PRECEDENTIAL

FOR THE UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                 No. 13-1944
                _____________

      GEORGE ACUPANDA CADAPAN,

                                           Petitioner

                       v.

ATTORNEY GENERAL OF THE UNITED STATES,

                                           Respondent



    On Petition for Review of an Order of the
          Board of Immigration Appeals
          (Agency No.: A077-045-577)
 Immigration Judge: Honorable Walter A. Durling


    Submitted under Third Circuit LAR 34.1(a)
                 March 3, 2014

         (Opinion filed: March 20, 2014)
   Before: RENDELL, SMITH and HARDIMAN, Circuit
                      Judges




Valerie A. Burch, Esquire
The Shagin Law Group
The Inns of St. Jude
120 South Street
Harrisburg, PA 17101

                    Counsel for Petitioner



Christina J. Martin, Esquire
Carmel A. Morgan, Esquire
United States Department of Justice
Office of Immigration Litigation, Civil Division
P. O. Box 878
Ben Franklin Station
Washington, DC 20044

                    Counsel for Respondent




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                        OPINION



RENDELL, Circuit Judge:

       Petitioner George Acupanda Cadapan, a native and
citizen of the Philippines and a lawful permanent resident of
the United States, petitions for review of the decision by the
Board of Immigration Appeals (“BIA”) finding him
removable for having been convicted of an “aggravated
felony” pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8
U.S.C. § 1101(a)(43)(A). He argues that his conviction under
the Pennsylvania indecent assault statute, 18 Pa. Cons. Stat. §
3126(a)(7), does not qualify as an aggravated felony under
the Immigration and Nationality Act (“INA”). For the reasons
that follow, we disagree. Cadapan also contends that he was
never admitted to the United States and that therefore he is
not removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which
applies to “an alien who is convicted of an aggravated felony
at any time after admission.” Cadapan, however, never raised
this argument before the BIA. Because he failed to exhaust
his administrative remedies, we lack jurisdiction over this
claim. We will deny Cadapan’s petition.

                              I.


       On August 31, 2011, following a jury trial in the Court
of Common Pleas of Cumberland County, Pennsylvania,
Cadapan was convicted of three offenses: (1) indecent assault
with a person less than 13 years of age, in violation of 18 Pa.
Cons. Stat. § 3126(a)(7); (2) indecent assault without consent,
in violation of 18 Pa. Cons. Stat. § 3126(a)(1); and (3)




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corruption of minors, in violation of 18 Pa. Cons. Stat. §
6301(a)(1). On November 29, 2011, Cadapan was sentenced
to a term of imprisonment not less than 6 months nor more
than 23 months; a term of imprisonment of not less than 3
months nor more than 23 months, to run concurrently; and
supervised probation for 36 months, respectively. On April
11, 2012, Cadapan was granted parole by the Court of
Common Pleas. He was transferred to the custody of the
Department of Homeland Security (“DHS”) the next day.


        DHS charged Cadapan with removability pursuant to 8
U.S.C. § 1227(a)(2)(A)(iii), as an alien who, after admission,
was convicted of an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(A) – specifically, sexual abuse of a minor.
DHS also charged Cadapan with removability under 8 U.S.C.
§ 1227(a)(2)(E)(i), as an alien convicted of a crime of child
abuse based on his conviction for the corruption of minors
under Pennsylvania law. Cadapan conceded removability on
the latter charge but denied the aggravated felony charge.1 He
argued that the Pennsylvania statute for indecent assault
encompassed conduct that could not be considered sexual
abuse of a minor under the federal statute. In an oral decision,
the Immigration Judge (“IJ”) rejected this argument and
concluded that Cadapan was removable on both grounds. The
BIA subsequently dismissed Cadapan’s appeal.

1
  As noted by the BIA, even though Cadapan conceded his
removability based on his conviction for a crime of child
abuse, the aggravated felony issue remained relevant because
of its impact on his eligibility for relief from removal and his
ability to re-immigrate to the United States after removal.
(See App. 3.)




                               4
                              II.


       We have jurisdiction over only one of the two claims
Cadapan raises on appeal because the other is unexhausted.2
See 8 U.S.C. § 1252(d)(1) (stating that a court may review a
final order of removal only if “the alien has exhausted all
administrative remedies”). For the first time, Cadapan argues
that the BIA erred in ordering him removed as an alien who
had been admitted to the United States, see 8 U.S.C.
§ 1227(a)(2)(A)(iii), because he was never admitted to the
United States.3 He concedes that he never raised this
particular issue before the IJ or BIA. We have held that “[t]he
exhaustion requirement attaches to each particular issue
raised by the petitioner.” Castro v. Att’y Gen., 

,
365 (3d Cir. 2012). Therefore, Cadapan’s argument regarding
whether or not he was ever “admitted” to the United States is
unexhausted and we lack jurisdiction to consider it.

