Background
Sofiqul Islam, a Bangladeshi national and lawful permanent resident, pleaded guilty in New York to second-degree sexual abuse under NYPL § 130.60(2), which prohibits sexual contact with a person under 14. The Department of Homeland Security charged him as removable because the conviction constituted the aggravated felony of sexual abuse of a minor under the Immigration and Nationality Act. The immigration judge sustained that charge.
Islam also sought protection under the Convention Against Torture, asserting that he would resume supporting the Bangladesh Nationalist Party and could be harmed for his political activity or for violating government curfews. The immigration judge found him credible but concluded that he had not shown he was more likely than not to be tortured. The Board of Immigration Appeals affirmed, and Islam petitioned for review.
The Court’s Holding
The Third Circuit held that Islam’s New York offense categorically qualifies as sexual abuse of a minor under the INA. The court rejected his argument that Loper Bright Enterprises v. Raimondo freed the panel from circuit precedent that had relied on Chevron deference. Loper Bright ended Chevron deference prospectively but did not, the court explained, eliminate the statutory stare decisis effect of earlier holdings merely because they used the Chevron framework.
The court also rejected each asserted categorical mismatch. It held that existing precedent treats 18 U.S.C. § 3509(a)(8), rather than the narrower 18 U.S.C. § 2243(a), as the primary guide to the conduct covered by the generic federal offense; that the federal offense does not require an age difference between perpetrator and victim; and that New York’s definition of sexual contact requires knowing or intentional touching rather than merely reckless or negligent contact. Because Islam’s challenges did not present a colorable legal claim sufficient to overcome the aggravated-felony jurisdictional bar, the court dismissed the removability portion of his petition for lack of jurisdiction.
The court denied the remainder of the petition concerning CAT protection. Substantial evidence supported the agency’s finding that Islam had not shown he was more likely than not to be tortured in Bangladesh based on his BNP affiliation or possible curfew violations. Although the BIA’s unsupported statement that conditions had “greatly improved” was concerning, any error was harmless because the immigration judge’s denial was independently supported by the evidence.
Key Takeaways
- Loper Bright does not by itself permit a Third Circuit panel to disregard circuit precedent that adopted an agency’s statutory interpretation under Chevron.
- NYPL § 130.60(2) is a categorical match for the INA aggravated felony of sexual abuse of a minor, despite containing no perpetrator-victim age-gap element.
- Substantial evidence supported denial of CAT protection because Islam did not establish an individualized likelihood of torture in Bangladesh.
Why It Matters
The opinion addresses how courts should treat Chevron-era circuit precedent after Loper Bright, holding that a change in interpretive methodology alone does not erase the binding force of prior statutory holdings. It also resolves in the Third Circuit that the generic INA offense of sexual abuse of a minor does not require a minimum age differential outside the statutory-rape context presented in earlier Supreme Court precedent.