FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ELIAS ESTRADA-ESPINOZA,
Petitioner, No. 05-75850
v.
Agency No.
A76-339-422
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 25, 2008—Pasadena, California
Filed October 20, 2008
Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Andrew J. Kleinfeld,
Michael Daly Hawkins, Sidney R. Thomas,
Barry G. Silverman, Ronald M. Gould, Richard A. Paez,
Richard C. Tallman, and Richard R. Clifton, Circuit Judges.
Opinion by Judge Thomas
14755
ESTRADA-ESPINOZA v. MUKASEY 14759
COUNSEL
Saad Ahmad, Saad Ahmad & Associates; Fremont, Califor-
nia, for the petitioner.
Gregory G. Katsas, Acting Assistant Attorney General;
Thomas H. Dupree, Jr., Deputy Assistant Attorney General;
Donald E. Keener, Deputy Director; Bryan S. Beier, Senior
Litigation Counsel; Jennifer Levings, Trial Attorney; Wash-
ington, D.C., for the respondent.
Vikram K. Badrinath, Esquire, Vikram Badrinath, PC, Tuc-
son, Arizona, amicus curiae for the American Immigration
Lawyers Association.
14760 ESTRADA-ESPINOZA v. MUKASEY
Zachary Miller Nightingale and Avantika Shastri, Attorneys,
Van Der Hout, Brigagliano & Nightingale, LLP, San Fran-
cisco, California, amicus curiae for the Immigration Legal
Resource Center.
OPINION
THOMAS, Circuit Judge:
In this appeal, we consider whether a conviction under any
of four California statutory rape provisions—California Penal
Code §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h)—
constitutes the aggravated felony “sexual abuse of a minor”
within the meaning of 8 U.S.C. § 1101(a)(43). We conclude
that each statute defines conduct that is categorically broader
than the generic definition of “sexual abuse of a minor” and
grant the petition for review.
I
Petitioner Juan Elias Estrada-Espinoza is a native and citi-
zen of Mexico. He entered the United States in 1992, at the
age of 12. He adjusted status to become a lawful permanent
resident on June 25, 1998. After learning about Estrada-
Espinoza’s state statutory rape convictions stemming from his
relationship with his younger girlfriend, the Department of
Homeland Security (“DHS”) placed Estrada-Espinoza in
removal proceedings in 2005, charging him with being
removable as an alien convicted of an aggravated felony.
Estrada-Espinoza met Sonia Arredondo in June 2001. He
was 20 years old, and Arredondo was either 15 or 16 years
old. Estrada-Espinoza claims that Arredondo and her friends
told him she was 18 at the time of their meeting, and that he
did not learn of her true age until December 2001. The two
began living together in the home of Estrada-Espinoza’s par-
ESTRADA-ESPINOZA v. MUKASEY 14761
ents a few months after they met. Both sets of parents
approved of the relationship and Estrada-Espinoza regularly
visited his girlfriend’s parents. After six months of living with
Estrada-Espinoza’s parents, the couple moved to a residence
of their own. During this time, Estrada-Espinoza worked in
various grocery stores to support himself, his girlfriend, and,
eventually, the child they raised together.
On July 13, 2004, the District Attorney filed statutory rape
charges against Estrada-Espinoza, alleging fourteen counts of
various sex offenses. Estrada-Espinoza was convicted on four
counts, all of them relating to sexual activity with his girl-
friend: unlawful sexual intercourse with a person under 18
and three years younger than defendant, not defendant’s
spouse, Cal. Penal Code § 261.5(c);1 sodomy of a person
under 18, § 286(b)(1); oral copulation of a person under 18,
§ 288a(b)(1); and sexual penetration by a foreign object of a
person under 18, § 289(h). The court sentenced Estrada-
Espinoza to 365 days in county jail, with credit for time
served, on February 15, 2005. It is unclear from the record
how he pled or whether there was a trial.
After DHS commenced proceedings, Estrada-Espinoza
admitted the allegations but denied removability and moved
to terminate the removal proceedings. On July 8, 2005, the
Immigration Judge (“IJ”) denied the motion to terminate the
proceedings and found Estrada-Espinoza removable as an
“aggravated felon” under 8 U.S.C. § 1227(a)(2)(A)(iii),
§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”), as that term is defined in 8 U.S.C. § 1101(a)(43)(A).
That provision defines “aggravated felony” as “murder, rape,
or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). The
IJ appeared to rest this decision on Estrada-Espinoza’s con-
viction under California Penal Code § 261.5(c), the statutory
rape law which criminalizes sexual intercourse with someone
1
Hereinafter all state statutory citations are to the California Penal Code
unless otherwise noted.