        Cadapan’s second argument, however, is properly
before this Court. The INA defines an aggravated felony as,
inter alia, a conviction for “murder, rape, or sexual abuse of a
minor.” 8 U.S.C. § 1101(a)(43)(A). Cadapan argues that
conduct that meets the federal definition of sexual abuse of a
minor is not necessary for a conviction under the
Pennsylvania statute for indecent assault. He therefore argues

2
  We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D).
3
  Cadapan claims that he only entered the United States once
as a crewman traveling with a C1 visa. He states that even
though he later adjusted to lawful permanent resident status,
he was never “admitted” to this country.




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that he did not commit an aggravated felony. For the
following reasons we disagree.

       Because the BIA issued its own opinion, we review its
decision rather than that of the IJ. See Li v. Att’y Gen., 

, 162 (3d Cir. 2005). We review the decision of the
IJ, however, to the extent that the BIA deferred to or adopted
the IJ’s reasoning. See Chavarria v. Gonzalez, 

,
515 (3d Cir. 2006). Our review of legal questions is de novo,
subject to the principles of deference articulated in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

, 844 (1984). See Catwell v. Att’y Gen., 

, 205 (3d Cir. 2010).

       We apply the categorical approach in determining
whether Cadapan’s conviction constitutes sexual abuse of a
minor under the INA. See Restrepo v. Att’y Gen., 

, 791 (3d Cir. 2010). We proceed in two steps: “first, we
must ascertain the definition for sexual abuse of a minor, and
second we must compare this ‘federal’ definition to the state
statutory offense in question.” 

meeting the
federal definition of sexual abuse of a minor is necessary for a
conviction under 18 Pa. Cons. Stat. § 3126(a)(7), then
Cadapan’s conviction under the statute “qualifies as a
conviction for sexual abuse of a minor and, by extension, an
aggravated felony for which he is removable.” 

and IJ properly turned to 18 U.S.C. §
3509(a)(8) as “a guide in identifying the types of crimes we
would consider to be sexual abuse of minor” under 8 U.S.C. §
1101(a)(43)(A). 

n.10 (quoting Matter of Rodriguez-
Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999)). In
Restrepo, we determined that Chevron deference was




                               6
appropriate with respect to the BIA’s definition of sexual
abuse of a 

. We therefore adopted the
BIA’s approach in Matter of Rodriguez-Rodriguez, which
was to use § 3509(a)(8) as a reference point for what should
be considered sexual abuse of a minor. 

that such
an approach was reasonable because the definition set forth in
§ 3509(a)(8) was consistent with “the commonly accepted
definition of ‘sexual abuse’” in Black’s Law Dictionary. 

noted that Congress had intended to incorporate a
broad range of state crimes under the umbrella of “sexual
abuse of a minor.” 

       Section 3509(a)(8) defines sexual abuse as “the
employment, use, persuasion, inducement, enticement, or
coercion of a child to engage in, or assist another person to
engage in, sexually explicit conduct or the rape, molestation,
prostitution, or other form of sexual exploitation of children,
or incest with children.” 18U.S.C. § 3509(a)(8).
Pennsylvania’s statute for indecent assault provides, in
relevant part, that:

       A person is guilty of indecent assault if the
       person has indecent contact with the
       complainant, causes the complainant to have
       indecent contact with the person or intentionally
       causes the complainant to come into contact
       with seminal fluid, urine or feces for the
       purpose of arousing sexual desire in the person
       or the complainant and . . . (7) the complainant
       is less than 13 years of age.

18 Pa. Cons. Stat. § 3126(a)(7). The BIA held that conduct
covered by the Pennsylvania statute categorically qualifies as




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“molestation” or “sexual exploitation” of a child within the
meaning of 18 U.S.C. § 3509(a)(8). (See App. 4.)

