*1 Petitioner, VELASCO-GIRON, Alberto HOLDER, Attorney Jr.,
Eric H. States, the United
General of
Respondent.
No. 12-2353. Appeals, Court of
United States Circuit.
Seventh
Argued Nov. 2012. Sept.
Decided *2 conclusion,
al. In reaching that agen cy guide used the definition of “sexual § abuse” in 18 U.S.C. rather 2243(a). than the one in 18 U.S.C. See Rodriguez-Rodriguez, Matter 22 I. & (BIA 1999) (en banc); N. Dec. Matter (BIA of V-F-D, 2006). 23 I. & N. Dec. 859 The conviction in question is for violat- ing 261.5(c), Cal.Penal Code which makes it crime to engage sexual inter- a person course with the age if the defendant is at years least three older. The Board has held that this of- fense constitutes “sexual abuse of a mi- nor”. time; 18 at Velasco-Giron was 15; makes (so nothing ages, of these asks we ask) too must whether the crime is cate- Murray, Brian Day, Chicago, J. Jones gorically “sexual abuse a minor.” IL, Rajeev Muttreja, Day, Jones New Board’s affirmative stems answer from York, NY, for Petitioner. 3509(a)(8), which defines “sexual abuse” Oil, Keeney, Depart- Jennifer Jeanette use, employment, persuasion, as “the in- Justice, DC, ment Washington, for Re- ducement, enticement, or coercion' of a spondent. in, engage child or person assist another in, to engage sexually explicit conduct or POSNER, EASTERBROOK, Before molestation, the rape, prostitution, or oth- MANION, Judges. Circuit children, er form of sexual exploitation of EASTERBROOK, Judge. with children”. incest Elsewhere the Code per- A Criminal defines a “minor” as a removable alien has lived 2256(1), §§ years (including United States for seven son under 18. See 18 U.S.C. resident) 2423(a). permanent five as a is entitled to seek cancellation removal he has unless “minor”; equates The Board “child” felony.” “aggravated committed an argue Velasco-Giron does not otherwise. 1229b(a)(3). U.S.C. Alberto Velasco- Instead he contends that the Board should Giron, a Mexico admit- citizen of who was 2243(a), use which “sexual defines ted to the States permanent United of a minor” as in a “sexual engaging act” residence, multi- became removable after (a phrase fondling includes as well as ple criminal convictions. An intercourse) with a between the
judge, Immigra- seconded the Board of 15, if ages of 12 and the offender is at least tion Appeals, concluded that one of these four older. The offense under convictions “sexual a mi- is for abuse .of 261.5(c) satisfy Cal.Penal Code nor”, 1101(a)(43)(A) which 8 clas- categorically that definition Velasco- aggravated felony, sifies as an and that —and (the specifically don’t satisfy Giron’s acts ineligible Velasco-Giron therefore is even years). to be age gap considered cancellation of remov- of 18 to 15 is three Act abuse of a minor” deserves the Nationality “sexual Immigration If the Board has “ambiguous” label definition of its own supplied —the Inc. v. Natural easy case. of Chevron U.S.A. minor,” benefit ours Council, Inc., 467 Board had Resources U.S. why the not. That’s But it does Defense (1984), include 81 L.Ed.2d choose, the possibilities *3 judiciary respect sec- must an 2243(a), other under which 3509(a)(8), § a few § See, e.g., Code, agency’s a definition reasonable resolution. in the Criminal tions — Osorio, v. Cuellar de Section Scialabba U.S. Board’s invention. of -, 2203, 1101(a)(43)(A) category 2191, specifies that “murder, (2014); v. 526 Aguirre-Aguirre, INS U.S. felony” includes “aggravated 424-25, 1439, 415, 119 143 minor”. The abuse of a or sexual rape, (1999). that We have considered the in Rodriguez-Rodriguez noted of something approach “sexual abuse have Board’s to could written Congress times, time we “murder, minor” five and each have rape, or sexual abuse like (as Rodriguez-Rodriguez takes a in 2243 of title held that defined minor section 18)” approach sec- to the issue. See not do other reasonable but did so— INS, v. 939-42 specific statutes. Larar-Ruiz F.3d designate federal tions do INS, 1101(a)(43)(B): (7th Cir.2001); See, § “illicit Guerrero-Perez 8 U.S.C. e.g., Cir.2001) (also (as (7th 727, 735 242 F.3d n. 3 trafficking in controlled substance 21), that including conclusion accepting title in section defined (as in a state as a trafficking defined crime that classifies misde drug 18)”. 