Sofiqul Islam v. Attorney General United States of America

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT No. 25-1101 SOFIQUL ISLAM, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA _____________________________ On Petition for Review of a Decision of the Board of Immigration Appeals Immigration Judge Richard Bailey, No. A060-503-943 Before: KRAUSE, PHIPPS, and CHUNG, Circuit Judges Argued Dec. 11, 2025; Filed Oct. 14, 2026 _____________________________ OPINION OF THE COURT KRAUSE, Circuit Judge. Sofiqul Islam invites us to disregard our prior interpretation of the phrase “sexual abuse of a minor” in the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(43)(A), in view of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). We decline. The full implications of Loper Bright on our Court’s interpretation of federal statutes have yet to be determined, but one thing is already clear: While Loper Bright has prohibited us from applying Chevron deference to agencies’ interpretations of ambiguous statutory provisions going forward, see Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), it also sought to minimize disruption to existing precedent which already applied that deference. Our precedent controls here and forecloses Islam’s arguments that the New York statute under which he was convicted for second-degree sexual abuse criminalizes a broader range of conduct than the federal generic offense of sexual abuse of a minor. For that reason, and because Islam’s other claims of error are unavailing, we will dismiss in part and deny in part his petition for review. I. FACTUAL AND PROCEDURAL HISTORY A. Life in Bangladesh and Entry into the United States1 Islam is a 43-year-old national of Bangladesh who was admitted to the United States as a lawful permanent resident in 2009. As a teenager, Islam joined the Bangladesh Nationalist Party (BNP), one of the country’s two biggest political parties. He regularly attended meetings for BNP members and volunteered to help organize BNP rallies, distribute leaflets, 1 The Immigration Judge (IJ) found Islam to be credible. The following facts are drawn from the record and Islam’s testimony, which the IJ found “would be sufficient for him to meet his burden of proof.” A.R. 122. 2 and undertake outreach with community members, among other activities. During periods when the BNP has been out of power in Bangladesh, its leaders have been targeted with detention and “false or trumped-up charges,” App. 12, and its members have faced harassment, threats, and violence, including at the hands of supporters and members of the BNP’s rival political party, the Awami League. That was Islam’s experience when he attended three BNP rallies in 1998 at which Awami League members threw Molotov cocktails and smoke bombs into the crowd, and stabbed, shot, and beat attendees. Other than some minor cuts he sustained when fleeing the rallies, Islam was not personally harmed by Awami League members, nor was he arrested or detained while living in Bangladesh. Yet by 2009, Islam nevertheless decided that he “could no longer live a normal life in Bangladesh as an active BNP member.” A.R. 227 ¶ 6. He then immigrated to New York to join his wife, a U.S. citizen whom he had married in 2006 and with whom he has two children who are also U.S. citizens. B. Islam’s Conviction and Removal Proceedings In May 2022, Islam was arrested and pleaded guilty to one count of misdemeanor sexual abuse in the second degree under New York Penal Law (NYPL) § 130.60(2), which prohibits “sexual contact” with a person “[l]ess than fourteen years old.” Islam was sentenced to 364 days in jail. This was his first arrest and criminal charge. 3  At the conclusion of his sentence, the Department of Homeland Security apprehended Islam and served him with a Notice to Appear, which, as relevant here, charged him as removable on the basis that his New York conviction constituted an aggravated felony under the INA—specifically, the sexual abuse of a minor predicate offense. See 8 U.S.C. § 1101(a)(43)(A). Although Islam disputed that his conviction rendered him removable under the INA, the Immigration Judge (IJ) denied his motion to terminate on that basis and sustained the charge of removability. The IJ’s opinion cited a Second Circuit opinion and one of our nonprecedential opinions, both of which concluded that Islam’s statute of conviction, NYPL § 130.60(2), was a categorical match for the aggravated felony of sexual abuse of a minor under the INA. See A.R. 426 (citing Debique v. Garland, 58 F.4th 676 (2d Cir. 2023); Reyes v. Att’y Gen., No. 22-1493, 2023 WL 2184831 (3d Cir. Feb. 23, 2023)).2 2 In addition to the aggravated felony charge, Islam’s Notice to Appear charged him as removable based on a conviction of a crime of child abuse, neglect, or abandonment under 8 U.S.C. § 1227(a)(2)(E)(i), and for a crime of moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). In the IJ’s written decision, he declined to sustain the latter charge of removability and did not reach the question of whether Islam was removable for a child abuse, neglect, or abandonment conviction. Yet in the IJ’s oral decision, he incorrectly stated that he had, in fact, sustained the child abuse, neglect, or abandonment charge of removability. 