PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-1835 _____________ NELIDA BEATRIZ CABEDA, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________ On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA A042-791-483) Immigration Judge: John P. Ellington _______________ Argued January 14, 2020 Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges (Filed: August 18, 2020) _______________ Thomas M. Griffin [ARGUED] Surin & Griffin 718 Arch Street, Suite 701N Philadelphia, PA 19106 Counsel for Petitioner William P. Barr Andrew J. Oliveira [ARGUED] Gregory A. Pennington, Jr. United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent _______________ OPINION OF THE COURT _______________ JORDAN, Circuit Judge. We deal today with another appearance of what is known as the “categorical approach” to determining whether and how a conviction under state law will have consequences for the convicted criminal under federal law. We must apply it now in an immigration case, but, in whatever context it surfaces, it’s a fair bet that this formalistic framework may result in some counterintuitive and hard-to-justify outcome. And so it does here. Argentine citizen Nelida Beatriz Cabeda, a woman in her thirties, was convicted in Pennsylvania state court of having involuntary deviate sexual intercourse with a teenage boy. That conviction ultimately led immigration authorities 2 to find her removable for having committed what they concluded is a state-law offense qualifying as an “aggravated felony,” 8 U.S.C. § 1227(a)(2)(A)(iii), specifically the “sexual abuse of a minor,” id. § 1101(a)(43)(A). Cabeda has petitioned for review of that decision, arguing that, notwithstanding her actual, admitted sexual abuse of a minor, she cannot be removed on that basis. That is so, she says, because the Pennsylvania statute under which she was convicted could conceivably be violated by conduct that falls short of satisfying all the elements of the federally defined crime of sexual abuse of a minor. Regrettably, she is right. The categorical approach mandates our accedence to Cabeda’s demand that we ignore what she actually did and focus instead on what someone else, in a hypothetical world, could have done. That’s the analytical box the categorical approach puts us in. Thus, even though it is indisputable on this record – and, in fact, no one does dispute – that Cabeda repeatedly had sex with a minor, when we assess her conviction alongside the pertinent federal statutes, the categorical approach blinds us to the facts and compels us to hold that the crime of which she was convicted does not amount to the aggravated felony of “sexual abuse of a minor.” It is a surpassingly strange result but required by controlling law. I. BACKGROUND Cabeda is a citizen of Argentina who entered the United States in 1991 as a lawful permanent resident. Many years later, as alluded to above, she repeatedly engaged in vaginal and oral sex with a 15-year-old boy. She was 34 years old ...
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