924(c) felony” may be an “aggravated meanor section title o that, purposes); Espinoza-Franc chose to use Congress because federal stated (7th Cir.2004); cross-reference, Ashcroft, 394 F.3d Gat rather than a a standard (7th Gonzales, to inappropriate for the Board tem v. 412 F.3d it would be 2243(a) Holder, definition; Cir.2005); § sole Gaiskov v. adopt (7th Cir.2009). 3509(a)(8) § is more which open-ended, given as a better match Board saw that maintains sexu Velasco-Giron the defini- decision not to limit legislative person al intercourse with a under tion cross-reference. older, else at someone least three is shows A case such Velasco-Giron’s a minor.” We could not “sexual why. under reason The offense however, conclusion, only if that reach 261.5(c) § a member of Code Cal.Penal in authority exceeded Rodri its “statutory rape”; that used to be called set by looking to 18 guez-Rodriguez U.S.C. comfortably “rape” in next to fits 3509(a)(8) starting point § un 2243(a) 1101(a)(43)(A); § adopting § derstanding and to “sexual abuse” make that definition would exclusive 2423(a) 2256(1), §§ for the defini more, adopt What’s to impossible. “minor” tion of a 2243(a) only as the definition holding ap -five decisions Our crimes possibility eliminate Rodriguez-Rodñgupz is within proach under, persons aged 11 and or 16 against the Board’s discretion foreclose Velasco- of a minor.” or could prepared arguments, unless we are Giron’s 2243(a) (Recall vic- with deals he asks us to overrule them all—which 15.) aged tims do. Estrada-Espi ambiguities principally He relies on resolving
When Mukasey, Cir. Nationality Act—and noza v. Immigration 2008) (en banc), adjudications which held administrative come within treating a violation of CaLPenal erred Chevron. Rodriguez-Rodriguez is an ad- 261.5(c) a minor.” abuse of Code as “sexual adjudication precedential ministrative con rada-Espinoza effect; Est reached this part Chevron’s domain. 261.5(c) satisfy clusion Second, the Ninth Circuit’s view Rod- 2248(a), which the definition riguez-Rodriguez did not a “rule” adopt victim and a requires a under the of 16 misunderstands what the Board did. four-year age justify adopt difference. To decided take definition in 2243(a), §in Ninth ing the definition 3509(a)(8) guide. as its The agency rejected approach the Board’s a regulation pointing could issued Rodriguez-Rodriguez, holding, 546 F.3d at repeating language its ver- Step 1157 n. Chev flunks One of batim, and it hard to imagine that a *4 say, agency ron —that is to an lacks discre court then precise would said “not tion if has made the decision and Congress 3509(a)(8) True, § enough.” open- itself is ambiguity agency left no for to resolve. the ended; the classify Board needs to circular, If the has That’s however. court time, statute at statutory state a and the only defi already proper decided that the language leaves room for debate about 2243(a), § nition from comes then particular whether a state crime is course there’s no discretion for the Board Yet many regulations out. statutes and to But phrase exercise. the adopt criteria that leave un- lots of cases of a minor” that the Board must adminis § certain. If good enough is to 1101(a)(43)(A), § ter in 8 appears Code, part why the United States 2243(a), 18 U.S.C. an agency adopt would be forbidden to its 1101(a)(43)(A) open-ended. is Precision approach? statute; is vital in criminal it is less events, allAt possible it would not be for important a civil statute such 1101(a)(43)(A), us to follow Estrada-Espinoza and the Board enti without overruling that Congress tled to find omitted a Lara-Ruiz and its four succes statu 1101(a)(43)(A) tory sors, pre they reference from for that Rodriguez-Rodri hold cisely in to discretion order leave is guez respect indeed entitled to agency. permissible Chevron and is a exercise of the Board’s discretion. Nor are we the
The Ninth Circuit also
that
concluded
only circuit
to reach that
conclusion.
inapplicable Rodriguez-Rod-
Chevron
to
v. Department
Oouch
Homeland Securi
riguez
adopted
stan-
(2d
119,
Cir.2011);
ty,
Mu
dard rather than a rule. We’ll come back
(2d
galli Ashcroft,
v.
258 F.3d
Cir.
this,
points
but for now
out.
two
stand
General,
2001);
Attorney
Restrepo
v.
First,
identify
the Ninth Circuit did not
(3d Cir.2010),
787, 796
all
617 F.3d
hold
any authority for
that
its view
Chevron
Rodriguez-Rodriguez
that
is entitled to
limited to rules.
cite
v.
did
Christensen
Ashcroft,
Chevron deference. Bahar v.
