Indiana Sexual Battery “By Force or Imminent Threat of Force” Is a CIMT and May Be Treated as a Particularly Serious Crime

Case: Kudzai Shonhai v. Attorney General United States of America (3d Cir. Aug. 24, 2026) (nonprecedential)
Posture: Petition for review of BIA decisions affirming removability, denying asylum/withholding/CAT, and affirming discretionary denial of adjustment/waiver.

1. Introduction

Petitioner Kudzai Shonhai, a Zimbabwean national admitted to the United States in August 2006 as a derivative asylee, faced removal after multiple criminal convictions. The Department of Homeland Security charged removability under:

• 8 U.S.C. § 1227(a)(2)(A)(i): conviction of a crime involving moral turpitude (“CIMT”) within five years of admission, where a sentence of one year or longer may be imposed; and
• 8 U.S.C. § 1227(a)(2)(A)(ii): two CIMTs not arising out of a single scheme.

The key predicate conviction for the primary removability ground was Shonhai’s 2011 Indiana sexual battery conviction under Indiana Code § 35-42-4-8, for which he received a 1,095-day sentence. After the Immigration Judge sustained removability and denied protection-based relief (asylum, withholding, and CAT), the case returned on remand for adjustment-of-status proceedings, where the agency also treated the sexual battery conviction as a particularly serious crime (“PSC”), terminated derivative asylee status, and again ordered removal.

The Third Circuit addressed four clusters of issues: (1) whether the Indiana sexual battery offense is a CIMT; (2) whether it is a PSC barring asylum and withholding and supporting termination of derivative asylee status; (3) whether CAT protection was wrongly denied; and (4) whether the court could review the discretionary denial of adjustment of status and a section 209(c) waiver.

2. Summary of the Opinion

The court denied the petition as to removability, the PSC determination, and CAT, and dismissed the petition as to adjustment/waiver for lack of jurisdiction.

• CIMT: Indiana sexual battery under § 35-42-4-8(a)(1) (intentional sexual touching for sexual gratification “by force or the imminent threat of force”) is categorically a CIMT.
• PSC: The conviction is a particularly serious crime after applying the Third Circuit’s two-step PSC framework and considering the underlying facts (including the victim’s age and intoxication).
• CAT: Substantial evidence supported the agency’s finding that Shonhai did not show it was more likely than not he would be tortured in Zimbabwe with government consent or acquiescence.
• Adjustment/waiver: Challenges to the agency’s discretionary balancing under section 209(b) adjustment and 209(c) waiver are not reviewable.

3. Analysis

A. Precedents Cited

1) Jurisdiction and reviewability framework

• Laureano v. Att'y Gen., 177 F.4th 453 (3d Cir. 2026)
  The court cited Laureano to situate its jurisdiction under 8 U.S.C. § 1252(a)(1) to review final orders of removal and denials of asylum, withholding, and CAT protection. This anchored the court’s authority to address the CIMT, PSC, and CAT issues.
• Cortez-Amador v. Att'y Gen., 66 F.4th 429 (3d Cir. 2023)
  This decision supplied the jurisdictional bar principle: discretionary determinations—like the balancing of equities for adjustment or a waiver—generally fall outside the court’s review under 8 U.S.C. §§ 1252(a)(2)(B)(ii), with limited review preserved for “questions of law” under § 1252(a)(2)(D). The panel used Cortez-Amador to dismiss the adjustment/waiver challenge as an unreviewable disagreement with discretionary weighing.

