CA8 on Categorical Approach: Peh v. Garland

Peh v. Garland

"The Board’s decision in this case is not clear about how it understood the “realistic probability” requirement. The decision said that Peh had “not established a realistic probability that Iowa would successfully prosecute a violation of Iowa Code § 710.10(3) involving any of the ‘illegal acts’ he cites to in his brief.” The Board could mean only that the State would not “successfully prosecute” enticement with intent to commit disorderly conduct or harassment because the text of the statute would not encompass that conduct. If so, then we disagree for the reasons discussed, and the Board should determine on remand whether § 710.10(3), so understood, constitutes a crime of child abuse. Alternatively, the Board could mean that the State would not successfully prosecute enticement with intent to commit disorderly conduct or harassment, because there is no showing that those hypothetical scenarios have ever occurred or that the State actually prosecutes the offense in those situations. We decline to review the latter rationale at this stage, however, because the conclusion is not clear on the face of the Board’s decision (it would involve an awkward use of the word “successfully”), and the government expressly disavows that approach in its brief on appeal. Resp’t Br. 17-18. The Board may clarify its reasoning on remand as warranted. For these reasons, the petition for review is granted, the Board’s decision of February 24, 2020, is vacated, and the case is remanded for further proceedings."

[Hats off to Benjamin Bergmann and Al Smith!]