14762 ESTRADA-ESPINOZA v. MUKASEY
under 18 and three years younger than the defendant, who is
not the defendant’s spouse. The IJ relied at least in part on our
withdrawn opinion in Valencia v. Gonzales, 406 F.3d 1154,
1158 (9th Cir. 2005), which found that § 261.5(c) was a crime
of violence and hence an aggravated felony. The IJ recog-
nized that Estrada-Espinoza was being removed for “sexual
abuse of a minor,” not a “crime of violence.” The IJ did not
have the benefit of the Valencia panel’s amended opinion
holding that § 261.5(c) is not a crime of violence under 8
U.S.C. § 1101(a)(43)(F). See Valencia v. Gonzales, 439 F.3d
1046, 1052-53 (9th Cir. 2006).
Estrada-Espinoza appealed the IJ’s decision to the Board of
Immigration Appeals (“BIA”), which dismissed the appeal on
October 5, 2005. The BIA found no merit to Estrada-
Espinoza’s argument that because the sexual acts were con-
sensual, “no violence was used and that there is no evidence
of potential harm to the victim.” Instead, the BIA relied heav-
ily on its own published opinion Rodriguez-Rodriguez, 22 I.
& N. Dec. 991, 996 (BIA 1999), in which the BIA adopted
a “guide” to help identify offenses which constitute “sexual
abuse of a minor.” The BIA concluded that the state of Cali-
fornia necessarily proved that Estrada-Espinoza engaged in
conduct which constituted “sexual abuse of a minor” within
the meaning of the guide adopted in Rodriguez-Rodriguez, in
order to convict Estrada-Espinoza under the four California
statutes. The BIA affirmed the IJ’s finding that Estrada-
Espinoza had been convicted of an aggravated felony, citing
all four of the statutes of conviction. This timely petition for
review followed.
A panel of our Court denied the petition for review, holding
that our decision in Afridi v. Gonzales, 442 F.3d 1212 (9th
Cir. 2006), dictated the result. Estrada-Espinoza v. Gonzales,
498 F.3d 933, 936 (9th Cir. 2007). Two members of the panel
specially concurred, agreeing that Afridi controlled, but sug-
gesting that Afridi be revisited en banc and overruled. Id. at
936-40 (Thomas and Leighton, concurring). Thereafter, upon
ESTRADA-ESPINOZA v. MUKASEY 14763
the vote of a majority of the nonrecused active judges, the
case was ordered reheard en banc pursuant to Ninth Circuit
Rule 35-3. Estrada-Espinoza v. Mukasey, 525 F.3d 821, 822
(9th Cir. 2008).
We review de novo the legal question of whether a convic-
tion under the relevant California statutes constitutes “sexual
abuse of a minor” within the meaning of 8 U.S.C.
§ 1101(a)(43)(A). See Navarro-Lopez v. Gonzales, 503 F.3d
1063, 1067-68 (9th Cir. 2007) (en banc).
[1] To determine whether a conviction under §§ 261.5(c),
286(b)(1), 288a(b)(1), or 289(h) constitutes “sexual abuse of
a minor” within the meaning of 8 U.S.C. § 1101(a)(43)(A),
we apply the familiar “categorical approach” set forth in Tay-
lor v. United States, 495 U.S. 575, 602 (1990). “The categori-
cal approach requires us to ‘make a categorical comparison of
the elements of the statute of conviction to the generic defini-
tion [of the crime], and decide whether the conduct proscribed
by [the statute] is broader than, and so does not categorically
fall within, this generic definition.’ ” Navarro-Lopez, 503
F.3d at 1067-68 (quoting Huerta-Guevara v. Ashcroft, 321
F.3d 883, 887 (9th Cir. 2003)). We do not examine the facts
underlying the offense, but “look only to the fact of convic-
tion and the statutory definition of the prior offense.” Taylor,
495 U.S. at 602.
II
A
[2] We begin by determining the generic elements of the
crime “sexual abuse of a minor.” In the absence of specific
congressional guidance as to the elements of a crime, courts
have been left to determine the “generic sense in which the
term is now used in the criminal codes of most States.” Id. at
598. Fortunately, we are not faced with that circumstance here
because Congress has enumerated the elements of the offense
14764 ESTRADA-ESPINOZA v. MUKASEY
of “sexual abuse of a minor” at 18 U.S.C. § 2243.2 That sec-
tion provides, in relevant part:
§ 2243. Sexual abuse of a minor or ward
(a) Of a minor.—Whoever . . . knowingly engages in
a sexual act with another person who—
(1) has attained the age of 12 years but has
not attained the age of 16 years; and
(2) is at least four years younger than the
person so engaging;
or attempts to do so, shall be fined under
this title, imprisoned not more than 15
years, or both.
Thus, the generic offense of “sexual abuse of a minor”
requires four elements: (1) a mens rea level of knowingly; (2)
a sexual act; (3) with a minor between the ages of 12 and 16;
and (4) an age difference of at least four years between the
defendant and the minor.
