an offender does
not commit any of these illegal acts “upon” a minor.
-6-
In Moncrieffe, the government expressed concern that a conviction under a
state firearms law that did not contain an exception for “antique firearms” would fail
to qualify as an aggravated felony, because the corresponding federal statute includes
an exception for antique firearms. The Court responded that “[t]o defeat the
categorical comparison in this manner, a noncitizen would have to demonstrate that
the State actually prosecutes the relevant offense in cases involving antique firearms.”
Id. at 206. Mowlana read that discussion to mean that “[o]ur analysis of realistic
probability must go beyond the text of the statute of conviction to inquire whether the
government actually prosecutes offenses . . . in cases involving hypothetical conduct
that would not qualify” under a generic federal definition. 803 F.3d at 925; see also
Fletcher v. United States, 858 F.3d 501, 507-08 (8th Cir. 2017); Armenta-Lagunas
v. Holder, 724 F.3d 1019, 1024 (8th Cir. 2013).
A competing view, however, holds that where “the statute’s reach is clear on
its face,” the “realistic probability” is “evident from the language of the statute itself.”
Gonzalez v. Wilkinson, 990 F.3d 654, 660 (8th Cir. 2021). In that situation, an alien
need not demonstrate any likelihood that the State actually prosecutes cases under
hypothetical scenarios that come within the plain language of the statute. Id. at 660-
61. On this understanding, the realistic probability inquiry focuses on how a state
statute might be applied when a statute has indeterminate reach, not on a State’s
enforcement practices under an unambiguous statute or the frequency with which
prohibited conduct is prosecuted. Id. at 660. Gonzalez read Moncrieffe and Duenas-
Alvarez to support this conclusion, and adverted to a conflict in the circuits on the
question. Compare, e.g., Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018), and
Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017), with United States v. Vail-Bailon,
868 F.3d 1293, 1306-07 (11th Cir. 2017) (en banc), and United States v. Castillo-
Rivera, 853 F.3d 218, 222-24 (5th Cir. 2017) (en banc).
The Board’s decision in this case is not clear about how it understood the
“realistic probability” requirement. The decision said that Peh had “not established
-7-
a realistic probability that Iowa would successfully prosecute a violation of Iowa
Code § 710.10(3) involving any of the ‘illegal acts’ he cites to in his brief.” The
Board could mean only that the State would not “successfully prosecute” enticement
with intent to commit disorderly conduct or harassment because the text of the statute
would not encompass that conduct. If so, then we disagree for the reasons discussed,
and the Board should determine on remand whether § 710.10(3), so understood,
constitutes a crime of child abuse. Alternatively, the Board could mean that the State
would not successfully prosecute enticement with intent to commit disorderly conduct
or harassment, because there is no showing that those hypothetical scenarios have
ever occurred or that the State actually prosecutes the offense in those situations. We
decline to review the latter rationale at this stage, however, because the conclusion
is not clear on the face of the Board’s decision (it would involve an awkward use of
the word “successfully”), and the government expressly disavows that approach in
its brief on appeal. Resp’t Br. 17-18. The Board may clarify its reasoning on remand
as warranted.
For these reasons, the petition for review is granted, the Board’s decision of
February 24, 2020, is vacated, and the case is remanded for further proceedings.
______________________________
-8-