County,
Harris
529 U.S.
(11th Cir.2001),
also
(2000),
holds
which
accepts Rodriguez-Rodriguez,
an
opinion
agency
letter from
does
Chevron,
explicit
without
reliance on Chevron.
not come
dif-
within
that’s a
that,
Fifth Circuit
held
point.
precursor
ferent
is a
of Meanwhile the
has
Christensen
Corp.,
v.
as a matter of federal law under
Sen
United States Mead
533 U.S.
(2001),
Guidelines,
tencing
phrase
a “minor” in the
regulations
which concluded that
and “sexual abuse of minor” is
(unlike
Velasco-Giron,
States
Nor does
age of 18. United
under the
dissent)
(5th Cir.2013) (en
not contend that the Board
does
Rodriguez,
If did in Aguirre- what classified, state crime must be cannot Aguirre enough, was what did in Rodri how any decide state can conviction enough. guez-Rodriguez When requirement classified. That in- agency topics through chooses address Aguirre-Aguirre consistent with adjudication, may proceed incrementally; *6 (or impossible would send the Board on an every it need resolve variant not even variants) quest. several to order resolve one See, e.g., Corp.,
variant. v. Chenery SEC Immigration vague statutes are full of 194, 203, 1575, 332 U.S. 67 L.Ed. S.Ct. 91 words, vague such as “persecution,” and (1947); 1995 Ringer, Heckler v. 466 U.S. phrases such turpi- as “crime of moral 602, 617, 2013, S.Ct. 80 622 104 way tude.” The has not a to found (1984). This is “one of the earliest princi every interpretive problem solve these ples in American developed administrative phrases and has chosen the common-law Sebelius, 297, v. Almy law”. F.3d 303 approach. Judges have turn failed to tort (4th Cir.2012). rules; law into set of Holmes declared Many judges adju- dislike that they administrative The Common Law were bound they gen- eventually, dication because think standards to do so than more poorly years passed erated in fashion are have without goal being common-law give Perhaps theorized and too uncertain to ade- of a mi- nearer. “sexual abuse subject quate persons prove equally to will regula- notice to nor” intractable. held, Judge Friendly Judges require tion. once are not to the im- for these entitled others, they or think possible, reasons and NLRB must even the answer NLRB, FTC, SEC, replace adjudication Like the. rulemaking when best. general ap- many agency, of BIA wants to announce rules another is a NLRB, plication. judi- Aerospace policy-making Bell Co. v. institution as well 1101(a)(43)(A), minor,” and the standards as may choose cial one. It judge ruled the Califor- judges immigration do policies. Just best achievable of a nia to muddle misdemeanor was day, Board is entitled every categorical and therefore a bar minor” through. Im- of The Board of cancellation removal. is denied. petition The for review migration Appeals affirmed. POSNER, dissenting. Judge, minor”? is “sexual abuse of a So what obliged give some deference We are petitioner was ground The on which (he appearing of a term Board’s definition removal denied cancellation INS statutes. removable, of a deny that he was 424-25, Aguirre-Aguirre, 526 U.S. violating harassment and conviction for (1999); protection, order see U.S.C. Holder, (ii)) Arobelidze 1227(a)(2)(E)(i), had §§ was he (7th Cir.2011). has not But the Board in 2005 of in California been convicted True, defined “sexual abuse of minor.” girl with a engaging in intercourse sexual case, Rodri- quoting in this In re said than yet was 18 and was more N guez-Rodriguez, 22 I & Dec. years he. CaLPenal younger three than (BIA 1999) (en bane), has defined 261.5(c). in fact She was Code any encompassing it “as term —defined Immigration Ap- but the Board of he use, employment, offense that involves ‘the ages consider the either peals did not inducement, enticement, or persuasion, relationship. sexual relied party in, engage assist coercion of child to entirely on fact that the was under in, sexually ex- engage another more than three older. he molestation, rape, plicit conduct or the day could have been one short of her She exploi- prostitution, or other form sexual birthday day on the when the eighteenth children, chil- tation of or incest with began day relationship could ” dren.’ twenty-first birthday. his been punished as misdemeanor under was (ad- Rejecting very narrow definition to his uncon- according California law and “sex- by Rodriguez-Rodriguez) vocated only punishment his affidavit tradicted ual in the abuse of minor” elsewhere unsupervised probation. The crime was code, federal criminal see girl’s and the reported by the father defen- taken the Board in his case had pleaded guilty on his nineteenth dant from a provision definition verbatim *7 birthday; relationship the sexual had been the criminal code that the federal defines consensual; fact brief another rights of child victims as witnesses. ignored. the Board 3509(a)(8); see also 18 U.S.C. old, 3509(a)(9), explicit petitioner defining “sexually Now the has very broadly. literally, the Read the lived in States since conduct” the United the encompass petitioner’s 14 and a lawful resident. definition would permanent misdemeanor, in- judge obviously are he immigration said “there if extremely equities in this the to have sex with him. So strong some duced adopted the def- immigration pre- Rodriguez-Rodriguez case.” But the statute had 3509(a)(8), in section the Board cludes cancellation of removal of an alien inition (while “aggravated in it had present who has convicted of an the case said done been (for hadn’t), see, felony,” saying, in- also that it purpose) defined this we’ll “murder, minor” cluding rape, of a the of “sexual abuse of a or sexual abuse definition statute, immigration in the be within the the meaning immigration would of’ But I & Rodriguez-Rod- the end of this case.' statute. N Dec. at 996.