4  Islam also sought relief from removal under the Convention Against Torture (CAT) on the grounds that if he were returned to Bangladesh he would (1) resume his participation in the BNP and likely be attacked for his political activities and (2) be severely harmed or shot because he would have no place to take shelter during curfews imposed in July 2024 by the Bangladeshi authorities, who had ordered that violators be shot on sight.3 Following a merits hearing, the IJ issued a decision finding Islam credible but denying him CAT relief. The IJ acknowledged that the Awami League was still in power in Bangladesh and had continued to target BNP members and leaders, as well as other civilians, leading up to and after the January 2024 elections, through baseless arrests, detentions, and prosecutions; violent crackdowns on protests; internet shutdowns; and the nighttime curfews. Nonetheless, the IJ denied CAT relief because Islam failed to present sufficient The Board of Immigration Appeals (BIA) recognized that this was error and that the only sustained charge of removability was for an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). 3 Initially, Islam also sought asylum and withholding of removal, but the IJ’s finding that Islam’s conviction was a categorical match for the sexual abuse of a minor aggravated felony rendered him ineligible for either form of relief. See 8 U.S.C. § 1231(b)(3)(B)(ii). Islam thus pursued only his CAT claim at his merits hearing. 5 evidence that he personally would be targeted for his involvement in the BNP or would be at risk of being shot or detained for violating the curfew. C. Board of Immigration Appeals Proceedings Islam appealed to the Board of Immigration Appeals (BIA) without success. He reiterated his argument that the underlying authorities on which the IJ relied to conclude his state conviction was a categorical match for the aggravated felony of sexual abuse of a minor were abrogated by Loper Bright. The BIA was unconvinced and affirmed the IJ’s aggravated felony determination. It also upheld the IJ’s denial of CAT relief, taking “administrative notice” of changes in the political landscape in Bangladesh since the IJ’s decision, noting that Prime Minister Hasina of the Awami League had been ousted from power in August 2024 and replaced with interim Prime Minister and Nobel Peace Prize winner Muhammad Yunis, and that “current country conditions [had] greatly improved” under Yunis. App. 6. Islam timely filed this petition for review. II. JURISDICTION AND STANDARD OF REVIEW The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b). We have jurisdiction to review both claims Islam raises in his petition—that (1) his New York conviction is not an aggravated felony that renders him removable under the INA, and (2) the IJ and BIA erred in denying him CAT relief. 6  On the first claim, while we lack jurisdiction to review any final order of removal against a noncitizen who has committed an aggravated felony, see 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction over colorable “constitutional claims or questions of law raised upon a petition for review,” id. § 1252(a)(2)(D); see also Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010). We review de novo the question of whether Islam’s offense of conviction is an aggravated felony, since it is “a purely legal question, and one that governs our own jurisdiction.” Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). On Islam’s CAT claim, we retain jurisdiction over factual challenges to denials of CAT relief, which we review under the highly deferential substantial evidence standard. Nasrallah v. Barr, 590 U.S. 573, 583-84 (2020); see id. at 584 (explaining that the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary” (quoting 8 U.S.C. § 1252(b)(4)(B))). Finally, because the BIA “invoke[d] specific aspects of the IJ’s analysis and factfinding in support of [its] conclusions” with respect to both the categorical analysis and the denial of CAT relief, we review both the BIA’s and IJ’s decisions. See Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir. 2012). III. DISCUSSION Sexual abuse of a minor is one of the crimes the INA designates as an “aggravated felony,” 8 U.S.C. 7 § 1101(a)(43)(A), which renders a noncitizen removable if he commits that crime while living in the United States, id. § 1227(a)(2)(A)(iii). See Cabeda v. Att’y Gen., 971 F.3d 165, 168 (3d Cir. 2020). Islam asserts in his petition for review that his New York criminal conviction is not a categorical match for the federal generic offense of sexual abuse of a minor, and, in the alternative, that he is entitled to relief from removal under CAT.4 As explained below, we disagree on both fronts. We will first address the question of Islam’s removability before turning to his application for relief under CAT. 4 We employ the categorical approach to review the agency’s determination that Islam’s New York conviction for second- degree sexual abuse qualifies as sexual abuse of a minor under the INA. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). Under this two-step approach, we first ascertain the federal generic definition of sexual abuse of a minor, and then we determine if conduct meeting that federal definition (and nothing more) is necessary to be convicted under NYPL § 130.60(2). See id.; see also Shular v. United States, 589 U.S. 154, 158 (2020). This approach demands that we “ignor[e] the particular facts of the case” and “focus solely on whether the elements of the crime of conviction sufficiently match the elements of [the] generic [federal offense].” Mathis v. United States, 579 U.S. 500, 504 (2016). 8  A. Sexual Abuse of a Minor as an Aggravated Felony Under the INA Islam argues that his offense under New York law cannot render him removable because the statute of conviction is broader than the federal generic definition of sexual abuse of a minor, and thus a categorical mismatch, in three respects: (1) the state law criminalizes a wider range of sexual conduct than the federal generic definition; (2) the state law requires no age differential between perpetrator and victim, while the federal generic definition mandates a four-year age gap; and (3) the state law requires a less culpable mens rea (mere recklessness or criminal negligence suffices) than the federal generic definition, which requires a knowing or intentional mental state. As explained below, the first argument is foreclosed by our precedent, which we have no grounds to revisit; the second—though a matter of first impression for our Court— and the third are meritless. 1. Range of Proscribed Sexual Conduct Islam offers two reasons why the range of conduct prohibited by the New York statute exceeds the range proscribed by the federal generic offense. First, he contends that the proscribed sexual acts in the federal generic offense should encompass only the narrow range of conduct proscribed in 18 U.S.C. § 2243(a)—which criminalizes “contact,” “penetration,” or “intentional touching, not through the clothing, of the genitalia of another person,” id. § 2246(2)—as opposed to the broader definition of sexual abuse of a child in 9 18 U.S.C. § 3509, a statute that enumerates child victims’ and witnesses’ rights in criminal cases and defines sexual abuse to include “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,” id. § 3509(a)(8). Though Islam recognizes that we rejected that argument in prior caselaw, he asserts that Loper Bright empowers us to cast aside that precedent. Second, he argues that even if the federal generic offense encompasses the proscribed conduct in § 3509(a)(8), the New York statute still sweeps more broadly. Neither argument is persuasive. a. Proscribed conduct in the federal generic offense Our Court has already considered what conduct is prohibited by the federal generic offense of sexual abuse of a minor, and we have rejected the definition in § 2243(a) twice over. In Restrepo v. Attorney General, we deferred to the BIA’s interpretation of the term “sexual abuse of a minor” in the INA, see 8 U.S.C. § 1101(a)(43), which drew on § 3509(a)(8). 