2) CIMT methodology: categorical and modified categorical approach

• Ildefonso-Candelario v. Att'y Gen., 866 F.3d 102 (3d Cir. 2017) and Aquino v. Att'y Gen., 53 F.4th 761 (3d Cir. 2022)
  These cases were cited for the proposition that whether an offense is a CIMT is a question of law reviewed de novo. They also reflect the Third Circuit’s settled practice of analyzing CIMTs through structured elements-based reasoning.
• Mathis v. United States, 579 U.S. 500 (2016)
  Mathis supplied the definitional backbone for identifying a “divisible” statute and for applying the modified categorical approach. The panel treated Indiana Code § 35-42-4-8 as divisible because it has alternative elements (force/threat vs. mental disability/deficiency preventing consent).
• Ndungu v. Att'y Gen., 126 F.4th 150 (3d Cir. 2025)
  The panel relied on Ndungu for two key points: (i) the Third Circuit’s two-element CIMT standard (actus reus + mens rea) framed as “reprehensible conduct and a culpable mental state,” and (ii) the mechanics of returning to the categorical approach after using the modified categorical approach to identify the particular statutory alternative of conviction.
• Larios v. Att'y Gen., 978 F.3d 62 (3d Cir. 2020) and Javier v. Att'y Gen., 826 F.3d 127 (3d Cir. 2016)
  These decisions provided the court’s working definitions of “reprehensible” conduct and the “vicious motive or corrupt mind” concept that distinguishes turpitudinous wrongdoing from merely unlawful conduct.
• Partyka v. Att'y Gen., 417 F.3d 408 (3d Cir. 2005)
  The court invoked Partyka for the synthesizing “hallmark” statement: moral turpitude typically involves a reprehensible act committed with an appreciable level of consciousness or deliberation—language the panel used to validate its emphasis on intentional, coercive sexual touching.

3) Particularly serious crime (PSC) framework

• Luziga v. Att'y Gen., 937 F.3d 244 (3d Cir. 2019)
  Cited for the standard of review the panel applied to PSC determinations (de novo, as the opinion states). This empowered the court to independently assess the PSC analysis while still looking to the agency’s factfinding in the “all reliable information” step.
• Amos v. Att'y Gen., 157 F.4th 313 (3d Cir. 2025)
  Amos supplied the two-step PSC inquiry adopted by the panel: (1) evaluate whether the statutory elements potentially place the offense within the PSC ambit; and (2) if so, consider “all reliable information,” including the nature of the conviction, sentence imposed, and the underlying facts and circumstances.
• In re N-A-M, 24 I. & N. Dec. 336 (BIA 2007) and In re Frentescu, 18 I. & N. Dec. 244 (BIA 1982)
  These BIA decisions were integrated through Amos as doctrinal sources for the PSC framework and the “Frentescu factors” style of analysis (nature, sentence, circumstances). The panel’s reasoning tracked these factors by focusing on coercion, bodily integrity harms, victim vulnerability, and sentence.
• Sunuwar v. Att'y Gen., 989 F.3d 239 (3d Cir. 2021)
  The panel cited Sunuwar for the functional consequence of a PSC: it disqualifies a noncitizen from most relief, leaving CAT deferral as the remaining potential protection. This framed why the PSC conclusion largely foreclosed asylum and withholding and made CAT the remaining merits issue.

4) CAT standards: definition, acquiescence, and substantial evidence review

• Lopez v. Att'y Gen., 142 F.4th 162 (3d Cir. 2025)
  Used for the core burden: an applicant must show it is “more likely than not” that they would be tortured if removed, tracking 8 C.F.R. § 1208.16(c)(2).
• Myrie v. Att'y Gen., 855 F.3d 509 (3d Cir. 2017) and Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005)
  Provided the multi-element definition of torture (severe pain or suffering, intentional, illicit purpose, official involvement/acquiescence, and not lawful sanctions) and the “willful blindness” formulation of acquiescence.
• Nasrallah v. Barr, 590 U.S. 573 (2020)
  The panel cited Nasrallah for the substantial evidence standard in reviewing CAT-related factual findings: the court must uphold the agency unless the record would compel a contrary conclusion, echoing 8 U.S.C. § 1252(b)(4)(B).
• Galeas Figueroa v. Att'y Gen., 998 F.3d 77 (3d Cir. 2021) and Espinosa-Cortez v. Att'y Gen., 607 F.3d 101 (3d Cir. 2010)
  These cases reinforced the deferential nature of substantial evidence review and the requirement that the evidence compel reversal, not merely support an alternative view.