[3] Although it is unnecessary to survey current criminal
law to ascertain a federal definition because Congress has
already supplied it, such a review shows that the congressio-
nal definition comports with “the ordinary, contemporary, and
common meaning of the words” of the term. United States v.
Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (internal
2
Although Congress also defined “sexual abuse” in 18 U.S.C.
§ 3509(a)(8), this section does not define a crime, but merely addresses the
rights of child victims and witnesses. Since 8 U.S.C. § 1101(a)(43)(A)
defines a category of crime (aggravated felony), it is more plausible that
Congress intended the “aggravated felony” of “sexual abuse of a minor”
to incorporate the definition of “sexual abuse of a minor” in 18 U.S.C.
§ 2243, which is a criminal statute outlining the elements of the offense,
rather than the definition of “sexual abuse” found in 18 U.S.C. § 3509.
ESTRADA-ESPINOZA v. MUKASEY 14765
quotation marks omitted). As it is our duty “to give effect, if
possible, to every clause and word of a statute,” Duncan v.
Walker, 533 U.S. 167, 174 (2001) (internal quotation marks
omitted), a conviction which constitutes “sexual abuse of a
minor” must necessarily contain an element of abuse. We
have previously construed the word “abuse” as “ ‘physical or
nonphysical misuse or maltreatment” or “ ‘use or treat[ment]
so as to injure, hurt, or damage.’ ” United States v. Lopez-
Solis, 447 F.3d 1201, 1207 (9th Cir. 2006) (quoting United
States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001);
see also United States v. Pallares-Galan, 359 F.3d 1088,
1100 (9th Cir. 2004)). A survey of relevant statutes makes
clear that, under national contemporary standards, although
sexual activity with a younger child is certainly abusive, sex-
ual activity with an older adolescent is not necessarily abu-
sive.
[4] The Model Penal Code, § 213.3(1)(a), defines statutory
rape as “[a] male who has sexual intercourse with a female
not his wife, or any person who engages in deviate sexual
intercourse or causes another to engage in deviate sexual
intercourse, . . . if: (a) the other person is less than [16] years
old and the actor is at least [four] years older than the other
person . . . .” Model Penal Code § 213.3(1)(a) (2001) (alter-
ation in original). The majority of states set the age of sexual
consent at age 16 and forty-five states permit marriage at age
16 if the parents consent. See United States v. Thomas, 159
F.3d 296, 299 (7th Cir. 1998). California is joined by only
about six other states in criminalizing sexual intercourse
between a 21-year-old and someone about to turn 18. See
“Statutory Rape: A Guide to State Laws and Reporting
Requirements,” The Lewin Group, prepared for the Depart-
ment of Health and Human Services, Dec. 15, 2004, at http://
www.lewin.com/content/publications/3068.pdf; “Statutory
Rape Laws by State,” Connecticut Office of Legislative
Research, April 14, 2003, at www.cga.ct.gov/
2003/olrdata/jud/rpt/2003-R-0376.htm. Thirty-five states per-
mit sexual intercourse between a 22-year-old and someone
14766 ESTRADA-ESPINOZA v. MUKASEY
who just turned 16, almost two years younger than California
would permit. “Statutory Rape Laws by State”; “Statutory
Rape: A Guide to State Laws.” In addition, another seven
states permit consensual sex between someone who just
turned 21 and someone who is close to turning 17, which Cal-
ifornia would not allow. “Statutory Rape Laws by State”;
“Statutory Rape: A Guide to State Laws.” The fact that the
vast majority of states do not forbid consensual sexual inter-
course with a 17-year-old male or female indicates that such
conduct is not necessarily abusive3 under the ordinary, con-
temporary, and common meaning of “abuse.”
[5] Our interpretations are in accord. Recently, in constru-
ing a Tennessee statutory rape statute similar to California’s,
we held that “[c]onsensual sexual penetration of an individual
between the ages of 17 and 18 by a 22 year old does not nec-
essarily involve physical ‘misuse,’ ‘injur[y],’ or ‘assault’ ”
because neither physical force nor resulting physical injury
are necessarily implicated and because the Tennessee law
covered consensual sexual relationships. Lopez-Solis, 447
F.3d at 1207 (alteration in original). We also held that psycho-
logical abuse was not necessarily a component of sexual pen-
etration of a 17-year-old for two reasons. First, because the
government failed to provide any evidence showing such
harm and “[i]n the absence of evidence, we refuse to assume
the existence of harm.” Id. at 1208 (citing Thomas, 159 F.3d
at 299). Second, because “our prior caselaw—as well as com-
mon sense—suggest that, while consensual underage sex may
be psychologically harmful to a young teen, it may not be
harmful to an older one.” Id. We explained that “a teen’s
capacity to understand the nature of sexual relations increases
3
California courts charged with interpreting California’s statutory rape
laws have recognized that “a minor over the age of 14 who voluntarily
engages in sexual intercourse is not necessarily a victim of sexual abuse.”
