Section 2422(b) as a Categorical Match for INA Aggravated Felony Sexual Abuse of a Minor and Crime of Child Abuse

Introduction

This commentary examines the Fourth Circuit’s decision in Kevin Kou Chun Hsieh v. Pamela Jo Bondi (No. 24-1013), decided on June 4, 2025. The case arises from an order by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) holding that a conviction under 18 U.S.C. § 2422(b) for coercion or enticement of a minor categorically qualifies as both an aggravated felony of sexual abuse of a minor and a crime of child abuse under the Immigration and Nationality Act (INA). The appellant, Kevin Hsieh, a lawful permanent resident from India, challenged his removal on the ground that § 2422(b) is broader than the INA’s generic definitions and thus should not trigger mandatory removal.

Key issues:

Whether a conviction under § 2422(b) constitutes the generic INA offense of “sexual abuse of a minor” (an aggravated felony).
Whether the same conviction qualifies as a “crime of child abuse” under the INA.
Whether the Supreme Court’s decision in Esquivel-Quintana v. Sessions limits the removal grounds when the minor is over age 15.

Summary of the Judgment

The Fourth Circuit denied Hsieh’s petition for review, affirming that:

Sexual Abuse of a Minor: The court held that § 2422(b) categorically matches the INA’s definition of “sexual abuse of a minor” because it targets the sexual exploitation of a person under 18 with a mens rea tied to sexual gratification and proscribes non-physical or physical maltreatment.
Crime of Child Abuse: Applying Cruz v. Garland, the court found that § 2422(b) offenses involve a culpable mental state, create a reasonable probability of harm through solicitation, and focus on a child under 18, satisfying the INA’s generic crime of child abuse.
Narrow Scope of Esquivel-Quintana: The panel emphasized that the Supreme Court’s limitation in Esquivel-Quintana to strict-liability statutory rape does not apply to § 2422(b), which requires intentional persuasion for sexual purpose.

Analysis

Precedents Cited

Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017): Held that a strict-liability statutory rape statute covering a minor age 17 does not match the INA’s generic “sexual abuse of a minor,” which requires under-16 victims. Limited to statutory rape without mens rea.
Thompson v. Barr, 922 F.3d 528 (4th Cir. 2019): Clarified that Esquivel-Quintana is narrow, applying only to strict-liability age-based intercourse crimes and not to offenses with sexual-purpose mens rea.
United States v. Fugit, 703 F.3d 248 (4th Cir. 2012): Interpreted § 2422(b), noting its protection of minors from psychological sexualization and solicitation, and defined the sexual-purpose requirement.
United States v. Diaz-Ibarra, 522 F.3d 343 (4th Cir. 2008): Described “sexual abuse of a minor” as misuse of a minor for sexual gratification, including non-physical conduct.
Cruz v. Garland, 101 F.4th 361 (4th Cir. 2024): Defined the generic INA crime of child abuse with three elements: culpable mental state, harm or reasonable probability of harm, and a child victim.

Legal Reasoning

The court applied the categorical approach, asking whether the least culpable conduct criminalized by § 2422(b) necessarily falls within the INA’s generic offenses. It broke down the analysis as follows:

Aggravated Felony—Sexual Abuse of a Minor
- Elements of § 2422(b): use of interstate facility; knowingly persuading or coercing someone under 18 to engage in illegal sexual activity or attempting to do so.
- INA Definition: “Sexual abuse of a minor” requires (1) conduct directed at a minor, (2) a sexual-gratification mens rea, and (3) physical or non-physical maltreatment or attempt.
- Matching Analysis:
  - Target: § 2422(b) applies only to persons under 18.
  - Purpose: it criminalizes conduct aimed at libidinal gratification (Fugit).
  - Misuse/Maltreatment: solicitation and psychological sexualization satisfy the non-physical maltreatment requirement.
- Esquivel-Quintana Distinction: Because § 2422(b) has a mens rea and is not strict liability based solely on age, Esquivel-Quintana does not apply.
Crime of Child Abuse
- Cruz Elements: (1) culpable mental state; (2) harm or reasonable probability of harm; (3) victim is a child.
- Mens Rea: § 2422(b) requires knowingly persuading or coercing a minor—satisfies culpable intent.
- Harm or Probability: Solicitation itself is a recognized harm or creates a risk of harm to a minor’s psychological welfare.
- Child Victim: The statute applies to anyone under 18.

Impact

This decision reinforces a broad, purposive approach to removal eligibility, with several significant implications:

Uniform Application of Categorical Approach: Confirms that courts will not probe the facts of individual convictions but will compare statutory elements to INA generic definitions.
Limited Reach of Esquivel-Quintana: Clarifies that Esquivel-Quintana is confined to strict-liability statutory rape statutes and does not undermine convictions requiring a sexual-purpose mens rea.
Deterrence of Online Predation: For noncitizen defendants, prosecution under § 2422(b) will almost always lead to mandatory removal for “sexual abuse of a minor” and “child abuse.”
Guidance for Immigration Adjudicators: Immigration judges and the BIA can rely on this precedent to uphold removability in similar cases without detailed factfinding about each conviction.

Complex Concepts Simplified

Categorical Approach: A legal method that compares only the statutory elements of an offense, not the specific conduct of the defendant, to the INA’s generic definition of removable crimes.
Generic Offense: A broad, principle-based description of a crime (e.g., “sexual abuse of a minor”) as defined by federal immigration law, not tied to any specific jurisdiction’s statute.
Aggravated Felony: A category of serious crimes in the INA that triggers mandatory removal if committed by a noncitizen after admission.
Strict Liability vs. Mens Rea:
- Strict Liability: Crimes that do not require proof of intent (e.g., certain statutory rape statutes).
- Mens Rea: A required mental state (e.g., knowing persuasion under § 2422(b)) showing deliberate intent.
Attempt Offense: An inchoate crime where the defendant has the intent and takes substantial steps toward committing the underlying offense, which under the INA can match the completed offense for removal purposes.

Conclusion

The Fourth Circuit’s decision in Hsieh v. Bondi solidifies the understanding that federal coercion statutes protecting minors from sexual solicitation are categorical matches for the INA’s aggravated felony of sexual abuse of a minor and crime of child abuse. By reaffirming the limited scope of Esquivel-Quintana, applying the categorical approach, and adopting clear definitions from prior precedents, the court delivers authoritative guidance for immigration and criminal practitioners. This ruling underscores Congress’s intent to safeguard minors through robust removal provisions and ensures uniformity in deportation proceedings involving sexual offenses against children.