Alberto Velasco-Giron v. Eric Holder, Jr.
Opinion
12 No. 12‐2353
POSNER, Circuit Judge, dissenting. The ground on which the petitioner was denied cancellation of removal (he does not deny that he was removable, because of a conviction for harassment and for violating an order of protection, see 8 U.S.C. §§ 1227(a)(2)(E)(i), (ii)) was that he had been convict‐ ed in California in 2005 of engaging in sexual intercourse with a girl who was not yet 18 and was more than three years younger than he. Cal. Penal Code § 261.5(c). She was in fact 15 and he 18, but the Board of Immigration Appeals did not consider the ages of either party to the sexual relation‐ ship. It relied entirely on the fact that the girl was under 18 and he more than three years older. She could have been one day short of her eighteenth birthday on the day when the relationship began and that day could have been his twenty‐ first birthday. The crime was punished as a misdemeanor under California law and according to his uncontradicted affidavit his only punishment was unsupervised probation. The crime was reported by the girl’s father and the defend‐ ant pleaded guilty on his nineteenth birthday; the sexual re‐ lationship had been brief and consensual; that is another fact the Board ignored.
Now 28 years old, the petitioner has lived in the United States since the age of 14 and is a lawful permanent resident. The immigration judge said that “there are some extremely strong equities in this case.” But the immigration statute pre‐ cludes cancellation of removal of an alien who has been con‐ victed of an “aggravated felony,” defined (for this purpose) as including “murder, rape, or sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A), and the immigration judge ruled that the California misdemeanor was “sexual abuse of a mi‐
No. 12‐2353 13
nor” and therefore a categorical bar to cancellation of re‐ moval. The Board of Immigration Appeals affirmed.
So what is “sexual abuse of a minor”? We are obliged to give some deference to the Board’s definition of a term ap‐ pearing in the immigration statutes. INS v. Aguirre‐Aguirre, 526 U.S. 415, 424–25 (1999); Arobelidze v. Holder, 653 F.3d 513, 519–20 (7th Cir. 2011). But the Board has not defined “sexual abuse of a minor.” True, it said in this case, quoting In re Ro‐ driguez‐Rodriguez, 22 I&N Dec. 991, 995 (BIA 1999) (en banc), that it has defined the term—defined it “as encompassing any offense that involves ‘the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit con‐ duct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.’”
Rejecting a very narrow definition (advocated by Rodri‐ guez‐Rodriguez) of “sexual abuse of a minor” elsewhere in the federal criminal code, see 18 U.S.C. § 2243, the Board in his case had taken the definition verbatim from a provision of the federal criminal code that defines the rights of child victims as witnesses. 18 U.S.C. § 3509(a)(8); see also 18 U.S.C. § 3509(a)(9), defining “sexually explicit conduct” very broad‐ ly. Read literally, the definition would encompass the peti‐ tioner’s misdemeanor, because obviously he induced the girl to have sex with him. So if Rodriguez‐Rodriguez had adopted the definition in section 3509(a)(8), as the Board in the pre‐ sent case said it had done (while also saying, as we’ll see, that it hadn’t), as the definition of “sexual abuse of a minor” in the immigration statute, that would be the end of this case. But Rodriguez‐Rodriguez had gone on to say that “in de‐ fining the term ‘sexual abuse of a minor,’ we are not obliged 14 No. 12‐2353
to adopt a federal or state statutory provision” and “we are not adopting this statute as a definitive standard or defini‐ tion but invoke it as a guide in identifying the types of crimes we would consider to be sexual abuse of a minor.” 22 I&N Dec. at 994, 996. In other words, the Board found the definition useful given the facts of the Rodriguez‐Rodriguez case (which are very different from the facts of the present case), but did not adopt it as the canonical definition of “sexual abuse of a minor.”
The Board in this case added that to derive the meaning of the words “sexual,” “minor,” and “abuse” in the aggra‐ vated‐felony provision of the immigration statute it would look to the “ordinary, contemporary, and common meaning of the words” (and for this it cited our decision in Espinoza‐ Franco v. Ashcroft, 394 F.3d 461, 464–65 (7th Cir. 2005), quot‐ ing United States v. Martinez‐Carillo, 250 F.3d 1101, 1104 (7th Cir. 2001)). So neither in this case nor in Rodriguez‐Rodriguez did the Board adopt either the definition in the federal crim‐ inal code or an alternative definition.
In Rodriguez‐Rodriguez the specific offense of which the petitioner had been convicted was “indecency with a child by exposure” in violation of Texas law, and the Board point‐ ed to “the severity of the penalty” that the petitioner had re‐ ceived—10 years’ imprisonment, the statutory maximum— as “demonstrat[ing] that Texas considers the crime to be se‐ rious. … In consideration of these factors, [the Board found] that indecent exposure in the presence of a child by one in‐ tent on sexual arousal is clearly sexual abuse of a minor within the meaning of” the immigration statute. 22 I&N Dec. at 996.
No. 12‐2353 15
So Rodriguez‐Rodriguez did not define “sexual abuse of a minor” in the immigration statute to encompass every crimi‐ nal sexual activity involving a minor, as section 3509(a)(8) of the federal criminal code seems to do. Instead it gave rea‐ sons pertinent to the case before it, in particular the severity of the punishment meted out by the state court, for conclud‐ ing that the petitioner’s particular criminal offense had been serious enough to merit designation as sexual abuse of a mi‐ nor for purposes of immigration law. In the present case the Board gave no reason for its similar, but less plausible, con‐ clusion. Given the language it quoted in this case from the earlier decision, it couldn’t have thought that Rodriguez‐ Rodriguez had adopted the text of section 3509(a)(8) as the definition of “sexual abuse of a minor” in the immigration statute. But if it did think Rodriguez‐Rodriguez had done that, it was wrong, was therefore misapplying Board precedent, and for that reason (among others) its decision could not stand. Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008); Ssali v. Gonzales, 424 F.3d 556, 564–66 (7th Cir. 2005); Hernan‐ dez v. Ashcroft, 345 F.3d 824, 846–47 (9th Cir. 2003). Treating the federal statute as merely a guide obliged the Board in this case to go beyond the definition of sexual abuse in the federal criminal code, and it failed to do that, the critical omission being a failure to consider the gravity of the peti‐ tioner’s crime and punishment in relation to the crime and punishment in Rodriguez‐Rodriguez.
Characteristically (see, e.g., Benitez Ramos v. Holder, 589 F.3d 426, 430 (7th Cir. 2009); Miljkovic v. Ashcroft, 376 F.3d 754, 756–57 (7th Cir. 2004)), the Justice Department tries to remedy the deficiencies of the Board’s analysis by supplying reasons (including references to social science data) for why the petitioner’s offense should be regarded as grave; in do‐ 16 No. 12‐2353
ing so the Department flouts SEC v. Chenery Corp., 318 U.S. 80 (1943).
Free access — add to your briefcase to read the full text and ask questions with AI
Alberto Velasco-Giron v. Eric Holder, Jr. (Alberto Velasco-Giron v. Eric Holder, Jr.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.