FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ANTONIO PELAYO-GARCIA,
Petitioner,
No. 05-70929
v. Agency No.
A090-975-343
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
Argued November 19, 2008
Submitted December 3, 2009
San Francisco, California
Filed December 14, 2009
Before: John T. Noonan, Andrew J. Kleinfeld and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
16441
16444 PELAYO-GARCIA v. HOLDER
COUNSEL
Lilia G. Alcaraz, the Martinez-Senftner Law Firm PC and
Gloria P. Martinez-Senftner (argued), the Martinez-Senftner
Law Firm PC, for the petitioner.
Peter D. Keisler, United States Department of Justice;
Michelle Gordon Latour, United States Department of Justice;
Jennifer J. Keeney, United States Department of Justice; and
Erica Miles (argued), United States Department of Justice, for
the respondent.
OPINION
IKUTA, Circuit Judge:
This case presents the question whether the offense of “un-
lawful sexual intercourse with a minor” under section
261.5(d) of the California Penal Code meets the definition of
“aggravated felony” in 8 U.S.C. § 1101(a)(43)(A), which
includes “sexual abuse of a minor.” We conclude it does not.
I
Luis Antonio Pelayo-Garcia, a native and citizen of Mex-
ico, petitions for review of a decision by the Board of Immi-
gration Appeals (BIA) affirming a final order of removal.
Pelayo entered the United States in 1985 without inspection.
In 1996, the Immigration and Naturalization Service (INS)
served him with an order to show cause that alleged he was
a deportable alien. Pelayo appeared before an immigration
judge (IJ) and conceded deportability. The IJ granted suspen-
PELAYO-GARCIA v. HOLDER 16445
sion of deportation on a conditional basis (as permitted under
the then-current version of 8 CFR § 240.21), and in Septem-
ber 1998 the IJ granted Pelayo suspension of deportation and
adjustment of status. After this order was issued, the govern-
ment discovered that in December 1997, Pelayo had been
convicted of the offense of unlawful sexual intercourse with
a minor under section 261.5(d) of the California Penal Code.
The government thereupon filed a motion to reopen, arguing
that Pelayo’s conviction constituted an aggravated felony for
purposes of 8 U.S.C. § 1101(a)(43)(A), which made Pelayo
removable and statutorily ineligible for suspension of deporta-
tion under 8 U.S.C. § 1227(a)(2)(A)(iii).
The IJ granted the government’s motion to reopen and held
additional hearings, at which Pelayo admitted that he had
been convicted under section 261.5(d), but denied that it con-
stituted an aggravated felony. Based on our then current case
law, the IJ concluded that the conviction under section
261.5(d) constituted an aggravated felony. Because of this
conviction, Pelayo could neither satisfy the good moral char-
acter requirements for suspension of deportation nor qualify
for voluntary departure. See 8 U.S.C. §§ 1101(f)(8),
1229c(a)(1). In March 2004, the IJ denied Pelayo’s applica-
tions for suspension of deportation and for voluntary depar-
ture, and ordered Pelayo removed to Mexico. The BIA
affirmed the IJ’s decision, citing Matter of Burbano, 20 I. &
N. Dec. 872, 874 (BIA 1994). Pelayo timely filed this petition
for review.
II
Because Pelayo was placed in deportation proceedings
before April 1, 1997, and a final order of deportation was
entered after October 30, 1996, the transitional rules under the
Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) are applicable to Pelayo’s petition for review.
Cardenas-Uriarte v. INS, 227 F.3d 1132, 1135 n.1 (9th Cir.
2000). Under the REAL ID Act of 2005, Pub. L. No. 109-13,
16446 PELAYO-GARCIA v. HOLDER
§ 106(d), 119 Stat. 231, 311 (2005) (codified as amended at
8 U.S.C. § 1252), the judicial review scheme in 8 U.S.C.
§ 1252 applies to cases governed by IIRIRA’s transitional
rules. See Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir.
2005). Accordingly, we have jurisdiction pursuant to 8 U.S.C.
§ 1252. Where, as here, the BIA cites Matter of Burbano and
does not express disagreement with any part of the IJ’s deci-
sion, the BIA adopts the IJ’s decision in its entirety. Figueroa
v. Mukasey, 543 F.3d 487, 491 (9th Cir. 2008). Under these
circumstances, we review the IJ’s decision as if it were the
decision of the BIA. Id. at 491. We review legal questions
addressed by the IJ de novo. Id.
III
Pelayo argues that his conviction for the offense of unlaw-
ful sexual intercourse in violation of California Penal Code
section 261.5(d) is not a conviction for “sexual abuse of a
minor,” and therefore is not an aggravated felony under 8
U.S.C. § 1101(a)(43)(A). We analyze this issue using the cat-
egorical and modified categorical approach set forth in Taylor
v. United States, 495 U.S. 575, 600-02 (1990) and Shepard v.