617 F.3d 787, 792-97 (3d Cir. 2010) (citing Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999)).5 The BIA chose § 3509(a)(8) as its benchmark for 5 The INA “does not expressly define sexual abuse of a minor,” Esquivel-Quintana v. Sessions, 581 U.S. 385, 388 (2017), as 10 identifying what conduct amounts to sexual abuse of a minor after surveying federal statutes defining sexual abuse of a child, explicitly noting that § 3509(a)(8) was a better guide than § 2243(a). See Rodriguez-Rodriguez, 22 I. & N. at 996. We then reaffirmed Restrepo in Cabeda, concluding that Restrepo was not abrogated by the Supreme Court’s intervening decision in Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017). See Cabeda, 971 F.3d at 171. There, the Supreme Court eschewed Chevron deference and engaged in an independent statutory and constitutional analysis of the INA—specifically, to determine whether the federal generic definition of sexual abuse of a minor encompassed state statutory rape offenses criminalizing conduct based solely on opposed to other aggravated felonies, which the INA defines by expressly cross-referencing criminal statutes, see, e.g., 8 U.S.C. § 1101(a)(43)(B) (stating that 21 U.S.C. § 802 provides the definition of “illicit trafficking in a controlled substance”); id. § 1101(a)(43)(C) (stating that 18 U.S.C. § 921 provides the definition of “illicit trafficking in firearms or destructive devices”); id. § 1101(a)(43)(D) (making “laundering of monetary instruments,” at least beyond a monetary threshold and as defined in 18 U.S.C. §§ 1956 or 1957, an aggravated felony). Where, as here, the INA fails to define a specific aggravated felony, we turn to “the normal tools of statutory interpretation,” including consultation of other related federal statutes containing the same statutory term. Esquivel- Quintana, 581 U.S. at 391; see also id. at 393-94. 11 the participants’ ages. Esquivel-Quintana, 581 U.S. at 388-89, 397-98. We acknowledged in Cabeda that there was “some tension” between the Supreme Court’s approach in Esquivel- Quintana and our heavy reliance in Restrepo on the BIA’s reading of the INA. Cabeda, 971 F.3d at 171. But we concluded, notwithstanding a concurrence that vigorously disagreed on this point, see id. at 185-99 (Krause, J., concurring in part and in the judgment), that the Supreme Court’s shift to a “more searching and nuanced” methodology in Esquivel-Quintana did not undermine “the substantive conclusions reached in earlier cases,” including Restrepo—at least not without more from the Court to “signal so dramatic a step,” id. at 171-72 n.4 (majority opinion). According to Islam, in the wake of Loper Bright, we are no longer bound by precedent that applied Chevron deference, which includes both Restrepo and Cabeda. We read Loper Bright differently. That opinion made explicit what we saw in Cabeda as being implicit in Esquivel-Quintana: We should decline to apply Chevron deference prospectively, but with respect to our existing precedent, “shifting interpretive methodologies” should not themselves be “viewed as carrying the force of stare decisis” or as overturning “our prior precedential decisions . . . to the extent they [afforded] broad Chevron deference to the BIA’s interpretation of immigration statutes,” id. To put a finer point on it, as the Supreme Court explicitly stated in Loper Bright, “we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are 12 lawful . . . are still subject to statutory stare decisis despite our change in interpretive methodology,” and “[m]ere reliance on Chevron cannot constitute a special justification for overruling” those holdings. 603 U.S. at 412 (citation modified). Loper Bright is not, as Islam would have it, susceptible to being read as only preserving a court’s application of an approved agency interpretation to a particular set of facts, in contrast with the court’s “adoption of agencies’ interpretations of law.” Reply Br. 8. Rather, the Supreme Court instructed lower courts in Loper Bright to continue treating the “holdings of those cases that specific agency actions are lawful” as subject to “statutory stare decisis,” 603 U.S. at 412—a term that generally refers to an opinion’s legal rules and interpretations, not just a “fact- and party-bound result,” Bastias v. Att’y Gen., 158 F.4th 1188, 1196 (11th Cir. 2025) (Newsom, J., concurring in the judgment) (noting that stare decisis “dictates . . . which legal principle should apply” (citation modified) (quoting Bryan A. Garner et al., The Law of Judicial Precedent 374 (2016))). Indeed, the Court was explicit that it was not “call[ing] into question prior cases that relied on the Chevron framework,” and gave the “Clean Air Act holding of Chevron itself,” which is hardly a fact-specific holding, as one such example of a specific agency action. Loper Bright, 603 U.S. at 412. At bottom, Islam is simply arguing that this Court should follow the approach of the Cabeda concurrence, which 13 the majority in that case rejected. In the absence of a ruling by this Court sitting en banc or an intervening Supreme Court decision that conflicts with that precedent, we are “bound by the precedential decisions of earlier panels,” Virgin Islands v. Martinez, 620 F.3d 321, 327 (3d Cir. 2010) (citing 3d Cir. I.O.P. 9.1), and Loper Bright does not change that calculus.6 6 Several circuits have