In re Kyle F., 112 Cal. App. 4th 538, 543 (Cal. Ct. App. 2003) (citing
County of San Luis Obispo v. Nathaniel J., 50 Cal. App. 4th 842, 845 (Cal.
Ct. App. 1996)).
ESTRADA-ESPINOZA v. MUKASEY 14767
gradually as he or she grows older. Thus, an almost 18 year
old typically will have a higher level of sophistication about
sex . . . than a younger teen or child.” Id. at 1209.
We and our sister circuits have been careful on other occa-
sions to distinguish laws governing the sexual behavior of
younger teenagers from those governing the behavior of 16-
and 17-year-olds. See, e.g., United States v. Melton, 344 F.3d
1021, 1028 (9th Cir. 2003) (recognizing the trend of treating
older teenagers differently but distinguishing Alaska law
because it applies to those under 18 only when incest or simi-
lar familial relationships are involved); Pallares-Galan, 359
F.3d at 1101; Thomas, 159 F.3d at 299; United States v. Kirk,
111 F.3d 390, 395 n.8 (5th Cir. 1997) (“Importantly, the cir-
cumstances surrounding sexual contact between [a 19-year-
old and a 16-year-old] are far different from those surround-
ing sexual contact between a young child and a much older
adult.”).
We have extended that line of thought in the context of
other generic offenses as well. In Valencia, 439 F.3d 1046, we
held that § 261.5(c) is not categorically a “crime of violence”
and thus is not an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F). As Valencia explained, a crime of violence
is defined as any offense “ ‘that, by its nature, involves a sub-
stantial risk that physical force against the person or property
of another may be used in the course of committing the
offense.’ ” Id. at 1049 (quoting 18 U.S.C. § 16). We recog-
nized that other circuits had held that “the non-consent of the
victim is the touchstone for determining whether a conviction
constitutes a crime of violence under § 16(b)” because “a
touching without the victim’s consent presents a substantial
risk that force may be used.” Id. at 1050 (internal quotation
marks omitted). However, “[n]one of our sister circuits has
considered whether consensual sexual intercourse with a
minor between the ages of seventeen and eighteen”—the full
range of conduct involved here—“is a crime of violence
under § 16(b).” Id. As a result, because “California sets the
14768 ESTRADA-ESPINOZA v. MUKASEY
age of majority at eighteen, Cal. Penal Code § 261.5(a), this
case requires us to break new ground.” Id. Thus, we acknowl-
edged a significant difference between sexual relations with
someone under 16 and sexual relations with someone between
the ages of 16 and 18.
Moreover, we found that “the assumption that a minor’s
legal incapacity implies that the proscribed sexual intercourse
is non-consensual . . . may be valid where the minor is a
younger child [but] does not hold true where the victim is an
older adolescent, who is able to engage in sexual intercourse
voluntarily, despite being legally incapable of consent.” Id. at
1051. We then examined a number of California cases clarify-
ing that § 261.5(c) criminalizes completely voluntary conduct
by two consenting parties. Id. at 1051-52. After taking all of
this into consideration, we held that because § 261.5(c) “in-
cludes consensual sexual intercourse between a twenty-one-
year-old and a minor one day shy of eighteen,” and because
“a minor of this age is ‘fully capable of freely and voluntarily
consenting’ ” there is no substantial risk that physical force
will be used in committing the offense. Id. at 1052-53. See
also Thomas, 159 F.3d at 299-300 (holding that statutory rape
between a 22-year-old male and a 17-year-old female is not
a “violent felony”).
Judge Posner, writing for the Seventh Circuit, has found
that although “a 13 year old is unlikely to appreciate fully or
be able to cope effectively with the disease risks and fertility
risks of intercourse and [is likely to have] a high risk preg-
nancy . . . ,” the government was unable to provide “any
studies or reasons that would support a conclusion that sex
between a 16 year old girl (perhaps, we said, a day short of
17) and a 22 year old man poses a potential risk of physical
injury to the girl.” Thomas, 159 F.3d at 299. See also Lopez-
Solis, 447 F.3d at 1208 (refusing to assume psychological
harm where the government failed to provide any evidence of
it). The Seventh Circuit acknowledged that “there is evidence
that a 16 year old girl is at greater risk of physical injury, in
ESTRADA-ESPINOZA v. MUKASEY 14769
the event that she becomes pregnant, than if she were older
. . . ,” as well as at greater risk of disease, but concluded that
“the risk of sex to 13 year old girls is much greater than the
risk to 16 year olds.” Thomas, 159 F.3d at 299, 300. The Sev-
enth Circuit based its reasoning in part on the fact that 45
states permit marriage at age 16 and that “[m]ore than 40 per-
cent of the 16 year old girls in our society have had sexual
intercourse.” Id. at 299. The same arguments apply with
greater force to the California statutory rape laws, which
criminalize sex acts with a male or female of age 17 as well.
