Velasco-Giron v. Holder
| Decision Date | 26 September 2014 |
| Docket Number | No. 12–2353.,12–2353. |
| Parties | Alberto VELASCO–GIRON, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Brian J. Murray, Jones Day, Chicago, IL, Rajeev Muttreja, Jones Day, New York, NY, for Petitioner.
Jennifer Jeanette Keeney, Oil, Department of Justice, Washington, DC, for Respondent.
Before POSNER, EASTERBROOK, and MANION, Circuit Judges.
A removable alien who has lived in the United States for seven years (including five as a permanent resident) is entitled to seek cancellation of removal unless he has committed an “aggravated felony.” 8 U.S.C. § 1229b(a)(3). Alberto Velasco–Giron, a citizen of Mexico who was admitted to the United States for permanent residence, became removable after multiple criminal convictions. An immigration judge, seconded by the Board of Immigration Appeals, concluded that one of these convictions is for “sexual abuse of a minor”, which 8 U.S.C. § 1101(a)(43)(A) classifies as an aggravated felony, and that Velasco–Giron therefore is ineligible even to be considered for cancellation of removal. In reaching that conclusion, the agency used as a guide the definition of “sexual abuse” in 18 U.S.C. § 3509(a)(8) rather than the one in 18 U.S.C. § 2243(a). See Matter of Rodriguez–Rodriguez, 22 I. & N. Dec. 991 (BIA 1999) (en banc); Matter of V–F–D, 23 I. & N. Dec. 859 (BIA 2006).
The conviction in question is for violating Cal.Penal Code § 261.5(c), which makes it a crime to engage in sexual intercourse with a person under the age of 18, if the defendant is at least three years older. The Board has held that this offense constitutes “sexual abuse of a minor”. Velasco–Giron was 18 at the time; the girl was 15; but the Board makes nothing of these ages, and it asks (so we too must ask) whether the crime is categorically “sexual abuse of a minor.” The Board's affirmative answer stems from § 3509(a)(8), which defines “sexual abuse” as “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children”. Elsewhere the Criminal Code defines a “minor” as a person under 18. See 18 U.S.C. §§ 2256(1), 2423(a).
The Board equates “child” with “minor”; Velasco–Giron does not argue otherwise. Instead he contends that the Board should use § 2243(a), which defines “sexual abuse of a minor” as engaging in a “sexual act” (a phrase that includes fondling as well as intercourse) with a person between the ages of 12 and 15, if the offender is at least four years older. The offense under Cal.Penal Code § 261.5(c) does not satisfy that definition categorically—and Velasco–Giron's acts don't satisfy it specifically (the age gap of 18 to 15 is three years).
If the Immigration and Nationality Act supplied its own definition of “sexual abuse of a minor,” ours would be an easy case. But it does not. That's why the Board had to choose, and the possibilities include § 3509(a)(8), § 2243(a), a few other sections in the Criminal Code, and a definition of the Board's invention. Section 1101(a)(43)(A) specifies that the category “aggravated felony” includes “murder, rape, or sexual abuse of a minor”. The Board noted in Rodriguez–Rodriguez that Congress could have written something like “murder, rape, or sexual abuse of a minor (as defined in section 2243 of title 18)” but did not do so—though other sections do designate specific federal statutes. See, e.g., 8 U.S.C. § 1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18)”. The Board stated that, because Congress chose to use a standard rather than a cross-reference, it would be inappropriate for the Board to adopt § 2243(a) as the sole definition; § 3509(a)(8) is more open-ended, which the Board saw as a better match given the legislative decision not to limit the definition by cross-reference.
A case such as Velasco–Giron's shows one reason why. The offense under Cal.Penal Code § 261.5(c) is a member of a set that used to be called “statutory rape”; it fits comfortably next to “rape” in § 1101(a)(43)(A); but adopting § 2243(a) as an exclusive definition would make that impossible. What's more, to adopt § 2243(a) as the only definition would be to eliminate the possibility that crimes against persons aged 11 and under, or 16 or 17, could be “sexual abuse of a minor.” (Recall that § 2243(a) deals only with victims aged 12 to 15.)
When resolving ambiguities in the Immigration and Nationality Act—and “sexual abuse of a minor” deserves the label “ambiguous”—the Board has the benefit of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), under which the judiciary must respect an agency's reasonable resolution. See, e.g., Scialabba v. Cuellar de Osorio, ––– U.S. ––––, 134 S.Ct. 2191, 2203, 189 L.Ed.2d 98 (2014); INS v. Aguirre–Aguirre, 526 U.S. 415, 424–25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). We have considered the Board's approach to “sexual abuse of a minor” five times, and each time we have held that Rodriguez–Rodriguez takes a reasonable approach to the issue. See Lara–Ruiz v. INS, 241 F.3d 934, 939–42 (7th Cir.2001); Guerrero–Perez v. INS, 242 F.3d 727, 735 n. 3 (7th Cir.2001) (); Espinoza–Franco v. Ashcroft, 394 F.3d 461 (7th Cir.2004); Gattem v. Gonzales, 412 F.3d 758, 762–66 (7th Cir.2005); Gaiskov v. Holder, 567 F.3d 832, 838 (7th Cir.2009).
Velasco–Giron maintains that sexual intercourse with a person under 18, by someone else at least three years older, is not “sexual abuse of a minor.” We could reach that conclusion, however, only if the Board exceeded its authority in Rodriguez–Rodriguez by looking to 18 U.S.C. § 3509(a)(8) as the starting point for understanding “sexual abuse” and to 18 U.S.C. §§ 2256(1), 2423(a) for the definition of a “minor” as a person under 18. Our five decisions holding that the approach of Rodriguez–Rodriguez is within the Board's discretion 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 conclusion 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 definition in § 2243(a), the Ninth Circuit rejected the Board's approach in Rodriguez–Rodriguez, , 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, however. 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 Congress omitted a statutory reference from § 1101(a)(43)(A) precisely in order to leave discretion for the agency.
The Ninth Circuit also concluded that Chevron is inapplicable 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, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), which holds that an opinion letter from an agency 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, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), which concluded that only regulations and administrative adjudications come within Chevron. Rodriguez–Rodriguez is an administrative adjudication with precedential 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 repeating 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 Estrada–Espinoza without overruling Lara–Ruiz and its four successors, for they hold that Rodriguez–Rodriguez is indeed entitled 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...
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