explicitly agreed. See, e.g., Garcia Pinach v. Bondi, 147 F.4th 117, 120-21 (2d Cir. 2025) (determining “Loper Bright provides no basis to disregard” precedent that had deferred to the BIA’s interpretation of the INA); Lopez v. Garland, 116 F.4th 1032, 1045 (9th Cir. 2024) (concluding that the court was bound by a Chevron-era panel decision that deferred to the BIA’s interpretation of the INA); Gutierrez-Mikan v. Att’y Gen., 163 F.4th 1331, 1335 n.2 (11th Cir. 2026) (“[T]he Supreme Court was clear that Loper Bright ‘did not call into question prior cases that relied on the Chevron framework.’” (quoting Loper Bright, 603 U.S. at 376)). And no Court of Appeals has definitively held that Loper Bright overrides the substantive conclusions of previous decisions that adopted an agency’s interpretation of a statute. The Sixth Circuit’s approach appears unsettled: For instance, it construed “specific agency action” narrowly in In re MCP No. 185, 124 F.4th 993, 1002-03 (6th Cir. 2025) (construing “specific agency action” to refer to a particular administrative ruling by the Federal Communications Commission, and holding that it was “not bound” by a prior case based on Chevron deference that had affirmed a different ruling by the 14  Even if we assumed for these purposes that Loper Bright’s overturning of Chevron did license us to reexamine past panels’ decisions that were founded on Chevron deference, that would not lead us to a different outcome here. For one thing, Restrepo did not rely exclusively on Chevron and considered arguments beyond agency deference. The decision noted, for instance, that “the reasonableness of the BIA’s resort to § 3509(a) to define ‘sexual abuse of a minor’ is rooted in the consonance between that statutory provision and Commission), but interpreted “specific agency action” more broadly in Tennessee v. Becerra, 131 F.4th 350, 366 (6th Cir. 2025) (observing that a “‘specific agency action’ attaches to an agency’s particular construction of a statute” (quoting Loper Bright, 603 U.S. at 376)), cert. granted, judgment vacated, appeal dismissed as moot sub nom. Tennessee v. Kennedy, --- S. Ct. ---, 2026 WL 135717, at *1 (Jan. 20, 2026). The Fourth Circuit expressed some concerns with reading Loper Bright to permit strict adherence to all precedent deferring to agencies’ interpretation of statutes, because that would effectively lock in “the most recent agency interpretation that [a court] upheld before Loper Bright,” and thus upset the pre-Loper Bright status quo where “agencies were, within certain bounds, permitted to change their interpretations of a statute.” Ozurumba v. Bondi, 153 F.4th 396, 406 (4th Cir. 2025), petition for cert. filed sub nom. Blanche v. Ozurumba, No. 25-1343 (U.S. June 2, 2026). But the court left open the question of how to approach deferring to agencies’ interpretations of statutes. Id. 15 the commonly accepted definition of ‘sexual abuse,’” 617 F.3d at 796; it clarified that defining the proscribed sexual contact in the federal generic offense in relation to § 3509(a)(8) was “consistent with principles of statutory construction,” was “a logical extension of our precedent,” and was in accord with sister circuit decisions, including several that did not apply Chevron deference, id. at 796-97; and it explained why § 2243(a) was not the proper referent for the federal generic offense, id. at 797-98. For another, we see no independent “legal basis for departing from” Restrepo, Abdulla v. Att’y Gen., 153 F.4th 342, 352 (3d Cir. 2025), that we did not already address and reject in Cabeda, cf. 971 F.3d at 189 (Krause, J., concurring in part and in the judgment) (identifying “five respects” in which Restrepo “misinterpreted or ignored key clues about § 1101(a)(43)’s meaning,” which the majority rejected); see id. at 189-92. In sum, § 3509(a)(8), not § 2243(a), continues to be the “primary guide” for defining the conduct proscribed in the federal generic offense of sexual abuse of a minor. Id. at 172 (majority opinion). As explained below, Islam’s statute of conviction is not broader than that definition. b. The scope of the New York statute relative to § 3509(a)(8) The New York statute under which Islam was convicted of second-degree sexual abuse criminalizes “subject[ing] 16 another person” who is “[l]ess than fourteen years old” to “sexual contact.” NYPL § 130.60(2). As Islam sees it, the minimal culpable conduct under the New York statute sweeps in conduct even broader than what § 3509(a)(8) defines as sexual abuse, including “mere kissing as well as brief touching of other parts of the body such as the neck, navel, or leg.” Opening Br. 2. Again, however, Islam’s argument runs up against our