In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-‐‑2353
ALBERTO VELASCO-‐‑GIRON,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals
____________________
ARGUED NOVEMBER 29, 2012 — DECIDED SEPTEMBER 26, 2014
____________________
Before POSNER, EASTERBROOK, and MANION, Circuit Judg-‐‑
es.
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 re-‐‑
moval unless he has committed an “aggravated felony.” 8
U.S.C. §1229b(a)(3). Alberto Velasco-‐‑Giron, a citizen of Mex-‐‑
ico who was admitted to the United States for permanent
residence, became removable after multiple criminal convic-‐‑
2 No. 12-‐‑2353
tions. An immigration judge, seconded by the Board of Im-‐‑
migration 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 defend-‐‑
ant 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, per-‐‑
suasion, inducement, enticement, or coercion of a child to
engage in, or assist another person to engage in, sexually ex-‐‑
plicit conduct or the rape, molestation, prostitution, or other
form of sexual exploitation of children, or incest with chil-‐‑
dren”. 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
No. 12-‐‑2353 3
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 sec-‐‑
tion 2243 of title 18)” but did not do so—though other sec-‐‑
tions 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 traf-‐‑
ficking 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
4 No. 12-‐‑2353
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 Na-‐‑
tionality 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 (1984), under which the judiciary must respect an agen-‐‑
cy’s reasonable resolution. See, e.g., Scialabba v. Cuellar de
Osorio, 134 S. Ct. 2191, 2203 (2014); INS v. Aguirre-‐‑Aguirre,
526 U.S. 415, 424–25 (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 reasona-‐‑
ble 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. Gon-‐‑
zales, 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 con-‐‑
clusion, 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 ap-‐‑
proach of Rodriguez-‐‑Rodriguez is within the Board’s discre-‐‑
No. 12-‐‑2353 5
tion foreclose Velasco-‐‑Giron’s arguments, unless we are
prepared to overrule them all—which he asks us to do.
He relies principally on Estrada-‐‑Espinoza v. Mukasey, 546
F.3d 1147 (9th Cir. 2008) (en banc), which held that the Board
erred in treating a violation of Cal. Penal Code §261.5(c) as
“sexual abuse of a minor.” Estrada-‐‑Espinoza reached this con-‐‑
clusion because §261.5(c) does not satisfy the definition in 18
U.S.C. §2243(a), which requires a victim under the age of 16
and a four-‐‑year age difference. To justify adopting the defi-‐‑
nition in §2243(a), the Ninth Circuit rejected the Board’s ap-‐‑
proach in Rodriguez-‐‑Rodriguez, holding, 546 F.3d at 1157 n.7,
that it flunks Step One of Chevron—that is to say, an agency
lacks discretion if Congress has made the decision and left
no ambiguity for the agency to resolve. That’s circular, how-‐‑
ever. If the court has already decided that the only proper
definition comes from §2243(a), then of course there’s no
discretion for the Board to exercise. But the phrase “sexual
abuse of a minor” that the Board must administer appears in
8 U.S.C. §1101(a)(43)(A), not 18 U.S.C. §2243(a), and
§1101(a)(43)(A) is open-‐‑ended. Precision is vital in a criminal
statute; it is less important in a civil statute such as
§1101(a)(43)(A), and the Board was entitled to find that Con-‐‑
gress omitted a statutory reference from §1101(a)(43)(A) pre-‐‑
cisely in order to leave discretion for the agency.
The Ninth Circuit also concluded that Chevron is inappli-‐‑
cable to Rodriguez-‐‑Rodriguez because the Board adopted a
standard rather than a rule. We’ll come back to this, but for
now two points stand out. First, the Ninth Circuit did not
identify any authority for its view that Chevron is limited to
rules. It did cite Christensen v. Harris County, 529 U.S. 576
(2000), which holds that an opinion letter from an agency
6 No. 12-‐‑2353
does not come within Chevron, but that’s a different point.
Christensen is a precursor of United States v. Mead Corp., 533
U.S. 218 (2001), which concluded that only regulations and
administrative adjudications come within Chevron. Rodri-‐‑
guez-‐‑Rodriguez is an administrative adjudication with prece-‐‑
dential effect; it is part of Chevron’s domain. Second, the
Ninth Circuit’s view that Rodriguez-‐‑Rodriguez did not adopt a
“rule” misunderstands what the Board did. It decided to
take the definition in §3509(a)(8) as its guide. The agency
could have issued a regulation pointing to §3509(a)(8) or re-‐‑
peating its language verbatim, and it is hard to imagine that
a court then would have said “not precise enough.” True,
§3509(a)(8) itself is open-‐‑ended; the Board needs to classify
one state statute at a time, and the statutory language leaves
room for debate about whether a particular state crime is in
or out. Yet many statutes and regulations adopt criteria that
leave lots of cases uncertain. If §3509(a)(8) is good enough to
be part of the United States Code, why would an agency be
forbidden to adopt its approach?