riguez gone say defining had on to that “in Rodríguez-Rodríguez So did not define minor,’ term of a we are ‘sexual abuse “sexual abuse of a in immigra minor” adopt a obliged not federal or state tion statute to encompass every criminal statutory provision” and “we are minor, activity sexual involving a as section adopting this statute as a definitive stan- 3509(a)(8) of the federal criminal code guide dard definition invoke it as a seems to do. it gave per Instead reasons types in identifying the crimes we would it, tinent in particular case before consider to abuse of minor.” be sexual severity of punishment meted out words, I In 22 & N Dee. at other court, concluding the state that the given Board found the definition useful petitioner’s particular criminal offense had the facts of the case Rodríguez-Rodríguez been enough designation serious to merit (which very are different from the facts of for purposes as sexual of a minor case), present but did not it as adopt present law. In the case the canonical definition “sexual abuse of similar, no gave reason for its a minor.” plausible, less conclusion. Given the lan guage quoted in this case from earli The Board in this case added decision, er thought couldn’t have “sexual,” meaning of derive the the words Rodríguez-Rodríguez adopted had “minor,” and “abuse” in the aggravated- text of section as the definition felony provision the immigration statute of “sexual abuse of a minor” in the immi it would look “ordinary, contempo to the gration statute. But if did think Rodrí rary, and meaning common of the words” that, guez-Rodríguez had done it was (and Espi for this it cited our decision wrong, was misapplying therefore Ashcroft, noza-Franco v. 394 F.3d precedent, and for that (among reason oth (7th Cir.2005), 464-65 United quoting ers) its decision could not stand. Huang Martinez-Carillo, States F.3d Mukasey, 534 F.3d Cir. (7th Cir.2001)). So neither Gonzales, 2008); Ssali v. nor in Rodríguez-Rodríguez case did the (7th Cir.2005); 564-66 Hernandez v. Ash adopt either the in the definition (9th Cir.2003). croft, federal criminal code or an alternative def Treating merely federal statute as inition. guide obliged the in this go case to beyond the definition of sexual abuse in In Rodríguez-Rodríguez specific of- code, the federal criminal and it failed to petitioner fense of which the had been that, the being do critical omission a fail “indecency convicted was with a child ure consider gravity peti law, exposure” in violation of Texas punishment tioner’s relation pointed the Board to “the of the severity punishment to the crime and Rodrí penalty” petitioner had received— guez-Rodríguez. *8 years’ statutory imprisonment, 10 max- “demonstrat[ing] (see, imum—as Texas Characteristically e.g., Benitez Ra- Holder, considers In the crime be serious.... 430 mos v. factors, Cir.2009); Miljkovic Ashcroft, consideration of these [the (7th Cir.2004)), exposure pres- found] that indecent in the the Justice De- partment remedy ence of a child one intent on sexual tries to the deficiencies clearly analysis by supplying is minor arousal sexual abuse of a of the Board’s rea- serious, it as classifying a misdemeanor to social science (including references sons data) him nominal sentence unsu- why petitioner’s giving offense a for grave; doing girl in so regarded pervised probation. Although as should be Chenery Immigration Appeals, flouts SEC av- Department the Board of 87 L.Ed. Corp., distinctions, U.S. making treats the of- erse to (1943). barely year a if it involved old fense as year an old having man sex with almost analysis inadequacy of The imagine a more trivial girl. It’s difficult to the correctness of the fatal if would not be thinks trivial. sexual offense. California (for questioned be could not conclusion Why Board think it serious? does the harmless). then the Board’s error for 21- believe that a How can if, example, for questioned It could not be sex year-old man have consensual aof vio- petitioner had been convicted day shy birthday a of her one 18th voluntary sexual inter- lent But rape. in unfit to remain 21-year-old renders year just-turned old course between a at Could least United States? we (the old year about-to-turn an explain why ask the Board to thinks opinion, for it premise of the Board’s de- grounds sex is minor misdemeanor offense facts of the consider the actual clined to prison If a misdemeanor) deportation? 