precedent. In Cadapan v. Attorney General, 749 F.3d 157 (3d Cir. 2014), we interpreted a Pennsylvania statute that defined “indecent contact” in terms nearly identical to the definition of “sexual contact” in the New York statute of conviction.7 See 7 New York law defines “sexual contact” as: “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party,” including “touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.” NYPL § 130.00(3). Meanwhile, the Pennsylvania statute interpreted in Cadapan, see 18 Pa. Cons. Stat. § 3126, defines “indecent contact” as: “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person,” 18 Pa. Cons. Stat. § 3101. Pennsylvania and New York courts’ construction of the phrase “sexual or other intimate parts,” which is not defined in either NYPL § 130.00(3) or 18 Pa. Cons. Stat. § 3101, has also been strikingly similar. 17 18 Pa. Cons. Stat. § 3126. We concluded that all conduct proscribed by the Pennsylvania statute fell within the dictionary definitions of “molestation” and “sexual Pennsylvania courts have interpreted the phrase to include “any body part that is personal and private, and which the person ordinarily allows to be touched only by people with whom the person has a close personal relationship, and one which is commonly associated with sexual relations or intimacy.” Commonwealth v. Crenshaw, 306 A.3d 383, 395 (Pa. Super. Ct. 2023) (internal quotation marks omitted) (quoting Commonwealth v. Gamby, 283 A.3d 298, 313-14 (Pa. 2022)); see also Commonwealth v. Fisher, 47 A.3d 155, 158 (Pa. Super. Ct. 2012) (noting “indecent contact” could include touching of “[t]he backs of the legs . . . shoulders, neck, and back”). Similarly, New York courts have interpreted the identical phrase to include “considerations other than mere anatomical location, such as what area of the body is touched, what is the manner of the touching, and under what circumstances did the touching take place.” Rodriguez v. Barr, 975 F.3d 188, 193 (2d Cir. 2020) (citation modified) (quoting People v. Morbelli, 544 N.Y.S.2d 442, 446 (N.Y. Crim. Ct. 1989)); see also, e.g., People v. Graydon, 492 N.Y.S.2d 903, 904-05 (N.Y. Crim. Ct. 1985) (holding that defendant rubbing the victim child’s leg constituted proscribed sexual contact under NYPL § 130.00(3)); People v. Belfrom, 475 N.Y.S.2d 978, 980 (N.Y. Sup. Ct. 1984) (holding the same where defendant forced his victim to touch his navel with her fingernails). 18 exploitation” of a child as those terms were used in § 3509(a)(8) (criminalizing the “molestation, prostitution, or other form of sexual exploitation of children”),8 and thus “constitute[d] . . . by extension, sexual abuse of a minor” under the INA. Cadapan, 749 F.3d at 161. Given the substantial similarities between the New York and Pennsylvania statutes, Cadapan leads us to the same result here. Islam’s arguments to the contrary are unavailing. The interpretation of both “molestation” and “sexual exploitation” in Cadapan was a core reason why we concluded the petitioner’s Pennsylvania conviction was an aggravated felony under the INA; it was not, as Islam characterizes it, mere dictum, which is “a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding” and “may not have received the full and careful consideration of the court that uttered it.” United States v. Mallory, 765 F.3d 373, 381 (3d Cir. 2014) (citation modified). And, in determining that the scope of proscribed conduct in Islam’s statute of conviction and the 8 “Molestation” is defined, in part, as “the act of making unwanted and indecent advances to or on someone, especially for sexual gratification,” while “sexual exploitation” is defined as “the use of a person, especially a child, in prostitution, pornography, or other sexually manipulative activity that has caused or could cause serious emotional injury.” Cadapan, 749 F.3d at 161 & n.6 (citation modified) (quoting Black’s Law Dictionary 1096, 1498-99 (9th ed. 2009)). 19 federal generic offense are a categorical match, we do not, as Islam contends, affirm an agency decision on grounds the agency itself did not invoke. See Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947). The BIA’s rationale was that Islam’s “conviction qualifies as an aggravated felony,” App. 6, which includes convictions under laws that criminalize conduct encompassed in “molestation” or “sexual exploitation of children” under § 3509(a)(8).9 Because the scope of conduct prohibited by the federal generic offense is defined by § 3509(a)(8) and the range of conduct prohibited by the New York statute fits within that definition, the New York statute does not sweep more broadly than the federal generic definition as to the proscribed conduct. In short, there is no categorical mismatch on that basis. 