At all events, it would not be possible for us to follow Es-‐‑
trada-‐‑Espinoza without overruling Lara-‐‑Ruiz and its four suc-‐‑
cessors, for they hold that Rodriguez-‐‑Rodriguez is indeed enti-‐‑
tled to respect under Chevron and is a permissible exercise of
the Board’s discretion. Nor are we the only circuit to reach
that conclusion. Oouch v. Department of Homeland Security,
633 F.3d 119, 122 (2d Cir. 2011); Mugalli v. Ashcroft, 258 F.3d
52, 60 (2d Cir. 2001); and Restrepo v. Attorney General, 617
F.3d 787, 796 (3d Cir. 2010), all hold that Rodriguez-‐‑Rodriguez
is entitled to Chevron deference. Bahar v. Ashcroft, 264 F.3d
1309, 1312 (11th Cir. 2001), also accepts Rodriguez-‐‑Rodriguez,
though without explicit reliance on Chevron. Meanwhile the
Fifth Circuit has held that, as a matter of federal law under
No. 12-‐‑2353 7
the Sentencing Guidelines, a “minor” in the phrase “sexual
abuse of a minor” is a person under the age of 18. United
States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc). If
that’s so, then it would be hard to see a problem in using the
same age line to identify “sexual abuse of a minor” for im-‐‑
migration purposes.
Our dissenting colleague observes (see page 16) that
most states treat persons 16 and older as adults for the pur-‐‑
pose of defining sex offenses. Yet 18 U.S.C. §2256(1) and
§2423(a) define 18 as adulthood. A federal court may set
aside administrative decisions that are contrary to law, but
nothing permits us to reject agency decisions that follow the
United States Code, no matter how many states use a differ-‐‑
ent age demarcation. Our colleague’s view that “[t]he ques-‐‑
tion the Board should be addressing is the gravity of particu-‐‑
lar sexual offenses involving minors” (page 16) amounts to a
conclusion that the Board’s approach in Rodriguez-‐‑Rodriguez
is a substantively bad policy. As we have observed, howev-‐‑
er, Chevron permits the Board to establish its own doctrines
when implementing ambiguous statutes.
The dissent also maintains that the Board has departed
from its own precedent by supposing that Rodriguez-‐‑
Rodriguez adopted §3509(a)(8) as an exclusive test, rather
than (as the Board put it in Rodriguez-‐‑Rodriguez) as a
“guide.” Yet the Board’s decision in this case states that
§3509(a)(8) is being used “as a guide in identifying the types
of crimes that we would consider to constitute sexual abuse
of a minor” (emphasis added). If the Board in some other
case had classified Cal. Penal Code §261.5(c) (or another ma-‐‑
terially similar law) as not constituting “sexual abuse of a
minor,” then there would be a genuine concern about ad-‐‑
8 No. 12-‐‑2353
ministrative inconsistency, but our dissenting colleague does
not identify any such divergence.
Nor does Velasco-‐‑Giron, who (unlike the dissent) does
not contend that the Board has been self-‐‑contradictory or
that it erred by choosing 18 as the age of majority. Quite the
contrary, Velasco-‐‑Giron writes that the Board’s disposition
here “flowed … from” Rodriguez-‐‑Rodriguez. He acknowledg-‐‑
es that the Board has followed its own precedent, which it
established years before (in a decision enforced by Afridi v.
Gonzales, 442 F.3d 1212 (9th Cir. 2006)), that a violation of
Cal. Penal Code §261.5(c) entails “sexual abuse of a minor.”
That’s why Velasco-‐‑Giron asks us to reject Rodriguez-‐‑
Rodriguez and all of its sequels, as the Ninth Circuit did in
Estrada-‐‑Espinoza (which overruled Afridi).
We promised to return to the question whether, as the
Ninth Circuit believes, Chevron is inapplicable to standards.
We cannot locate any such doctrine in the Supreme Court’s
decisions. Just this year, for example, the Court held that the
EPA’s implementation of a statute requiring each state to
take account of how its emissions affect other states is cov-‐‑
ered by Chevron, even though the EPA’s approach calls for
the balancing of multiple factors, including cost. EPA v. EME
Homer City Generation, L.P., 134 S. Ct. 1584 (2014). Many
similar examples could be given, including the National La-‐‑
bor Relation Board’s vague (and shifting) specification of
“unfair labor practices,” which the Board has tried vainly
since its creation in 1935 to reduce to a rule. The Board’s def-‐‑
inition of an “unfair labor practice” remains a standard, and
ambulatory even by the standard of standards, but for all
that one to which the Supreme Court consistently defers.
