NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 20-3626 ______________ RICHARD MCKOY, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of an Order of the Board of Immigration Appeals (A058-349-641) Immigration Judge: Jack Weil ______________ Submitted Under Third Circuit L.A.R. 34.1(a) October 25, 2021 ______________ Before: GREENAWAY, JR., PHIPPS, and COWEN, Circuit Judges. (Opinion Filed: October 26, 2021) ______________ OPINION* ______________ GREENAWAY, JR., Circuit Judge. Richard McKoy seeks review of the final order of removal finding him removable * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), based on his conviction for unlawful contact with a minor, in violation of 18 Pa. Cons. Stat. § 6318(a)(1). McKoy asserts that both the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) erred when they concluded that § 6318(a)(1) was divisible and therefore amenable to review under the modified categorical approach. As we explain below, we agree that the statute is divisible and will therefore deny the petition for review. I. Background McKoy, a native and citizen of Jamaica, entered the United States in 2009 as a legal permanent resident. In 2018, in the Philadelphia Court of Common Pleas, McKoy was charged in an eight-count criminal information. He pled guilty to count one, charging him with unlawful contact with a minor, in violation of 18 Pa. Cons. Stat. § 6318(a)(1), and count four, charging him with indecent assault without consent, in violation of 18 Pa. Cons. Stat. § 3126(a)(1). Based on these offenses, McKoy was charged with removability for having been convicted of a crime of child abuse, pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), and for having been convicted of an aggravated felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).1 Before the IJ, McKoy admitted to the factual allegations in the Notice to Appear (“NTA”), but denied the charges of removability and moved to terminate the 1 The IJ dismissed the charge made pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The government did not seek review of that decision before either the BIA or this Court. This opinion focuses solely on the issues raised in connection with § 1227(a)(2)(E)(i). 2 proceedings. McCoy made clear that he sought no other relief from removal. With respect to the child abuse offense, McKoy did not question whether § 6318(a)(1) satisfied the definition of child abuse when the victim was a minor. Instead, he argued that the underlying Pennsylvania statute2 encompasses conduct that is broader than the generic definition of child abuse for immigration purposes. Specifically, he focused on the fact that someone could be convicted under the Pennsylvania statute based on conduct involving a minor or a law enforcement officer assuming the identity of a minor, thus encompassing conduct not involving a minor. Arguing that the statute was indivisible under the categorical approach,3 McCoy asserted that his removal proceedings should be terminated. The IJ disagreed with McKoy’s position, …
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