        Cadapan mischaracterizes the BIA’s decision, stating
that the agency “incorrectly concluded that one type of sexual
abuse—‘molestation’—necessarily encompasses all conduct
prohibited by Subsection (a)(7) of Pennsylvania’s indecent
assault statute.” Appellant’s Br. 16. He neglects the BIA’s
finding that the conduct also could be considered another
“form of sexual exploitation of children.” 18 U.S.C. §
3509(a)(8). Instead, Cadapan focuses on the decision of the
IJ, which stated that under a modified categorical approach,
all conduct falling under the “indecent contact” portion of the
Pennsylvania statute (the portion of the statute under which
Cadapan was convicted) qualifies as “molestation.”4 Cadapan

4
  The modified categorical approach is unnecessary in this
case even though the indecent assault statute is divisible
because all of the conduct covered by the statute constitutes
sexual abuse of a minor. See United States v. Jones, 

, 134 (3d Cir. 2014) (holding that modified categorical
approach is only appropriate where divisible state statute
proscribes some conduct that falls under umbrella of federal
statute and some that does not). The IJ erred in holding that
the portion of the Pennsylvania statute involving “contact
with seminal fluid, urine or feces” does not constitute sexual
abuse of a minor. In Stubbs v. Attorney General, we held that
in order for a conviction to be classified as “sexual abuse of a
minor,” “a past act with a child must have actually occurred.”

, 256 (3d Cir. 2006). We concluded that because
a New Jersey statute proscribing “engag[ing] in sexual
conduct which would impair or debauch the morals of a
child” did not necessarily involve a past act with a child,




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argues that the IJ improperly employed the Black’s Law
Dictionary definition of molestation and that the IJ should
have employed the definition provided in Rule 414 of the
Federal Rules of Evidence. He says that the definition of
molestation provided in Rule 414 is narrower and does not
include all conduct which would be considered “indecent
contact” under the Pennsylvania statute. In particular,
Cadapan notes that “indecent contact” may include touching
of “the backs of the legs . . . shoulders, neck, and back.”
Commonwealth v. Fisher, 

, 158 (Pa. Super. Ct.
2012). In contrast, under Rule 414, there must be touching of
“the genitalia, anus, groin, breast, inner thigh, or buttocks.”
18 U.S.C. § 2246(3).5 Consequently, he argues that
Cadapan’s conviction does not constitute sexual abuse of a
minor or, by extension, an aggravated felony.

      As an initial matter, we agree with the BIA that
conduct covered by the indecent assault statute categorically




convictions under it did not categorically constitute sexual
abuse of a minor. 

(citation omitted). Here,
“intentionally caus[ing] the complainant to come in contact
with the seminal fluid, urine or feces for the purpose of
arousing sexual desire in a person or a complainant,”
necessarily involves a past act with a child. 18 Pa. Cons. Stat.
§ 3126(a)(7). The IJ erred in concluding otherwise. The BIA
properly determined that this portion of the indecent assault
statute categorically qualifies as sexual exploitation, and by
extension sexual abuse of a minor.
5
  Rule 414 cross-references this section of the U.S. Code. See
Fed. R. Evid. 414.




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constitutes “other form[s] of sexual exploitation” of a child.6
18 U.S.C. § 3509(a)(8). On this issue alone, Cadapan’s
petition could be dismissed. We also agree, however, that
molestation includes all conduct covered by “indecent
contact.” Cadapan does not explain why we must look to the
Federal Rules of Evidence for the definition of molestation. It
is not cross-referenced in § 3509(a)(8) and generally when a
statutory term is left undefined, we give it its “ordinary
meaning” or common usage. United States v. Santos, 

, 511 (2008). In ascertaining the ordinary meaning of
terms, we may refer to legal dictionaries. Pa. Dep’t of Pub.
Welfare v. U.S. Dep’t of Health & Human Servs., 

, 511 (3d Cir. 2011). Black’s Law Dictionary defines
“molestation,” in part as “[t]he act of making unwanted and
indecent advances to or on someone, esp[ecially] for sexual
gratification.” Black’s Law Dictionary 1096 (9th ed. 2009).
As the IJ concluded, this definition encompasses all conduct
constituting “indecent contact” under 18 Pa. Cons. Stat. §
3126(a)(7). While Cadapan is correct that the Supreme Court
has held that ambiguous “criminal statutes referenced by the
INA must be construed in the noncitizen’s favor,” here, there
is no ambiguity. Moncrieffe v. Holder, 

, 1693
(2013). Moreover, § 3509(a)(8) is not actually referenced in
the INA and we have held that it is merely a guide as to what
constitutes sexual abuse of a minor. We conclude, therefore,
that the BIA reasonably determined that the “indecent

6
  Black’s Law Dictionary defines “sexual exploitation” as
“[t]he use of a person, esp[ecially] a child, in prostitution,
pornography, or other sexually manipulative activity that has
caused or could cause serious emotional injury.” Black’s Law
Dictionary 1498-99 (9th ed. 2009). All conduct proscribed by
18 Pa. Cons. Stat. § 3126(a)(7) meets this definition.




                              10
contact” referred to in the indecent assault statute
categorically constitutes molestation and, by extension,
sexual abuse of a minor. Cadapan is removable as an
aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii).

                          III.

       For the foregoing reasons, we will deny Cadapan’s
petition for review.




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