No. 12-‐‑2353 9
If more support were needed, Aguirre-‐‑Aguirre provides it.
That decision reversed the Ninth Circuit for failing to accord
Chevron deference to one of the Board’s interpretive stand-‐‑
ards. An alien who committed a “serious nonpolitical crime”
before entering the United States is ineligible for asylum. 8
U.S.C. §1231(b)(3)(B)(iii) (formerly §1253(h)(2)(C)). The
Board has approached “serious nonpolitical crime” in com-‐‑
mon-‐‑law fashion, ruling one crime at a time that an offense
does, or doesn’t, meet this standard. It has not attempted to
formulate a rule that would dictate the classification of all
crimes. The Ninth Circuit was dissatisfied with the Board’s
approach, but the Supreme Court held it entitled to respect
under Chevron. If the Board can define “serious nonpolitical
crime” one case at a time, why can’t it define “sexual abuse
of a minor” one case at a time? Actually Rodriguez-‐‑Rodriguez
does better than that, by drawing a precise age line at 18 and
using §3509(a)(8) as a guide.
If what the Board did in Aguirre-‐‑Aguirre was enough,
what it did in Rodriguez-‐‑Rodriguez was enough. When an
agency chooses to address topics through adjudication, it
may proceed incrementally; it need not resolve every variant
(or even several variants) in order to resolve one variant.
See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 203 (1947); Heck-‐‑
ler v. Ringer, 466 U.S. 602, 617 (1984). This is “one of the earli-‐‑
est principles developed in American administrative law”.
Almy v. Sebelius, 679 F.3d 297, 303 (4th Cir. 2012).
Many judges dislike administrative adjudication because
they think standards generated in common-‐‑law fashion are
poorly theorized and too uncertain to give adequate notice
to persons subject to regulation. Judge Friendly once held,
for these reasons and others, that the NLRB must replace ad-‐‑
10 No. 12-‐‑2353
judication with rulemaking when it wants to announce rules
of general application. Bell Aerospace Co. v. NLRB, 475 F.2d
485 (2d Cir. 1973). But the Supreme Court was not persuad-‐‑
ed and unanimously concluded that an agency can choose
freely between rules and standards, between rulemaking
and adjudication. NLRB v. Bell Aerospace Co., 416 U.S. 267
(1974). Since Bell Aerospace “[t]he Court has not even sug-‐‑
gested that a court can constrain an agency’s choice between
rulemaking and adjudication”. Richard J. Pierce, Jr., I Admin-‐‑
istrative Law Treatise §6.9 at 510 (5th ed. 2010).
Velasco-‐‑Giron proposes a more ambitious doctrine than
the one Judge Friendly favored. He wants the Board not only
to replace standards with rules but also to adopt rules that
are complete and self-‐‑contained. In Velasco-‐‑Giron’s view,
until the Board has solved every interpretive problem in the
phrase “sexual abuse of a minor,” and shown how every pos-‐‑
sible state crime must be classified, it cannot decide how any
state conviction can be classified. That requirement would be
inconsistent with Aguirre-‐‑Aguirre and would send the Board
on an impossible quest.
Immigration statutes are full of vague words, such as
“persecution,” and vague phrases such as “crime of moral
turpitude.” The Board has not found a way to solve every
interpretive problem in these phrases and has chosen the
common-‐‑law approach. Judges have failed to turn tort law
into a set of rules; Holmes declared in The Common Law that
they were bound to do so eventually, but more than 130
years have passed without the goal being nearer. Perhaps
“sexual abuse of a minor” will prove equally intractable.
Judges are not entitled to require the impossible, or even the
answer they think best. Like the NLRB, the FTC, the SEC,
No. 12-‐‑2353 11
and many another agency, the BIA is a policy-‐‑making insti-‐‑
tution as well as a judicial one. It may choose standards as
the best achievable policies. Just as judges do every day, the
Board is entitled to muddle through.
The petition for review is denied.
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 con-
victed 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 defen-
dant pleaded guilty on his nineteenth birthday; the sexual
relationship had been brief and consensual; that is another
fact the Board ignored.