9 The two cases cited by the BIA in support of this conclusion do not suggest otherwise: Debique affirmed the BIA’s determination that the petitioner’s conviction under NYPL § 130.60(2) fell “within the meaning of either the use of a child to engage in sexually explicit conduct or the molestation or sexual exploitation of children as contained in 18 U.S.C. § 3509(a)(8),” 58 F.4th at 680-81; see id. at 679-80, 684, and Reyes—which, in any case, is a non-binding, unpublished decision—agreed with the Second Circuit’s conclusion in Debique, see 2023 WL 2184831, at *3. 20  2. Age Differential Between Perpetrator and Victim Islam’s next argument for a categorical mismatch is that the New York statute does not require any age differential between the perpetrator and victim, while the federal generic definition of sexual abuse of a minor captures only offenses committed by a perpetrator who is at least four years older than the victim. Islam Br. 36-37. We agree with Islam on the former but disagree on the latter. First, the New York statute does not require an age gap between the perpetrator and victim. It requires that the victim be “[l]ess than fourteen years old,” NYPL § 130.60(2), but is silent as to the perpetrator’s age. By contrast, surrounding statutory provisions do specify the perpetrator’s age,10 which further suggests that the New York legislature’s choice not to do so in NYPL § 130.60(2) was intentional. True, at the time Islam committed his offense, individuals under the age of 16 could not be held criminally responsible for misdemeanor conduct, including Islam’s offense, under New York law.11 10 See, e.g., NYPL § 130.65(4) (first-degree sexual abuse); id. § 130.66(1)(d) (third-degree aggravated sexual abuse); id. § 130.75(1)(b) (course of sexual conduct against a child in the first degree); id. § 130.80(1)(b) (same, in the second degree); id. § 130.96 (predatory sexual assault against a child). 11 For instance, NYPL § 10.00(18) listed the offenses for which an individual younger than 16 could be held “criminally responsible,” and § 130.60 is not included on the list, see 21 But “we focus on the elements of the crime when applying the categorical approach.” Grijalva Martinez v. Att’y Gen., 978 F.3d 860, 867 n.4 (3d Cir. 2020) (emphasis added); see id. (noting, for instance, that an affirmative defense in a criminal statute was “of no consequence” for the categorical approach). And whether viewed as an affirmative infancy defense or as creating a de facto age differential between the defendant and victim, New York’s age-based limitations on criminal responsibility are not elements of Islam’s offense—i.e., they are not facts that a jury must find “unanimously and beyond a reasonable doubt.”12 Descamps v. United States, 570 U.S. 254, NYPL § 10.00(18) (2008); meanwhile, NYPL § 30.00(1) stated, “Except as provided in subdivision two of this section, a person less than sixteen years old is not criminally responsible for conduct,” NYPL § 30.00 (2007), and subdivision two does not list § 130.60 either, id. The IJ cited NYPL § 30.00 in concluding that Islam’s “proposed minimum conduct” of “sexual acts involving a 14-year-old perpetrator and a 13-year-old victim” was “a legal impossibility,” and that the statute of conviction had to include an age gap. App. 36. We note, though, that the IJ misstated the age of criminal responsibility to be 17, not 16, when he noted, “As of the date of [Islam’s] conviction, persons under 17 years of age were not criminally responsible for violations of misdemeanors such as N.Y.P.L. 130.60(2).” App. 36 (emphasis added). 12 New York’s model jury instructions for NYPL § 130.60(2) also do not include age-based limitations on criminal responsibility, which further suggests that these limitations are 22 269 (2013); see also Stubbs v. Att’y Gen., 452 F.3d 251, 253- 54 (3d Cir. 2006) (noting that the categorical approach prohibits “consideration of evidence other than the statutory definition of the offense”). Second, we do not see sufficient support for interpreting the federal generic offense of sexual abuse of a minor to require a minimum age gap between the victim and perpetrator, let alone the four-year age gap derived from § 2243(a), for which Islam argues. The Supreme Court left the issue of whether the generic offense contains an age differential “for another day” in Esquivel-Quintana, 581 U.S. at 397, and we have not yet addressed it. But Esquivel-Quintana did provide us with “the analytical pattern” to do so, Cabeda, 971 F.3d at 173: We examine the text and structure of the INA, “related federal statute[s], and evidence from state criminal codes,” and other relevant sources, Esquivel-Quintana, 581 U.S. at 393. The text does not support imposing an age differential in the federal generic offense of sexual abuse of a minor. As the Supreme Court noted in Esquivel-Quintana, Congress did choose to “focus[] on age” in defining “sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43)(A). Id. at 391 (emphasis added). But that focus was on the victim’s age, not the perpetrator’s, which led the Court to conclude that “to qualify as sexual abuse of a minor, the statute of conviction must not elements of Islam’s offense. See NYPL Model Jury Instr. § 130.60(2) (2010). 