In other words, while pregnancy and disease pose serious
risks of physical injury to people 15 and under, they do not
necessarily pose that same risk to the far more sophisticated
group of 17-year-old young women and men.
[6] In sum, Congress has defined the crime of “sexual
abuse of a minor,” and its definition is in accord with the con-
temporary meaning attached to the crime by a majority of the
states.
B
In opposing a generic federal definition based on the plain
words adopted by Congress, the government argues that when
Congress amended 8 U.S.C. § 1101(a)(43)(A) to include
“sexual abuse of a minor,” see Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, § 321(a)(1), Divi-
sion C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627,
it did not intend to refer to the federal criminal offense of
“sexual abuse of a minor.”
In support of its argument, the government notes that while
Congress has cross-referenced provisions of the federal code
to define other aggravated felonies, it did not cross-reference
any such provision when it added “sexual abuse of a minor.”
The fallacy of this argument is apparent upon a comprehen-
sive examination of the list of aggravated felonies. Section
1101(a)(43) includes 21 subsections, some of which cross-
14770 ESTRADA-ESPINOZA v. MUKASEY
reference other statutory provisions, and some of which do
not. Significantly, there is a clear distinguishing characteristic
between the aggravated felonies that are linked to other statu-
tory provisions and those that are not. Those that refer to a
broad category of offenses, using a potentially ambiguous
phrase, reference other statutory provisions for clarification.
On the other hand, those that refer to a specific crime which
is already clearly defined in criminal law have no need for a
cross-reference. Compare, e.g., 8 U.S.C. § 1101(a)(43)(B)
(“illicit trafficking in a controlled substance,” cross-
referencing 18 U.S.C. § 921) and 8 U.S.C. § 1101(a)(43)(F)
(“a crime of violence,” cross-referencing 18 U.S.C. § 16) with
8 U.S.C. § 1101(a)(43)(A) (“murder, rape,” no cross-
reference) and 8 U.S.C. § 1101(43)(G) (“a theft offense . . .
or burglary offense,” no cross-reference).
“Sexual abuse of a minor” falls into the latter category,
because it refers to a specific crime. As we have discussed,
“sexual abuse of a minor” is a federal criminal offense. See
18 U.S.C. § 2243. It is also a common title for offenses under
state criminal codes.4 In all cases, the offenses define what
4
See Alaska Stat. § 11.41.434 (“Sexual abuse of a minor”); Ariz. Rev.
Stat. Ann. § 13-1417 (“Continuous sexual abuse of a child”); Cal. Penal
Code § 288.5 (“Continuous sexual abuse of a child”); Del. Code Ann. tit.
11 § 778 (“Continuous sexual abuse of a child”); D.C. Code § 22-3009.01
(“sexual abuse of a minor”); Idaho Code Ann. § 18-1506 (“Sexual abuse
of a child”); 720 Ill. Comp. Stat. 150/5.1 (“Permitting sexual abuse of a
child”); Me. Rev. Stat. Ann. tit. 17-A, § 254 (“Sexual abuse of minors”);
Md. Code Ann., Criminal Law, § 3-602 (“Sexual abuse of a minor”);
Mass. Gen. Laws ch. 265, § 13L (“creating a risk of . . . sexual abuse to
a child”); Mont. Code Ann. § 45-5-625 (“Sexual abuse of children”); N.D.
Cent. Code § 12.1-20-03.1 (“Continuous sexual abuse of a child”); Okla.
Stat. tit. 21 § 51.1a (“sexual abuse of a child”); 18 PA. Stat. Ann. § 6312
(“Sexual abuse of children”); S.D. Codified Laws § 26-10-30 (“Permitting
. . . sexual abuse of a child”); Tex. Penal Code Ann. § 21.02 (“Continuous
Sexual Abuse of a Young Child or Children”); Utah Code Ann. § 76-5-
401.1 (“Sexual abuse of a minor”); Va. Code Ann. § 18.2-67.4:2 (“Sexual
abuse of a child”); Wash. Rev. Code § 9.68A.100 (“Commercial sexual
abuse of a minor”); Wyo. Stat. Ann. § 6-2-314 (“Sexual abuse of a
minor”); V.I. Code Ann. tit. 14, § 486 (“Knowledge of sexual abuse of a
minor”).
ESTRADA-ESPINOZA v. MUKASEY 14771
would, in more common parlance, be referred to as statutory
rape. Thus, like murder, rape, theft, and burglary—among
others—“sexual abuse of a minor” needs no cross-reference,
as the term already denotes a clearly defined criminal offense.
