Campbell v. Holder, 698 F.3d 29, 33-34 (1st Cir. Oct. 19, 2012) (First Circuit acknowledged BIA decision not to follow strict categorical analysis in immigration cases, but held Supreme Court clearly required it anyway, even in sexual abuse of a minor case).

The court stated:

Although the BIA has said that the Taylor"Shepard approach need not be applied with the same rigor in the immigration context as in the criminal arena,In re Lanferman, 25 I. & N. Dec. 721, 727"28 (B.I.A. 2012), the Supreme Court's decision in Nijhawan v. Holder, 557 U.S. 29 (2009), requires the Taylor"Shepard analysis in INA cases"save where the matching INA offense is phrased so as to require a fact-specific determination rather than identification of a generic crime. [FN3] Further, certain offenses listed in INA 101(a)(43) must refer to generic crimes and one such offense is sexual abuse of a minor. Nijhawan, 557 U.S. at 37; accord Sanchez"Avalos v. Holder, No. 07"74437, """ F.3d """", 2012 U.S.App. LEXIS 18570, at *6 n. 1, 2012 WL 3799665, at *2 n. 1 (9th Cir. Sept. 4, 2012).

FN3.Nijhawan reasoned that some subparagraphs of the aggravated felony definition in INA 101(a)(43) invite inquiry into the specific circumstances surrounding an offender's commission of a [certain crime] on a specific occasion, 557 U.S. at 40, e.g., a provision covering offenses that involve[ ] fraud or deceit in which the loss to the ... victims exceeds $10,000, INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) (emphasis added). But where the INA's aggravated felony listing refers to a generic crime"e.g., murder"the Taylor"Shepard inquiry is required. Nijhawan, 557 U.S. at 34, 37; accord Carachuri"Rosendo v. Holder, 130 S.Ct. 2577, 2586 n. 11 (2010).

More recently the Supreme Court again stressed that (fact-specific provisions aside), the categorical approach operates similarly in the INA context as in the criminal context. In Kawashima v. Holder, 132 S.Ct. 1166 (2012), the Court said: To determine whether the Kawashimas' offenses involv[e] fraud or deceit within the meaning of [the INA aggravated felony statute], we employ a categorical approach by looking to the statute defining the crime of conviction, rather than to the specific facts underlying the crime. Id. at 1172.

(Id. at 33-34.)