Petition for Review of an order of the Board of Immigration Appeals. No. A46-634-722.
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: BARRY, and AMBRO, Circuit Judges, POLLAK*fn1, District Judge.
Jerome Stubbs, a Jamaican national, petitions for review of a final order of removal based on the determination of the Board of Immigration Appeals ("BIA" or "Board") that he committed an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (stating that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable") and 8 U.S.C. § 1101(a)(43)(A) (stating that "'aggravated felony' means . . . sexual abuse of a minor"). For the reasons set out below, we conclude that Stubbs' conviction for "endangering welfare of children" under N.J. Stat. Ann. § 2C:24-4(a) is not "sexual abuse of a minor." We therefore grant the petition for review, vacate the order of removal, and remand to the BIA for further proceedings consistent with this opinion.
Jerome Stubbs was born in Jamaica in 1980 and was admitted to the United States as a lawful permanent resident in 1998. In 2002, Stubbs pled guilty to one count of third-degree "endangering welfare of children" in violation of N.J. Stat. Ann. § 2C:24-4(a) and was sentenced to two years probation.*fn2
The offense of conviction provides that
[a]ny person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in [the New Jersey protective-welfare statutes,] is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.
N.J. Stat. Ann. § 2C:24-4(a).*fn3
Two years after his conviction, United States Immigration and Customs Enforcement served Stubbs with a notice to appear, charging him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(A) for having been convicted of the aggravated felony of sexual abuse of a minor.*fn4 Stubbs appeared before an Immigration Judge ("IJ") and admitted the factual allegations in the notice to appear, but denied removability. On June 16, 2004, the IJ found Stubbs removable as an aggravated felon. The IJ considered the statute of conviction and the charging instrument and determined that Stubbs' offense came within the definition of "sexual abuse of a minor" articulated by the BIA in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (B.I.A. 1999), thus making the offense an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).
Stubbs appealed the IJ's order of removal to the BIA and it affirmed. It considered Stubbs' record of conviction, specifically the charging instrument, and held that "[i]nasmuch as [Stubbs] engaged in sexual conduct with a child under the age of 18, [his] criminal activity clearly falls within [the] definition of sexual abuse of a minor ...