If Congress had intended the aggravated felony “sexual abuse
of a minor” to be defined differently than the criminal offense
“sexual abuse of a minor,” it could have provided a definition,
cross-referenced a different federal code provision, or even
specified that the definition was not limited to the criminal
definition. As we often observed, “Congress knows how to
define terms when it wants to give them specific definitions
at odds with everyday understanding.” United States v.
Young, 458 F.3d 998, 1007 (9th Cir. 2006). Because Congress
did not elect any of these options, the logical inference is that
Congress intended “sexual abuse of a minor” to carry its stan-
dard criminal definition, on par with “murder” or “rape.”
In short, the government’s argument is not supported by the
statutory text, and we must reject it.
C
The government also urges us to reject the congressional
definition of “sexual abuse of a minor” on the basis of Chev-
ron deference. See Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984). Of course, we
recognize that when interpreting a provision of the INA, we
accord Chevron deference to interpretations in published BIA
decisions within the BIA’s area of expertise. Garcia-Quintero
v. Gonzales, 455 F.3d 1006, 1014 (9th Cir. 2006);
Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006).
However, Chevron deference does not apply to the instant
case.
The government first urges that we accord Chevron defer-
ence to the one-judge, non-precedential, unpublished BIA
order in this case. However, Chevron deference does not
apply to unpublished, non-precedential BIA decisions.
14772 ESTRADA-ESPINOZA v. MUKASEY
Garcia-Quintero, 455 F.3d at 1014. As we noted in Garcia-
Quintero, 455 F.3d at 1013, under the relevant regulations,
only “selected decisions of the Board rendered by a three-
member panel or by the Board en banc may be designated to
serve as precedents.” 8 C.F.R. § 1003.1(g). A single-judge,
unpublished, non-precedential BIA decision does not satisfy
the standards established for Chevron deference by the
Supreme Court in United States v. Mead Corp., 533 U.S. 218,
226-27 (2001). Garcia-Quintero, 455 F.3d at 1012-13.5
Therefore, we must reject the government’s suggestion.6
The government next argues that we should accord Chev-
ron deference to the BIA’s decision in Rodriguez-Rodriguez,
in which the BIA described a “guide” to help identify offenses
which constitute “sexual abuse of a minor.” However, Chev-
ron deference does not apply in these circumstances because
Rodriguez-Rodriguez did not interpret a statute within the
meaning of Chevron, but only provided a “guide” for later inter-
pretation.7
5
Our sister circuits are in accord. See Cruz v. Attorney Gen. of U.S., 452
F.3d 240, 250 (3d Cir. 2006) (recognizing that unpublished BIA decisions
are not designated as precedential); Ajdin v. Bureau of Citizenship &
Immigration Servs., 437 F.3d 261, 264-65 (2d Cir. 2006) (per curiam)
(“[U]npublished opinions of the BIA have no precedential value.”); Ang
v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005) (“[A]n unpublished opinion
[issued by the Attorney General] . . . has no precedential force.”); Leal-
Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993) (“We will not bind
the BIA with a single non-precedential, unpublished decision any more
than we ourselves are bound by our own unpublished orders.”).
6
We further note that the BIA decision in this case did not comport with
the “guide” suggested by the BIA in Rodriguez-Rodriguez because it dis-
carded the requirement of “abuse.” See supra Part II.A.
7
Even if we were to apply the familiar Chevron analysis, we would nec-
essarily conclude, at step one, that the Rodriguez-Rodriguez guide does
not warrant Chevron deference. Under the Chevron framework, courts
employ a two-step test in reviewing administrative agency interpretations.
The first step is to determine congressional intent. If congressional intent
is clear, both the court and the agency must “give effect to the unambigu-
ously expressed intent of Congress.” Chevron, 467 U.S. at 843. Only if
Congress has not spoken clearly would we proceed to step two. When
Congress has spoken directly to the issue, as it has here, our inquiry is
over and Chevron deference does not apply. Id. at 842.
ESTRADA-ESPINOZA v. MUKASEY 14773
According Chevron deference to Rodriguez-Rodriguez
would be inappropriate because the BIA did not construe the
statute and provide a uniform definition in the decision.
Rather, it developed an advisory guideline for future case-by-
case interpretation. The Supreme Court has instructed that
“[i]nterpretations such as those in opinion letters—like inter-
pretations contained in policy statements, agency manuals,
and enforcement guidelines, all of which lack the force of law
—do not warrant Chevron-style deference.” Christensen v.