10-year sen- illegal is petitioner’s judgment of tence informs the Board’s eight petitioner’s sentence to states. The involving a whether a sexual offense minor us probation should tell what unsupervised aggravated felony, as should be deemed California, eight, thinks Rodríguez-Rodríguez from we learn age The gravity of the of his offense. (34) does, unsupervised then a sentence of majority of the is 16 in a consent Columbia) probation judg- should inform the Board’s (including the District of states well, Code, yet Penal ment as it is not mentioned in the the Model well 213.3(l)(a). (The my opinion in this source of statistics Board’s case. Marriage Legal Age Consent immigra- is this case which the Nor States, http:// Sex for the 50 United provided analysis judge tion and the globaljusticeinitiative.flles.wordpress.com/ immigration judge Board relied on it. The 2011/12/united-states-age-of-eonsent-table provided analysis merely no said (visited 24, 2014), ll.pdf Sept. were by Rodríguez-Rodríguez she was bound opinion.) By other websites cited petitioner’s and that the conviction “consti- percent girls of American although tutes sexual abuse of minor and had sexual intercourse. Guttmacher Insti- misdemeanor, treated as under state law tute, Sheet, “American Teens’ Fact Sexual and in case its terms [Velasco-Giron’s] 2014), (May Health” Reproductive felony an aggravated constitutes under” www.guttmacher.org/pubs/FB-ATSRH. I’ve passage statute. The html. just implies that the quoted garbled, question The should ad- any has laid unlaw- down rule particular dressing gravity sexual minor, ful activity involving sexual how- minors, than involving offenses rather as- trivial, aggravated felony. ever is an them, trivial, suming any however has never laid down such a rule. perpetrator makes the unfit to be allowed opinion majority misreads Rodrí- in the States. Some are live United serious, guez-Rodríguez having adopted a rule Apparently some are trivial. Cali- this case. The same mis- petitioner’s governs fornia didn’t think the offense *9 Kawski, Clayton reading invalidates the decision P. Brain Patrick Keen- an, Lazar, this case. Maria S. Office of the Attorney
General, WI, Madison, for Defendant-Ap- pellant. H. Flynn, Department Justice,
Erin of DC, Washington, for Amicus Curiae. A judge requested active service question vote on the whether to rehear al., FRANK, appeal Ruthelle et Plaintiffs- en Judge banc. Chief WOOD Appellees, Judges POSNER, ROVNER, WILLIAMS, and HAMILTON voted in favor en rehearing proposal banc. The WALKER, rehear this case en banc therefore fails Scott Governor equally Wisconsin, al., divided court. et Defen dants-Appellants. This order ability does affect the any party to seek rehearing by panel League of United Latin American court, full or the Fed. R.App. see P. (LULAC) Wisconsin, Citizens nor does it affect the time available for al., Plaintiffs-Appellees, et filing petition, R.App. see Fed. P. 40. POSNER, Judge, joined by Judge Judges Chief WOOD and Circuit Deininger, Member, David G. Govern ROVNER, WILLIAMS, and Accountability Board, al., ment et HAMILTON, dissenting from denial of Defendants-Appellants. rehearing en banc. 14-2058, Nos. 14-2059. The Practitioner’s Ap- Handbook for peals to the Ap- United States Court Appeals, United States Court of peals (2014), the Seventh Circuit 161 Seventh Circuit. states that “en rehearing banc author- Oct. ized A party’s without invitation. mem- may
ber of the court ask for a vote on whether rehear case en banc.” I asked for a vote on to rehear whether Falls, Liu, Craig Angela G. M. A. Neil appeals judges these en banc. Steiner, LLP, DC, Washington, Dechert tie, voted, the vote a 5 to Rotker, Karyn Liberty American Civil Un- banc rehearing result en has been denied. Wisconsin, Milwaukee, WI, Ho, ion of Dale five to grant rehearing We^—the who voted Young, Sean American Civil Liberties Un- en banc—believe that decision allow ion, York, NY, Rosen, Jeremy New Na- opinion the panel’s (reported at 768 F.3d tional Center Law on Homelessness & (2014)) reversing the district court to Nadler, Poverty, Seepe Washington, Carl stand, without consideration of the case DC, Ulin, Ar- Angeles, John Charles Los court, the full ais serious mistake. Porter, Leigh nold & Chapman, M. Kath- Culliton-Gonzalez, Eichner, erine James The movement in a number of states Hair, Project, including Penda require Advancement Wash- Wisconsin to voters to DC, ington, Plaintiff-Appellee. prove eligibility by presenting photo