United States, 544 U.S. 13, 20-21 (2005). See Renteria-
Morales v. Mukasey, 551 F.3d 1076, 1081-82 (9th Cir. 2008).
[1] “Under the categorical approach, we ‘compare the ele-
ments of the statute of conviction with a federal definition of
the crime to determine whether conduct proscribed by the
statute is broader than the generic federal definition.’ ” Cerezo
v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008) (quoting
Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.
2007)). Here, we must first identify the elements of the
generic federal crime of “sexual abuse of a minor” under
§ 1101(a)(43)(A). See id. We have set out two different
generic federal definitions of “sexual abuse of a minor.” See
United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir.
2009); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152
(9th Cir. 2008) (en banc).
PELAYO-GARCIA v. HOLDER 16447
First, in Estrada-Espinoza, we explained that for purposes
of § 1101(a)(43)(A), “Congress has enumerated the elements
of the offense of ‘sexual abuse of a minor’ at 18 U.S.C.
§ 2243.” 596 F.3d at 1152. Section 2243 states, in pertinent
part:
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.
18 U.S.C. § 2243(a). The mens rea of “knowingly” in
§ 2243(a) is limited by 18 U.S.C. § 2243(d), which states: “In
a prosecution under [§ 2243(a)], the Government need not
prove that the defendant knew—(1) the age of the other per-
son engaging in the sexual act; or (2) that the requisite age
difference existed between the persons so engaging.” Id.
§ 2243(d). Because the mens rea requirement of “knowingly”
does not apply to knowledge of the victim’s age, or the age
difference between the defendant and the victim, it can apply
only to the defendant’s act of engaging in a sexual act. Cf.
United States v. Jennings, 496 F.3d 344, 355 (4th Cir. 2007)
(holding that 18 U.S.C. § 2244(a) “required the government
to prove, as an element of the offense, that [the defendant]
knowingly engaged in or caused sexual contact with [the vic-
tim.]” (internal quotation marks and alterations omitted)).
Although § 2243(a) does not spell out the situations in which
a person might fail to meet this mens rea requirement, pre-
sumably a jury could find that a defendant who was extremely
intoxicated or otherwise incapacitated did not knowingly
engage in a sexual act. Accordingly, under Estrada-Espinoza,
546 F.3d at 1152, a statute of conviction qualifies as the
generic offense of “sexual abuse of a minor” if it includes the
16448 PELAYO-GARCIA v. HOLDER
following elements: (1) a mens rea of “knowingly” (as to
engaging in the act); (2) a sexual act (3) with a minor who is
at least 12 but not yet 16 years of age; and (4) an age differ-
ence of at least four years between the defendant and the
minor.
[2] Medina-Villa subsequently distinguished Estrada-
Espinoza on the ground that § 2243 “encompassed statutory
rape crimes only,” and therefore was not the only federal
generic definition of “sexual abuse of a minor.” 567 F.3d at
515; see also id. at 515 (Ҥ 2243 was intended by Estrada-
Espinoza to define only statutory rape crimes.”). Statutory
rape crimes are “sexual offenses involving older as well as
younger adolescents, not crimes prohibiting conduct harmful
to younger children specifically[.]” Id. This category of sexual
offenses does not include “physical or psychological harm” to
a child. Id. at 513-14.
Under Medina-Villa, a crime may also qualify as the fed-
eral generic offense of “sexual abuse of a minor” if it meets
the definition set forth in United States v. Baron-Medina, 187
F.3d 1144, 1147 (9th Cir. 1999) and other cases preceding
Estrada-Espinoza.1 See Medina-Villa, 567 F.3d at 515
(“[g]iven that our holding [in Estrada-Espinoza] was intended
to define statutory rape laws only, Estrada-Espinoza in no
way undermines our prior conclusion that ‘[t]he use of young
children for the gratification of sexual desires constitutes
abuse.’ ”). Specifically, a crime that is not a statutory rape
crime under Estrada-Espinoza may qualify as the federal
generic offense of “sexual abuse of a minor” if: (1) the con-
1
Although Medina-Villa considered the definition of “sexual abuse of a
minor” in the context of criminal sentencing, “decisional law defining the
term ‘sexual abuse of a minor’ in the sentencing context . . . is informed
by the definition of the same term in the immigration context . . . and vice
versa.” Medina-Villa, 567 F.3d at 511-12; see United States v. Medina-
Maella, 351 F.3d 944, 947 (9th Cir. 2003) (relying in the context of crimi-
nal sentencing upon cases defining “sexual abuse of a minor” in 8 U.S.C.