Now 26 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 a large measure of deference to the Board’s definition of
a term appearing in the immigration statutes. INS v. Aguirre-
Aguirre, 526 U.S. 415, 424–25 (1999); Arobelidze v. Holder, 653
F.3d 513, 519 (7th Cir. 2011). But the Board has not defined
“sexual abuse of a minor.” True, it said in this case, quoting
In re Rodriguez-Rodriguez, 22 I & N. Dec. 991, 995 (1999), that
it has defined the term—defined it “as encompassing any of-
fense that involves ’the employment, use, persuasion, in-
ducement, enticement, or coercion of a child to engage in
sexually explicit conduct or the rape, molestation, prostitu-
tion, or other form of sexual exploitation of children, or in-
cest 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
Rodriguez-Rodriguez 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
id., § 3509(a)(9), defining “sexually explicit conduct” very
broadly. Read literally, the definition would encompass the
petitioner’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 present case said it had done (while also saying, as we’ll
see, that it hadn’t), as the definition of “sexual abuse of a mi-
nor” in the immigration statute, that would be the end of
this case. But Rodriguez-Rodriguez had gone on to say that “in
defining the term ‘sexual abuse of a minor,’ we are not
14 No. 12-2353
obliged to adopt a federal or state statutory provision” and
“we are not adopting this statute as a definitive standard or
definition 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 Doc. 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 repeated these points, qualifying the status of
the definition it had used in the earlier case, in the present
case, and added that to derive the meaning of the words
“sexual,” “minor,” and “abuse” in the aggravated-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, 395 F.3d 461, 464–65 (7th Cir. 2005), quoting
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 criminal
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 had
pointed to “the severity of the penalty” that the petitioner
had received—10 years’ imprisonment, the statutory maxi-
mum—as “demonstrat[ing] that Texas considers the crime to
be serious. In consideration of these factors, we find that in-
decent exposure in the presence of a child by one intent on
sexual arousal is clearly sexual abuse of a minor within the
meaning of” the immigration statute. 22 I & N Doc. 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 in its opinion in this case that Rod-
riguez-Rodriguez had done that, it was wrong, and was there-
fore misapplying Board precedent, and for that reason
(among others) its decision could not stand. Huang v. Mu-
kasey, 534 F.3d 618, 620 (7th Cir. 2008); Ssali v. Gonzales, 424
F.3d 556, 564–66 (7th Cir. 2005); Hernandez 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 be-
yond 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 petitioner’s crime and
punishment in relation to the crime and punishment in Rod-
riguez-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) why the
16 No. 12-2353
petitioner’s offense should be regarded as grave; in doing so
the Department invites us to flout SEC v. Chenery Corp., 318
U.S. 80 (1943).
The inadequacy of the Board’s analysis would not be fa-
tal if the correctness of the conclusion could not be ques-
tioned. (For then the Board’s error would be harmless.) It
could not be questioned if, for example, the petitioner had
been convicted of a violent rape. But voluntary sexual inter-
course between a just-turned 21 year old and an about-to-
turn 18 year old (the premise of the Board’s opinion, for it
declined to consider the actual facts of the petitioner’s mis-
demeanor) is illegal in only ten states; in the other forty
states, the age of consent is either 16 or 17. The petitioner’s
sentence to unsupervised probation should tell us what Cali-
fornia, though one of the ten, thinks of the gravity of his of-
fense. The age of consent is 16 in a majority of the states (31)
as well as in the Model Penal Code, § 213.3(1)(a). What cen-
tury is the Board of Immigration Appeals living in? By age
17, 40 percent of American girls have had sexual intercourse.
Guttmacher Institute, Fact Sheet, “American Teens’ Sexual
and Reproductive Health: Sexual Activity,” May 2014, www.
guttmacher.org/pubs/FB-ATSRH.html (visited Sept. 3, 2014).
One might have expected the Board to go with the ma-
jority view of the states. For remember that the Board does
not regard the definition of sexual abuse in the federal
criminal code as a straitjacket. It is merely a guide and all the
other potential sources of guidance point in the opposite di-
rection to the Board’s ruling in this case. Besides the sources
of guidance just mentioned, see, e.g., United States v. Osborne,
551 F.3d 718, 720–21 (7th Cir. 2009); United States v. Lopez-
Solis, 447 F.3d 1201, 1207, 1209 (9th Cir. 2006). If a 10-year
No. 12-2353 17
prison sentence informs the Board’s judgment of whether a
sexual offense involving a minor should be deemed an ag-
gravated felony, as we learn from Rodriguez-Rodriguez that it
does, then a sentence of unsupervised probation should in-
form the Board’s judgment as well, yet is not mentioned in
the Board’s opinion in this case.
Nor is this a case in which the immigration judge pro-
vided the analysis and the Board relied on it. The immigra-
tion judge provided no analysis but said merely that she was
bound by Rodriguez-Rodriguez and that the petitioner’s con-
viction “constitutes sexual abuse of a minor and although
treated as a misdemeanor, under state law and in [Velasco-
Giron’s] case by its terms constitutes an aggravated felony
under” the immigration statute. The passage I’ve just quoted
is garbled, but implies that the Board has laid down a rule
that any unlawful sexual activity involving a minor, how-
ever trivial, is an aggravated felony. It has never laid down
such a rule.
The majority opinion misreads Rodriguez-Rodriguez as
having adopted a rule that governs this case. The same mis-
reading invalidates the Board’s decision in this case.