Cabeda v. Attorney General United States, No. 19-1835 (3d Cir. 2020)
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Argentine citizen Cabeda, a lawful U.S. permanent resident, was convicted in Pennsylvania state court of having involuntary deviate sexual intercourse at age 34 with a 15-year-old boy. Immigration authorities found her removable for having committed 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.”
The Third Circuit granted her petition for review. Notwithstanding her actual, admitted sexual abuse of a minor, she cannot be removed 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. The categorical approach mandates ignoring what she actually did and focusing instead on what someone else, in a hypothetical world, could have done. The court called this “a surpassingly strange result but required by controlling law.”
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