5) Other cited authority

• Robleto-Pastora v. Holder, 591 F.3d 1051 (9th Cir. 2010)
  Cited in a footnote as a referential description of a “section 209(c)” waiver. While not doctrinally central, it reflects the standardized understanding of 209(c) waiver nomenclature in adjustment contexts.

B. Legal Reasoning

1) CIMT: coercive sexual touching as categorically turpitudinous

The court’s CIMT analysis proceeds in a tightly structured sequence.

• Step 1 — Statutory divisibility: Indiana Code § 35-42-4-8 contains alternative elements (subsection (a)(1) force/threat; subsection (a)(2) mental disability/deficiency preventing consent). Treating the statute as divisible (per Mathis v. United States) permitted the court to isolate the precise alternative of conviction.
• Step 2 — Modified categorical approach (limited role): The modified categorical approach was used only to identify that Shonhai was convicted under § 35-42-4-8(a)(1).
• Step 3 — Categorical CIMT determination: Returning to the categorical approach (as instructed by Ndungu v. Att'y Gen.), the court applied the Third Circuit’s two-part moral turpitude standard: “reprehensible conduct and a culpable mental state.” The panel reasoned that:
  • sexual touching for sexual gratification is not inherently reprehensible standing alone; but
  • sexual touching accomplished “by force or the imminent threat of force” is coercive and violates bodily integrity; and
  • the statute requires intentional conduct aimed at sexual gratification (culpable mental state) coupled with coercion (reprehensible act).

On that basis, the panel held the offense “therefore categorically constitutes a CIMT,” sustaining removability under 8 U.S.C. § 1227(a)(2)(A)(i). Having found one removability ground satisfied, it declined to reach the alternative two-CIMT ground under § 1227(a)(2)(A)(ii).

2) PSC: two-step inquiry applied to sexual battery, with facts doing decisive work

Using the two-step PSC framework from Amos v. Att'y Gen. (quoting In re N-A-M and drawing from In re Frentescu), the court concluded:

• Step 1 — Elements potentially within PSC ambit: The elements of intentional sexual touching by force or threat potentially qualify as particularly serious because they inherently implicate physical autonomy, safety, and the risk of violence.
• Step 2 — “All reliable information” confirms particular seriousness: The panel emphasized aggravating circumstances reflected in the record: Shonhai was 23; the victim was 15; the victim was “completely inebriated”; and the conduct included sucking on her breast and leaving a bruise. Those circumstances supported the agency’s conclusion that the offense, as committed, was particularly serious.

The PSC determination triggered two statutory consequences the panel expressly affirmed:

• Asylum bar: 8 U.S.C. § 1158(b)(2)(A)(ii).
• Withholding bar: 8 U.S.C. § 1231(b)(3)(B)(ii).

It also supported termination of derivative asylee status under 8 U.S.C. § 1158(c)(2)(B), which allows termination when a statutory bar applies.

3) CAT: failure to compel a finding of likely torture with official acquiescence

The court reiterated that CAT relief requires proof it is more likely than not the applicant would be tortured, and that torture must involve official instigation, consent, or acquiescence (including willful blindness) as defined in Myrie v. Att'y Gen. (quoting Auguste v. Ridge).

Applying substantial evidence review under Nasrallah v. Barr, the panel held Shonhai identified no record evidence compelling the conclusion that Zimbabwean officials would consent to or acquiesce in his torture. The CAT claim therefore failed on the merits.