Harris County, 529 U.S. 576, 587 (2000). Although
Rodriguez-Rodriguez has the force of decisional law, its
“guide” for ascertaining the meaning of “sexual abuse of a
minor” suffers from the same imprecision that internal agency
guidelines possess. As the Seventh Circuit has noted, when
the BIA “hasn’t done anything to particularize the meaning”
of a term, “giving Chevron deference to its determination of
that meaning has no practical significance.” Mei v. Ashcroft,
393 F.3d 737, 739 (7th Cir. 2004).
This wisdom is particularly apt when courts are engaged in
a Taylor analysis of a prior conviction. The underlying theory
of Taylor is that a national definition of the elements of a
crime is required so as to permit uniform application of fed-
eral law in determining the federal effect of prior convictions.
Taylor, 495 U.S. at 590. A Taylor analysis requires a compar-
ison between the prior conviction and the nationally-
established generic elements of the offense at issue. Without
defined elements, a comparison of the state statute with the
federally-defined generic offense is not possible.8 In apparent
recognition of the problem of deferring to a guideline that
contemplates case-by-case variance, the government suggests
8
This problem is aptly illustrated by the tension between Lopez-Solis,
447 F.3d 1201, and Afridi, 442 F.3d 1212. In Afridi we held that California
Penal Code § 261.5(c) constitutes “sexual abuse in a minor,” whereas in
Lopez-Solis we held that a virtually identical Tennessee statute does not.
The Supreme Court in Taylor strove to prevent precisely such inconsisten-
cies. 495 U.S. at 590.
14774 ESTRADA-ESPINOZA v. MUKASEY
that the Rodriguez-Rodriguez guide was meant to embrace all
the varying state statutes that could conceivably encompass
the concept of “sexual abuse of a minor.” However, it was
just this approach that the Supreme Court rejected in Taylor.
See 495 U.S. at 590 (“It seems to us to be implausible that
Congress intended the meaning of “burglary” for purposes of
§ 924(e) to depend on the definition adopted by the State of
conviction.”).9 The Rodriguez-Rodriguez guide is simply not
the type of agency action to which Chevron deference would
apply.10
D
In sum, we conclude that when Congress added “sexual
abuse of a minor,” to the list of aggravated felonies in the
INA it meant “sexual abuse of a minor” as defined in the fed-
eral criminal code. The elements of the generic offense are
thus: (1) a mens rea level of knowingly; (2) a sexual act; (3)
with a minor between the ages of 12 and 16; and (4) an age
difference of at least four years between the defendant and the
minor.
9
See also Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119-20
(1983) (absent plain indication to the contrary, federal laws are not to be
construed so that their application is dependent on state law, “because the
application of federal legislation is nationwide and at times the federal
program would be impaired if state law were to control”); United States
v. Turley, 352 U.S. 407, 411 (1957) (“[I]n the absence of a plain indication
of an intent to incorporate diverse state laws into a federal criminal statute,
the meaning of the federal statute should not be dependent on state law”).
10
Because we conclude that Chevron deference does not apply to a mere
guideline, we need not reach Estrada-Espinoza’s argument that we ought
not defer to the BIA’s interpretation of a criminal offense, such as “sexual
abuse of a minor.” See, e.g., Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843
(9th Cir. 2003) (according no deference where the statute in question “is
not a statute which the BIA administers or has any particular expertise in
interpreting, no deference is accorded to the BIA’s interpretation.”).
ESTRADA-ESPINOZA v. MUKASEY 14775
III
Once we have determined the elements of the generic
offense, the next step in the Taylor analysis is to compare
those elements to the relevant state statute. Navarro-Lopez,
503 F.3d at 1070. The four California statutes of conviction
provide, in relevant part:
Any person who engages in an act of unlawful sex-
ual intercourse with a minor[11] who is more than
three years younger than the perpetrator is guilty of
either a misdemeanor or a felony, and shall be pun-
ished by imprisonment in a county jail not exceeding
one year, or by imprisonment in the state prison.
§ 261.5(c);
Except as provided in Section 288, any person who
participates in an act of sodomy with another person
who is under 18 years of age shall be punished by
imprisonment in the state prison, or in a county jail
for not more than one year.
§ 286(b)(1) (emphasis added);
Except as provided in Section 288, any person who
participates in an act of oral copulation with another
person who is under 18 years of age shall be pun-
ished by imprisonment in the state prison, or in a
county jail for a period of not more than one year.
§ 288a(b)(1) (emphasis added);
Except as provided in Section 288, any person who
participates in an act of sexual penetration with
11
“Minor” is defined, for the purposes of subsection (c), as a person
under the age of 18. See § 261.5(a).
14776 ESTRADA-ESPINOZA v. MUKASEY
another person who is under 18 years of age shall be
punished by imprisonment in the state prison or in
the county jail for a period of not more than one
year.
§ 289(h) (emphasis added).