§ 1101(a)(43)(a)).
PELAYO-GARCIA v. HOLDER 16449
duct prohibited by the criminal statute is sexual, (2) the statute
protects a minor, and (3) the statute requires abuse. Id. at 513
(internal quotation omitted). A criminal statute includes the
element of “abuse” if it expressly prohibits conduct that
causes “physical or psychological harm in light of the age of
the victim in question.” Id. at 513. Sexual conduct involving
younger children is per se abusive. Id.
After determining the elements of the generic federal crime
of sexual abuse of a minor, the next step in the categorical
approach is to identify the elements of the specific crime of
conviction, Cerezo, 512 F.3d at 1166, which in this case is
section 261.5(d) of the California Penal Code. This section
provides: “Any person 21 years of age or older who engages
in an act of unlawful sexual intercourse with a minor who is
under 16 years of age is guilty of either a misdemeanor or a
felony, and shall be punished by imprisonment in a county jail
not exceeding one year, or by imprisonment in the state prison
for two, three, or four years.” Cal. Penal Code § 261.5(d). The
statute defines the term “unlawful sexual intercourse” as “an
act of sexual intercourse accomplished with a person who is
not the spouse of the perpetrator, if the person is a minor.” Id.
§ 261.5(a).
[3] On its face, section 261.5(d) contains the following ele-
ments: (1) sexual intercourse with another person; (2) the
defendant was at least 21 years of age at the time of inter-
course; and (3) the other person was under the age of 16 years
at the time of intercourse. The statute does not expressly
include a scienter requirement, and we have concluded that
section “261.5(d) is a strict liability crime that does not
require any showing of scienter.” Quintero-Salazar, 506 F.3d
at 694.
[4] We next consider whether section 261.5(d) criminalizes
the same conduct as the federal generic crime. Starting with
Estrada-Espinoza, and comparing the elements of section
261.5(d) with the elements of § 2243, we conclude that sec-
16450 PELAYO-GARCIA v. HOLDER
tion 261.5(d) criminalizes a broader range of conduct than
§ 2243 because a defendant could be convicted under section
261.5(d) even if the government failed to prove beyond a rea-
sonable doubt that the defendant “knowingly” engaged in a
sexual act. “If the statute of conviction criminalizes conduct
that would not satisfy the federal definition of the crime at
issue, then the conviction does not qualify as a predicate
offense under the categorical approach.” Id. at 692. Accord-
ingly, we conclude that section 261.5(d) is not categorically
an aggravated felony under Estrada-Espinoza.
[5] The government argues that People v. Hernandez, 393
P.2d 673, 677 (Cal. 1964), requires the conclusion that section
261.5(d) contains a scienter element that is equivalent to the
scienter element in § 2243. Even if we could depart from
Quintero-Salazar’s ruling that section 261.5(d) lacks a
scienter element, we would disagree. Hernandez held that a
defendant charged with statutory rape under section 261 of
the California Penal Code could present evidence of a good
faith belief that the victim was over the age of consent. Her-
nandez, 393 P.2d at 678. We have previously noted that under
the rule enunciated in Hernandez, a defendant may raise a
limited mistake-of-age defense to a conviction under section
261.5(d): “Under California case law, a reasonable belief that
the victim was eighteen or older, the age of consent estab-
lished by Cal. Penal Code § 261.5(a), is a defense, but a rea-
sonable belief that the victim was sixteen, the age under
which the most severe punishment attaches to the offense pur-
suant to Cal. Penal Code § 261.5(d), is no defense.” United
States v. Gomez-Mendez, 486 F.3d 599, 603-04 (9th Cir.
2007) (internal citations and emphases omitted). Contrary to
the government’s argument, however, the availability of a
mistake-of-age defense is not equivalent to the requirement
that the government prove that the defendant had the requisite
state of mind. See id. at 604 (differentiating between elements
and defenses); see also United States v. Davenport, 519 F.3d
940, 945 (9th Cir. 2008) (agreeing with the Second Circuit
that “we have never conflated an affirmative defense as the
PELAYO-GARCIA v. HOLDER 16451
functional equivalent of an element of an offense”). There-
fore, the existence of this defense does not add a scienter ele-
ment to section 261.5(d). But even if it did so, the scienter
required for a mistake-of-age defense is not the same as the
scienter element in § 2243. The government might rebut a
mistake-of-age defense by proving that the defendant knew or
should have known the age of the minor involved in the
offense; this is not the same as proving (under § 2243) that the
defendant knowingly engaged in the act of sexual intercourse.
Therefore, section 261.5(d) does not require proof of the
scienter element in § 2243.
