Pah Peh v. Garland, No. 20-1508 (8th Cir. 2021)
Annotate this CaseThe Eighth Circuit granted a petition for review of the BIA's order determining that petitioner was removable because his prior conviction for enticing a minor under Iowa law was a "crime of child abuse." Applying the categorical approach, the court concluded that the Board's decision cannot be upheld on the rationale advanced by the government because it conflates two separate elements in the Iowa statute. Looking only at the plain text of the Iowa statute, the court cannot exclude the possibility that an offender could be prosecuted for enticing a minor with intent to commit disorderly conduct or harassment upon a minor. Furthermore, the Board's decision is not clear about how it understood the "realistic probability" requirement. Accordingly, the court vacated the Board's decision and remanded for further proceedings.
Court Description: [Colloton, Author, with Wollman and Shepherd, Circuit Judges] Petition for Review - Immigration. The agency concluded that petitioner was removable because his prior conviction for enticing a minor in violation of Iowa Code 710.10(3) was a crime of child abuse; the crime of enticement as defined in Iowa law is not a match for federal law because the court cannot exclude the possibility that an Iowa offender could be prosecuted for enticing a minor with intent to comment disorderly conduct or harassment against a minor; while there must be a "realistic probability" that Iowa would apply the statute to conduct that falls outside the generic definition of a crime, it is not clear how the agency understood the reasonable probability requirement, and the case is remanded to permit the agency to clarify its reasoning.
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