Alberto Velasco-Giron v. Eric Holder, Jr.
773 F.3d 774
7th Cir.2014Background
- Velasco-Giron, a Mexican citizen, is a lawful permanent resident who has lived in the U.S. for seven years and seeks cancellation of removal unless barred by an aggravated felony.
- The Board concluded Velasco-Giron’s Cal. Penal Code § 261.5(c) conviction (sexual intercourse with a person under 18 when offender is at least three years older) qualifies as sexual abuse of a minor and thus an aggravated felony.
- The Board used 18 U.S.C. § 3509(a)(8) as a guide to define sexual abuse of a minor, rather than the definition in 18 U.S.C. § 2243(a).
- Velasco-Giron contends the offense does not categorically fit § 2243(a)’s definition and that the age gap (18 vs 15) does not meet § 2243(a)’s 4-year requirement.
- The issue is framed as an ambiguity in the Immigration and Nationality Act, with the Board relying on Rodriguez-Rodriguez for Chevron deference.
- The court denies the petition for review, upholding the Board’s approach and its interpretation under Chevron.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sexual abuse of a minor can be defined via Chevron-guided open-ended standards | Velasco-Giron argues Rodriguez-Rodriguez should not be deferred to or treated as controlling authority. | Velasco-Giron contends the Board’s open-ended approach is permissible under Chevron and Rodriguez-Rodriguez. | Chevron deference applied; Rodriguez-Rodriguez reasonable. |
| Whether Cal.Penal Code § 261.5(c) fits the 'sexual abuse of a minor' definition for immigration purposes | Velasco-Giron contends the offense does not categorically meet § 2243(a) or the immigration statute’s broad sense. | Board treated the offense as sexual abuse of a minor under the open-ended guide in § 3509(a)(8). | Board’s classification upheld under Rodriguez-Rodriguez guidance. |
| Whether the lower-court decisions construe 'sexual abuse of a minor' consistently with Chevron | Estrada-Espinoza and related cases constrain Chevron applicability to standards, not rules. | Rodriguez-Rodriguez and Aguirre-Aguirre support Chevron deference to agency-adjudicative standards. | Chevron deference sustained; Rodriguez-Rodriguez respected. |
| Whether the Board’s reliance on one-off adjudicative determinations risks inconsistency | Velasco-Giron argues the Board cannot resolve all ambiguities case-by-case without overruling precedents. | Agency may select standards incrementally in adjudication without issuing rulemaking. | Agency may adjudicate gradually; no need for complete rules to define 'sexual abuse of a minor'. |
Key Cases Cited
- Rodriguez-Rodriguez, 22 I.& N. Dec. 991 (BIA 1999) (defined 'sexual abuse of a minor' as a guide, not exclusive definition)
- V-F-D, 23 I. & N. Dec. 859 (BIA 2006) (basis for board’s use of open-ended guide to sexual abuse of a minor)
- Larar-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001) (acceptance of Rodriguez-Rodriguez approach)
- Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001) (admission that a state misdemeanor may be an aggravated felony)
- Espinoza-Franco v. Ashcroft, 394 F.3d 461 (7th Cir. 2005) (context for definitions of 'sexual abuse of a minor')
- Aguirre-Aguirre, 526 U.S. 415 (1999) (Chevron deference to agency interpretations; asylum context)
- Chevron U.S.A. Inc. v. N.R.D.C., 467 U.S. 837 (1984) (foundation for deference to agency interpretations)