Third Circuit Treats 18 U.S.C. § 2422(b) (Online Enticement/Attempt) as Categorical “Sexual Abuse of a Minor” Aggravated Felony—No Actual Minor Required

1) Introduction

In Dameon Allen v. Attorney General United States of America (3d Cir. Aug. 6, 2026) (non-precedential), the Third Circuit denied a lawful permanent resident’s petition for review after the Board of Immigration Appeals (BIA) affirmed an Immigration Judge’s (IJ’s) removal order.

Background. Allen, an LPR since 2009, was convicted in 2020 of attempting to induce a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b). DHS charged him as removable for (1) an aggravated felony—attempt to commit “sexual abuse of a minor” under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(A), (U)—and (2) a “crime of child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i).

Key issues. Allen argued: (i) the BIA should have accepted his untimely pro se brief under a prison mailbox rule; (ii) Philadelphia lacked jurisdiction/authority after the venue change and Fourth Circuit law should apply; (iii) the IJ violated due process by not conducting a competency inquiry under Matter of M-A-M-; and (iv) § 2422(b) is not categorically “sexual abuse of a minor” because it can be committed through communications (including with an undercover officer) without an actual child victim.

2) Summary of the Opinion

  • Untimely brief: The BIA does not apply the prison mailbox rule and had discretion not to consider an untimely brief; no due process prejudice was shown.
  • Jurisdiction vs. venue: Any alleged venue error did not negate authority to act; Allen showed no prejudice from Third Circuit law applying.
  • Competency: No indicia of incompetency triggered a duty to impose safeguards under Matter of M-A-M-.
  • Removability (aggravated felony): A conviction under 18 U.S.C. § 2422(b) is categorically within the generic definition of “sexual abuse of a minor,” and attempt/impossibility arguments fail; thus Allen is removable as an aggravated felon.
  • Child-abuse ground: Not reached because the aggravated-felony ground sufficed.

3) Analysis

A. Precedents Cited

1. Jurisdiction and standard of review

  • Papageorgiou v. Gonzales, 413 F.3d 356 (3d Cir. 2005): The court reiterated that even where aggravated-felony removability limits review, the court retains jurisdiction over constitutional claims and questions of law.
  • De Leon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002): Legal and constitutional questions are reviewed de novo.

2. Due process and prejudice

  • Delgado-Sobalvarro v. Att'y Gen., 625 F.3d 782 (3d Cir. 2010): The panel applied the prejudice requirement for immigration due process claims: even if there is procedural error, the petitioner must show it mattered to the outcome.

3. Venue is not jurisdiction

  • Castillo v. Att'y Gen., 109 F.4th 127 (3d Cir. 2024): Cited for the distinction between jurisdiction and venue—an adjudicator/court may have authority to act even if venue is disputed.

4. Competency framework in immigration proceedings

  • Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011): Establishes a presumption of competency and requires safeguards only when indicia of incompetency appear.
  • Hernandez Garmendia v. Att'y Gen., 28 F.4th 476 (3d Cir. 2022): Adopted/endorsed the trigger rule: absent indicia, no duty to conduct a competency evaluation or impose safeguards.

5. Categorical approach and “sexual abuse of a minor” definition

  • Restrepo v. Att'y Gen., 617 F.3d 787 (3d Cir. 2010): Provided the two-step categorical approach: define the generic offense then compare it to the statute of conviction; also discussed components of “sexually explicit conduct” and “sexual contact” used in the analysis.
  • Cabeda v. Att'y Gen., 971 F.3d 165 (3d Cir. 2020): Reaffirmed that, in the Third Circuit, 18 U.S.C. § 3509(a)(8) guides the generic definition of “sexual abuse of a minor” and that the offense must be committed at least knowingly.
  • In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999): Cited to emphasize “sexual abuse” is broadly understood and not limited to physical contact.
  • Matter of V-F-D-, 23 I. & N. Dec. 859 (BIA 2006): Cited for the proposition that “minor” means under 18 for INA § 101(a)(43)(A).
  • Esquival-Quintana v. Sessions, 581 U.S. 385 (2 017): The panel (via Cabeda) treated it as limited to statutory-rape contexts and not controlling the broader generic definition used here.

6. Undercover officer / impossibility / attempt arguments

  • Hsieh v. Bondi, 139 F.4th 337 (4th Cir. 2025), cert. denied, 224 L. Ed. 2d 19 (Feb. 23, 2026): Used twice—first to show no prejudice from applying Third Circuit law (Fourth Circuit would reach the same result), and second for the proposition that the generic offense does not require an actual minor victim; attempt/nonphysical maltreatment suffices.
  • Shroff v. Sessions, 890 F.3d 542 (5th Cir. 2018): Cited to reject the “no real minor” argument where the purported victim was an officer posing as a minor; treated as attempt to commit sexual abuse of a minor.
  • Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005): Cited for the principle that impossibility is not a defense to attempt, including in the immigration context.

7. Not reaching alternative removal grounds

  • Lopez v. Att'y Gen., 914 F.3d 1292 (11th Cir. 2019): Cited for the practice that one valid ground of removability suffices to deny a petition without reaching other grounds.

8. Waiver/forfeiture on reply

  • Kars 4 Kids Inc. v. Am. Can!, 98 F.4th 436 (3d Cir. 2024): Cited to note new arguments raised in a reply brief are not properly before the court.

B. Legal Reasoning

1. Late briefing and the prison mailbox rule

Allen’s “mailbox rule” theory failed for two independent reasons: (i) the BIA Practice Manual states filings are deemed filed only upon receipt, and (ii) even if late, the BIA has discretion whether to accept an untimely brief under 8 C.F.R. § 1003.3(c)(1). On due process, the court relied on Delgado-Sobalvarro v. Att'y Gen. to hold that Allen showed no prejudice because the BIA considered his arguments from other filings (Notice of Appeal, Motion to Remand, Motion to Terminate).