[6] We next turn to Medina-Villa, and compare the ele-
ments of section 261.5(d) with the elements of the federal
generic crime of “sexual abuse of a minor” as defined in that
case. Section 261.5(d) contains two of the elements identified
in Medina-Villa, in that it (1) prohibits sexual intercourse with
(2) a minor. But section 261.5(d) criminalizes a broader range
of conduct than the crime delineated in Medina-Villa because
a defendant could be convicted under section 261.5(d) even
if the government failed to prove beyond a reasonable doubt
that the defendant’s conduct constituted “abuse.” Section
261.5(d) does not expressly include physical or psychological
abuse of a minor as an element of the crime. Nor can we hold
that section 261.5(d) criminalizes only conduct that is per se
abusive, because it is not limited to conduct targeting younger
children. See Medina-Villa, 567 F.3d at 514 (holding that
§ 2243, which prohibits sexual conduct with minors who are
not yet 16, criminalizes conduct that is not necessarily abu-
sive); see also United States v. Baza-Martinez, 464 F.3d 1010,
1012 (9th Cir. 2006) (holding that a statute criminalizing sex-
ual conduct with a minor under sixteen “prohibits conduct
that is not necessarily physically or psychologically harmful,
and therefore, is not necessarily ‘abuse.’ ”), cited with
approval by Medina-Villa, 567 F.3d at 513. Accordingly, we
conclude that section 261.5(d) is not categorically “sexual
abuse of a minor” as defined in Medina-Villa.
16452 PELAYO-GARCIA v. HOLDER
[7] Relying on Medina-Villa’s statement that there is “a
significant difference” between a victim “under 16” and a vic-
tim “between the ages of 16 and 18,” 567 F.3d at 514 (quoting
Estrada-Espinoza, 546 F.3d at 1154), the government argues
that section 261.5(d) does meet the definition of sexual abuse
of a minor in Medina-Villa because it applies to minors under
the age of 16. When the quoted language is read in context,
however, it does not assist the government. Estrada-Espinoza
stated that “we acknowledged [in Valencia v. Gonzales, 439
F.3d 1046 (9th Cir. 2006)] a significant difference between
sexual relations with someone under 16 and sexual relations
with someone between the ages of 16 and 18,” to support its
determination that sexual conduct with older minors is not
necessarily abusive. Estrada-Espinoza, 546 F.3d at 1154-55;
see Valencia, 439 F.3d at 1053 (holding that a state statute
proscribing sexual conduct with a minor who could be one
day shy of 18 was not categorically a crime of violence).
Medina-Villa then used the same quotation to support the
complementary insight: that sexual relations with younger
children are significantly different than sexual relations with
teenagers. 567 F.3d at 514. But neither Medina-Villa nor
Estrada-Espinoza enunciated a rule that sexual conduct with
a minor a day shy of 16 is per se abusive, and indeed such a
holding would be contrary to the conclusion in Medina-Villa
that the conduct criminalized by § 2243 includes non-abusive
conduct. See id.
[8] Because section 261.5(d) does not include the relevant
scienter requirement of § 2243, and criminalizes sexual con-
duct that is not necessarily abusive, we conclude that section
261.5(d) does not qualify as the generic federal crime of “sex-
ual abuse of a minor,” and therefore is not categorically an
aggravated felony under § 1101(a)(43)(A).
If the specific crime of conviction “does not categorically
qualify as a predicate offense under a federal statute, it still
may qualify under a modified categorical analysis.” Quintero-
Salazar, 506 F.3d at 694. Under the modified categorical
PELAYO-GARCIA v. HOLDER 16453
approach, we examine specified judicial records to determine
whether a defendant was necessarily convicted of the ele-
ments of the federal generic crime.
See Shepard v. United States, 544 U.S. 13, 20-21 (2005).
Here, the government has not asked this court to undertake a
modified categorical analysis, nor could it do so, given that
the record contains only two documents of conviction (a fel-
ony complaint and the clerk’s order of probation) neither of
which indicates the age of the victim or establishes that
Pelayo was convicted of a crime involving sexual conduct
with a younger child. See generally id. at 26 (holding that we
are permitted to conduct a limited examination of documents
in the record of conviction, specifically “the terms of the
charging document, the terms of a plea agreement or tran-
script of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or
to some comparable judicial record of this information”).
IV
[9] Because Pelayo’s conviction for unlawful sexual inter-
course in violation of section 261.5(d) of the California Penal
Code does not qualify as the federal generic crime of “sexual
abuse of a minor,” it is not an aggravated felony under 8
U.S.C. § 1101(a)(43)(A). Therefore, the IJ and BIA erred in
concluding that Pelayo was deportable due to his prior con-
viction.
PETITION FOR REVIEW GRANTED.