Argued: November 29, 2012.
Petition for Review of an Order of the Board of Immigration Appeals.
For Alberto Velasco-Giron, Petitioner: Brian J. Murray, Attorney, Jones Day, Chicago, IL; Rajeev Muttreja, Attorney, Jones Day, New York, NY.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondents: Jennifer Jeanette Keeney, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.
Before POSNER, EASTERBROOK, and MANION, Circuit Judges. POSNER, Circuit Judge, dissenting.
Easterbrook, Circuit Judge.
A removable alien who has lived in the United States for seven years (including five as a permanent resident) is entitled to seek cancellation of removal unless he has committed an " aggravated felony." 8 U.S.C. § 1229b(a)(3). Alberto Velasco-Giron, a citizen of Mexico who was admitted to the United States for permanent residence, became removable after multiple criminal convictions. An immigration judge, seconded by the Board of Immigration Appeals, concluded that one of these convictions is for " sexual abuse of a minor", which 8 U.S.C. § 1101(a)(43)(A) classifies as an aggravated felony, and that Velasco-Giron therefore is ineligible even to be considered for cancellation of removal. In reaching that conclusion, the agency used as a guide the definition of " sexual abuse" in 18 U.S.C. § 3509(a)(8) rather than the one in 18 U.S.C. § 2243(a). See Matter of Rodriguez-Rodriguez, 22 I& N Dec. 991 (BIA 1999) (en banc); Matter of V-F-D, 23 I& N Dec. 859 (BIA 2006).
The conviction in question is for violating Cal. Penal Code § 261.5(c), which makes it a crime to engage in sexual intercourse with a person under the age of 18, if the defendant is at least three years older. The Board has held that this offense constitutes " sexual abuse of a minor" . Velasco-Giron was 18 at the time; the girl was 15; but the Board makes nothing of these ages, and it asks (so we too must ask) whether the crime is categorically " sexual abuse of a minor." The Board's affirmative answer stems from § 3509(a)(8), which 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" . Elsewhere the Criminal Code defines a " minor" as a person under 18. See 18 U.S.C. § § 2256(1), 2423(a).
The Board equates " child" with " minor" ; Velasco-Giron does not argue otherwise. Instead he contends that the Board should use § 2243(a), which defines " sexual abuse of a minor" as engaging in a " sexual act" (a phrase that includes fondling as well as intercourse) with a person between the ages of 12 and 15, if the offender is at least four years older. The offense under Cal. Penal Code § 261.5(c) does not satisfy that definition categorically--and Velasco-Giron's acts don't satisfy it specifically (the age gap of 18 to 15 is three years).
If the Immigration and Nationality Act supplied its own definition of " sexual abuse of a minor," ours would be an easy case. But it does not. That's why the Board had to choose, and the possibilities include § 3509(a)(8), § 2243(a), a few other sections in the Criminal Code, and a definition of the Board's invention. Section 1101(a)(43)(A) specifies that the category " aggravated felony" includes " murder, rape, or sexual abuse of a minor" . The Board noted in Rodriguez-Rodriguez that Congress could have written something like " murder, rape, or sexual abuse of a minor (as defined in section 2243 of title 18)" but did not do so--though other sections do designate specific federal statutes. See, e.g., 8 U.S.C. § 1101(a)(43)(B): " illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18)" . The Board stated that, because Congress chose to use a standard rather than a cross-reference, it would be inappropriate for the Board to adopt § 2243(a) as the sole definition; § 3509(a)(8) is more open-ended, which the Board saw as a better match given the legislative decision not to limit the definition by cross-reference.
A case such as Velasco-Giron's shows one reason why. The offense under Cal. Penal Code § 261.5(c) is a member of a set that used to be called " statutory rape" ; it fits comfortably next to " rape" in § 1101(a)(43)(A); but adopting § 2243(a) as an exclusive definition would make that impossible. What's more, to adopt § 2243(a) as the only definition would be to eliminate the possibility that crimes against persons aged 11 and under, or 16 or 17, could be " sexual abuse of a minor." (Recall that § 2243(a) deals only with victims aged 12 to 15.)
When resolving ambiguities in the Immigration and Nationality Act--and " sexual abuse of a minor" deserves the label " ambiguous" --the Board has the benefit of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), under which the judiciary must respect an agency's reasonable resolution. See, e.g., Scialabba v. Cuellar de Osorio, 134 S.Ct. 2191, 2203, 189 L.Ed.2d 98 (2014); INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). We have considered the Board's approach to " sexual abuse of a minor" five times, and each time we have held that Rodriguez-Rodriguez takes a reasonable approach to the issue. See Lara-Ruiz v. INS, 241 F.3d 934, 939-42 (7th Cir. 2001); Guerrero-Perez v. INS, 242 F.3d 727, 735 n.3 (7th Cir. 2001) (also accepting the Board's conclusion that a crime that a state classifies as a misdemeanor may be an " aggravated felony" for federal purposes); Espinoza-Franco v. Ashcroft, 394 F.3d 461 (7th Cir. 2004); Gattem v. Gonzales, 412 F.3d 758, 762-66 (7th Cir. 2005); Gaiskov v. Holder, 567 F.3d 832, 838 (7th Cir. 2009).
Velasco-Giron maintains that sexual intercourse with a person under 18, by someone else at least three years older, is not " sexual abuse of a minor." We could reach that conclusion, however, only if the Board exceeded its authority in Rodriguez-Rodriguez by looking to 18 U.S.C. § 3509(a)(8) as the starting point for understanding " sexual abuse" and to 18 U.S.C. § § 2256(1), 2423(a) for the definition of a " minor" as a person under 18. Our five decisions holding that the approach of Rodriguez-Rodriguez is within the Board's ...