2. Venue, “jurisdiction,” and choice-of-law prejudice

The court treated Allen’s “Philadelphia lacked jurisdiction” framing as a category error: authority to decide is distinct from where the case should be heard. Citing Castillo v. Att'y Gen., the panel concluded the IJ had power to act. Even assuming a venue irregularity, Allen failed to show prejudice because, under Hsieh v. Bondi, Fourth Circuit law would also treat § 2422(b) as “sexual abuse of a minor.”

3. Competency safeguards

Applying Hernandez Garmendia v. Att'y Gen. and Matter of M-A-M-, the panel emphasized the presumption of competency and the “indicia” trigger. It agreed with the BIA that the transcript showed Allen understood the proceeding and could represent himself, and he denied mental health issues; thus no duty to evaluate competency or add safeguards arose.

4. Categorical match: § 2422(b) as “sexual abuse of a minor” aggravated felony

The decisive holding is the categorical analysis. Under Restrepo v. Att'y Gen., the court: (1) defined the generic offense using Third Circuit guidance in Cabeda v. Att'y Gen.—looking to 18 U.S.C. § 3509(a)(8)—and (2) compared that generic definition to the elements of 18 U.S.C. § 2422(b).

The panel found the match because § 2422(b) necessarily involves “persuasion, inducement, enticement, or coercion” of a person under 18 to engage in unlawful sexual activity, which fits § 3509(a)(8)’s breadth and In re Rodriguez-Rodriguez’s “broad range of maltreatment” conception. It also found mens rea alignment (at least knowing) and age alignment (under 18, per Matter of V-F-D-).

Allen’s principal overbreadth arguments failed:

  • No actual minor required: The court relied on Hsieh v. Bondi, Shroff v. Sessions, and Hernandez-Alvarez v. Gonzales to reject the idea that the generic aggravated felony requires an actual child victim; attempt liability and impossibility principles defeat the undercover-officer scenario.
  • “Communications alone”: Citing In re Rodriguez-Rodriguez, the court reiterated the generic offense is not limited to physical contact.

Finally, the panel noted that—independent of any debate about whether “sexual abuse of a minor” inherently includes attempts—the INA separately enumerates attempt offenses in 8 U.S.C. § 1101(a)(43)(U), and Allen was charged under that provision as well.

Note on a textual inconsistency: The opinion briefly references “§ 2244(b)” while discussing Allen’s arguments, though the conviction at issue is 18 U.S.C. § 2422(b). The analysis, however, consistently tracks § 2422(b)’s enticement/attempt elements, suggesting a typographical slip rather than a doctrinal distinction.

C. Impact

Although expressly “NOT PRECEDENTIAL,” the decision reinforces several practical rules likely to shape litigants’ expectations in Third Circuit immigration cases:

  • § 2422(b) removability is hard to avoid: The court squarely treats § 2422(b) enticement/attempt as categorically within “sexual abuse of a minor,” limiting room for overbreadth arguments based on undercover stings or lack of physical contact.
  • Attempt coverage is doubly secured: Even if a litigant tries to narrow “sexual abuse of a minor,” the INA’s explicit “attempt” aggravated felony provision, § 1101(a)(43)(U), provides an independent pathway.
  • Procedural challenges require prejudice: Venue complaints, late-briefing disputes, and alleged due process missteps will fail absent a concrete showing that the outcome would change.
  • Competency claims need record indicia: General assertions of confusion are unlikely to trigger Matter of M-A-M- safeguards without transcript-based indicators or documented mental health concerns.

4) Complex Concepts Simplified

  • Aggravated felony (immigration): A term of art in the INA; if a conviction fits an “aggravated felony” category, it can make a noncitizen removable and sharply restrict relief and judicial review.
  • Categorical approach: A method that compares the statutory elements of the conviction to a generic federal definition—courts do not re-try the facts. If the statute of conviction always (categorically) involves conduct within the generic definition, it matches.
  • Generic “sexual abuse of a minor” in this circuit: The Third Circuit uses 18 U.S.C. § 3509(a)(8) as a guide, treating the concept broadly to include enticement/inducement and not requiring physical contact.
  • Attempt and “impossibility”: Attempt liability can exist even when completion is impossible (e.g., the “minor” is an undercover officer), so long as the defendant intended the crime and took substantial steps.
  • Venue vs. jurisdiction: Venue concerns the proper location; jurisdiction is the power to decide. A venue dispute does not automatically void a tribunal’s authority.
  • Competency safeguards (Matter of M-A-M-): Immigration respondents are presumed competent. The IJ must consider safeguards only when there are observable signs suggesting incompetency.
  • Prison mailbox rule: Some courts deem a filing made when a prisoner hands it to prison mail staff. The BIA, per its Practice Manual, generally deems filings “filed” upon receipt.

5) Conclusion

The Third Circuit’s decision affirms (1) a strict prejudice requirement for procedural and due process challenges in removal proceedings, (2) the limited circumstances that trigger competency safeguards under Matter of M-A-M-, and most importantly (3) that 18 U.S.C. § 2422(b)—including attempt and undercover-sting variants—categorically qualifies as “sexual abuse of a minor” for aggravated-felony removability under 8 U.S.C. § 1101(a)(43)(A) and (U). Even as a nonprecedential disposition, it consolidates the Third Circuit’s broad, § 3509-guided conception of “sexual abuse of a minor” and signals that “no actual minor” and “communications-only” defenses are unlikely to defeat removability on this ground.