[7] Three of these four statutes are missing the fourth ele-
ment of the generic statute: an age difference of at least four
years between the defendant and the minor. Only § 261.5(c)
requires a minimum age difference. However, because
§ 261.5(c) requires a difference of only three years and one
day, the statute is broader than the generic offense. Addition-
ally, because each statute applies to persons under 18 years of
age, all four statutes are broader than the generic offense with
respect to the third element—the age of the minor.12 Thus, the
conduct proscribed by each of the four statutes is broader than
the generic offense, and so none of the four statutes fall, cate-
gorically, within the generic definition.13 See Navarro-Lopez,
503 F.3d at 1068.
IV
[8] Given that the offenses of conviction do not categori-
cally qualify as “sexual abuse of a minor,” we next consider
whether the offenses may qualify under Taylor’s modified
categorical approach. As we held in Navarro-Lopez, the mod-
12
We note that all four statutes list separate offenses for sexual acts with
minors under the age of 16 by defendants over the age of 21. See Cal.
Penal Code §§ 261.5(d); 286(b)(2); 288a(b)(2); 289(i). The criminal com-
plaint against Estrada-Espinoza charged him only with the subsections
which prohibit sexual conduct with a minor under age 18 and did not
charge him with any of the subsections which prohibit conduct with a
minor under the age of 16 by a defendant over the age of 21.
13
The mens rea requirement for each of these offenses is not apparent
from the text of the statutes. Because we find each statute to be broader
than the generic statute with respect to other elements, we need not con-
sider whether the mens rea element is also broader.
ESTRADA-ESPINOZA v. MUKASEY 14777
ified categorical approach does not apply “[w]hen the crime
of conviction is missing an element of the generic crime alto-
gether, [because under such circumstances] we can never find
that ‘a jury was actually required to find all the elements of’
the generic crime.” Id. at 1073 (quoting Li v. Ashcroft, 389
F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring)).
[9] As we have discussed, three of the four California stat-
utes are missing the element of the generic crime which
requires a four-year age difference between the defendant and
the minor. Because a jury could not have been actually
required to find this element to convict Estrada-Espinoza
under §§ 286(b)(1), 288a(b)(1), or 289(h), we cannot apply
the modified categorical approach to conform Estrada-
Espinoza’s conviction under those three statutes to the generic
definition of “sexual abuse of a minor.”
[10] Section 261.5(c), however, is not missing an entire ele-
ment of the generic offense. We thus must more carefully
consider whether the modified categorical approach applies to
§ 261.5(c). We have previously explained that the modified
categorical approach is appropriate when the statute of con-
viction is divisible into several crimes, some of which fall
under the relevant category, and some of which do not. See
Carty v. Ashcroft, 395 F.3d. 1081, 1084 (9th Cir. 2005). In
this case, although § 261.5 as a whole is divisible into sepa-
rate crimes,14 subsection (c) defines only one singular crime:
“unlawful sexual intercourse with a minor [under the age of
18] who is more than three years younger than the perpetra-
tor,” § 261.5(c). The government does not allege that Estrada-
Espinoza was charged with, or convicted under, any subsec-
tion of § 261.5 other than subsection (c). Two documents are
available on the record to confirm the charges: the criminal
complaint and the judgment of conviction. Both documents
cite only § 261.5(c). Because § 261.5(c) applies to minors
under the age of 18 and defendants who are only three years
14
See supra note 7.
14778 ESTRADA-ESPINOZA v. MUKASEY
and one day older, it is not possible that “a jury was actually
required to find all the elements of” the generic offense,
Taylor, 495 U.S. at 602. As such, the modified categorical
approach cannot be used to conform Estrada-Espinoza’s con-
viction to the generic definition of “sexual abuse of a minor.”
V
In sum, we conclude that convictions under §§ 261.5(c),
286(b)(1), 288a(b)(1), or 289(h) do not categorically consti-
tute “sexual abuse of a minor.” 15 This conclusion becomes
even more apparent when we reconsider the facts of this case.
There is no suggestion of abuse in any form. The couple had
a relationship, approved by both parents, and lived together in
the home of the petitioner’s parents. They had a child
together, ultimately moved into a separate residence, and
Estrada-Espinoza worked to support this family. If they had
solemnized their relationship by marriage, no prosecution
would have been possible under § 261.5(c).
[11] The BIA erred in finding that Estrada-Espinoza’s con-
victions under California Penal Code §§ 261.5(c), 286(b)(1),
288a(b)(1), and 289(h) constituted the aggravated felony
“sexual abuse of a minor” within the meaning of 8 U.S.C.
§ 1101(a)(43). We grant the petition for review.
PETITION GRANTED.
15
In so holding we necessarily overrule Afridi v. Gonzales, 442 F.3d
1212 (9th Cir. 2006), which held that California Penal Code § 261.5(c)
categorically constitutes “sexual abuse of a minor.”