4) Adjustment and 209(c) waiver: unreviewable discretionary balancing

The IJ had weighed humanitarian purposes, family unity, and public interest considerations against adverse factors—especially criminal history—when denying adjustment and the section 209(c) waiver. Shonhai’s petition challenged that balancing. Under Cortez-Amador v. Att'y Gen. and 8 U.S.C. §§ 1252(a)(2)(B)(ii), (D), the panel treated the argument as a non-legal dispute over discretion and dismissed it for lack of jurisdiction.

C. Impact

Although nonprecedential, the opinion is practically significant for several recurring immigration adjudication issues in the Third Circuit:

• Sexual offenses and CIMT classification: The decision underscores that sexual misconduct statutes combining (i) intentional sexual touching for gratification and (ii) force or threat are strong candidates for categorical CIMT treatment, because coercion supplies the “reprehensible” component while the intent supplies the “culpable mental state.”
• PSC exposure beyond enumerated aggravated felonies: By applying the two-step PSC framework and relying heavily on “all reliable information,” the opinion demonstrates how PSC findings can hinge on victim vulnerability and aggravating facts even where the legal elements already signal violence or coercion.
• Derivative asylees and termination risk: The linkage between a PSC finding and termination of derivative asylee status highlights the fragility of derivative protection in the face of serious criminal conduct.
• CAT as the “last stop” and the acquiescence hurdle: The opinion reiterates that CAT claims often rise or fall on proof of official involvement/acquiescence, and that appellate courts will not reweigh evidence under substantial evidence review.
• Jurisdictional limits in discretionary relief: The dismissal portion reinforces that petitioners must frame adjustment/waiver challenges as genuine questions of law to obtain review; disagreements with the agency’s weighing are typically barred.

4. Complex Concepts Simplified

• Crime Involving Moral Turpitude (CIMT): A judge-made immigration category for offenses involving (1) seriously wrongful conduct (“base, vile, or depraved”) and (2) a blameworthy mental state (intent, knowledge, or deliberation rather than accident or negligence). In this case, “force or threat of force” supplied the wrongfulness; intent for sexual gratification supplied the mental state.
• Categorical vs. Modified Categorical Approach: The categorical approach asks what the statute of conviction necessarily requires—not what the person actually did. If a statute lists distinct crimes (a “divisible” statute), the modified categorical approach lets a court look at a limited set of documents to identify which statutory alternative was the conviction, and then apply the categorical approach to that alternative.
• Divisible Statute: A statute is “divisible” when it sets out alternative elements (different crimes) rather than alternative means (different ways to commit one crime). Here, Indiana’s sexual battery statute has distinct element-sets (force/threat vs. inability to consent due to mental disability/deficiency).
• Particularly Serious Crime (PSC): A designation that bars asylum and withholding. The inquiry looks first at whether the elements could qualify, then at “all reliable information” about how the crime was committed, including the sentence and underlying facts.
• CAT Protection and “Acquiescence”: CAT requires showing likely torture in the destination country and that government officials would be involved or would knowingly turn a blind eye (willful blindness). General danger is not enough without the official-connection element.
• Substantial Evidence Review: A highly deferential appellate standard for factual findings: the court affirms unless the record compels the opposite result.
• Discretionary Relief and Judicial Review Limits: Some immigration benefits (like certain adjustments/waivers) are discretionary. Courts usually cannot review how the agency balanced positives and negatives unless the challenge raises a true legal or constitutional error.

5. Conclusion

The Third Circuit’s decision in Kudzai Shonhai v. Attorney General United States of America affirms a set of interlocking determinations with major consequences for removable noncitizens with coercive sexual offense convictions: (1) Indiana sexual battery “by force or imminent threat of force” qualifies categorically as a CIMT; (2) the offense, particularly when coupled with aggravating facts showing victim vulnerability, can be treated as a particularly serious crime, barring asylum and withholding and supporting termination of derivative asylee status; (3) CAT remains theoretically available but fails absent compelling evidence of likely torture with official acquiescence; and (4) federal courts generally lack jurisdiction to revisit the agency’s discretionary balancing in denying adjustment of status and a section 209(c) waiver.