23 prohibit certain sexual acts based at least in part on the age of the victim.” Id.; see also Garcia-Urbano v. Sessions, 890 F.3d 726, 730 (8th Cir. 2018) (noting that the ordinary meaning of “sexual abuse of a minor” when this term was added to the INA “included engaging in sexual contact with a person who is below a specified age”). “[L]egal and other well-accepted dictionaries” also do not define the phrase “sexual abuse of a minor” to “include . . . an age-differential requirement.” United States v. Rodriguez, 711 F.3d 541, 562 n.28 (5th Cir. 2013) (en banc), abrogated on other grounds by Esquivel- Quintana, 581 U.S. 385. A survey of state codes in effect in 1996, when the sexual abuse of a minor offense was added to the INA, also indicates that the federal generic offense does not contain an age differential. See Esquivel-Quintana, 581 U.S. at 396 n.3 (noting that a state-level multijurisdictional analysis, though not a necessary component of the categorical approach, can still “offer[] useful context”). As of 1996, New York was among 28 jurisdictions nationwide that required no age differential in at least some of their statutes dealing with sexual abuse involving minor victims.13 For statutes criminalizing 13 See Ariz. Rev. Stat. §§ 13-1404(A), 13-1410(A) (1993); Cal. Penal Code § 288(a) (1996); Conn. Gen. Stat. Ann. § 53a-73a (1996); Del. Code. Ann. tit. 11, § 768 (1996); Fla. Stat. § 800.04 (1996); Ga. Code Ann. § 16-6-4(a) (1996); Haw. Rev. Stat. Ann. § 707-732(1)(b) (1993); Kan. Stat. Ann. § 21-3503 (1996); Ky. Rev. Stat. Ann. §§ 510.110(1)(b)(2), 24 conduct where the victim is 14 or younger, like Islam’s statute of conviction, 15 out of 29 jurisdictions required no age gap on the plain text of their statutes.14 In Esquivel-Quintana, moreover, the Supreme Court declined to “import[]” § 2243 “wholesale” into the federal generic definition of sexual abuse of a minor, in part because § 2243 requires a minimum four-year age gap between the perpetrator and victim. Id. at 395 (citing 18 U.S.C. § 2243(a)). The Court noted that including this element in the aggravated 510.120(1)(b) (1996); Mass. Gen. Laws Ann. ch. 265, § 13B, ch. 272, § 35A (1996); Mo. Ann. Stat. §§ 566.067(1), 566.068(1) (1996); Nev. Rev. Stat. Ann. § 201.230(1) (1996); N.H. Rev. Stat. Ann. § 632-A:3 (1996); N.M. Stat. Ann. § 30- 9-13(A) (1996); NYPL §§ 130.60(2), 130.65(3) (1996); N.D. Cent. Code §§ 12.1-20-04(2), 12.1-20-03(2)(a) (1995); Ohio Rev. Code Ann. § 2907.05(A)(4) (1996); Or. Rev. Stat. § 163.415(1)(b) (1996); 18 Pa. Cons. Stat. § 3126(a)(7) (1996); 11 R.I. Gen. Laws § 11-37-8.3 (1996); S.C. Code Ann. § 16- 15-140 (1996); S.D. Codified Laws § 22-22-7 (1996); Tenn. Code Ann. § 39-13-504(a)(4) (1996); Utah Code Ann. § 76-5- 404.1(1) (1996); Vt. Stat. Ann. tit. 13, § 3252(a)(3) (1996); Va. Code Ann. § 18.2-67.3(A)(1) (1996); Wis. Stat. Ann. § 948.02(1), (2) (1995); Wyo. Stat. Ann. § 14-3-105 (1996). 14 In addition to New York, these jurisdictions included California, Hawaii, Kentucky, Massachusetts, Missouri, Nevada, New Hampshire, New Mexico, Ohio, Pennsylvania, Rhode Island, Tennessee, Utah, and Virginia. 25 felony of sexual abuse of a minor, over and above the requirement that the victim must be under 16, would exclude from the generic offense “the statutory rape laws of most States,” and reasoned that it therefore could not “rely on § 2243(a) . . . as providing the complete or exclusive definition” of the sexual abuse of a minor federal generic offense. Id.; cf. Taylor v. United States, 495 U.S. 575, 594 (1990) (refusing to interpret the burglary predicate offense under federal statute “to mean common-law burglary,” because that “would come close to nullifying that term’s effect in the statute,” given that “few of the crimes now generally recognized as burglaries would fall within the common-law definition”). We too share this common-sense concern about excluding large swaths of criminal statutes from the federal generic definition of sexual abuse of a minor. Our sister circuits share these concerns. The Fifth Cir