AGUILAR-BARAJAS

Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
Matter of Jose AGUILAR-BARAJAS, Respondent
Decided July 30, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee
Code Annotated is categorically a “crime of child abuse” within the meaning of section
237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i)
(2018).
(2) The Supreme Court’s holding that a statutory rape offense does not qualify as “sexual
abuse of a minor” based solely on the age of the participants, unless it involves a victim
under 16, does not affect our definition of a “crime of child abuse” in Matter of
Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the
respondent’s statutory rape offense falls within this definition. Esquivel-Quintana
v. Sessions, 137 S. Ct. 1562 (2017), distinguished.
FOR RESPONDENT: Sean Lewis, Esquire, Nashville, Tennessee
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate
Legal Advisor
BEFORE: Board Panel: HUNSUCKER, Appellate Immigration Judge; NOFERI,
Temporary Appellate Immigration Judge. Concurring and Dissenting Opinion: PETTY,
Appellate Immigration Judge.
HUNSUCKER, Appellate Immigration Judge:
The Department of Homeland Security (“DHS”) has appealed from the
Immigration Judge’s November 13, 2019, decision terminating the
respondent’s removal proceedings. The respondent has filed an opposing
brief. 1 The appeal will be sustained, the proceedings will be reinstated, and
the record will be remanded.
The respondent is a native and citizen of Mexico who was admitted to the
United States as a lawful permanent resident in 2000. On April 29, 2019, he
1
We requested and received supplemental briefing from the parties addressing whether
the respondent’s conviction for aggravated statutory rape in violation of Tennessee law is
a conviction for a “crime of child abuse” under section 237(a)(2)(E)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018). We further asked the parties to
address the impact, if any, of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), on
the respondent’s removability.
354
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
was convicted of two counts of aggravated statutory rape in violation of
section 39-13-506(c) of the Tennessee Code Annotated. Based on this
conviction, the DHS placed him in removal proceedings and charged him
with removability under section 237(a)(2)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018), as a noncitizen
convicted of a “crime of child abuse, child neglect, or child abandonment.” 2
The respondent denied the charge of removability, and the Immigration
Judge terminated proceedings after concluding that his offense was not
a “crime of child abuse, child neglect, or child endangerment” under the Act.
The DHS challenges this determination on appeal. Whether the respondent’s
conviction is for a “crime of child abuse, child neglect, or child
endangerment” under the Act is a question of law that we review de novo.
See 8 C.F.R. § 1003.1(d)(3)(ii) (2020).
We have interpreted the term “crime of child abuse, child neglect, or child
abandonment” in section 237(a)(2)(E)(i) of the Act broadly and defined it as
any offense involving an intentional, knowing, reckless, or criminally negligent act
or omission that constitutes maltreatment of a child or that impairs a child’s physical
or mental well-being, including sexual abuse or exploitation. At a minimum, this
definition encompasses convictions for offenses involving the infliction on a child
of physical harm, even if slight; mental or emotional harm, including acts injurious
to morals; sexual abuse, including direct acts of sexual contact, but also including
acts that induce (or omissions that permit) a child to engage in prostitution,
pornography, or other sexually explicit conduct; as well as any act that involves the
use or exploitation of a child as an object of sexual gratification or as a tool in the
commission of serious crimes, such as drug trafficking.
Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008); see also
Matter of Soram, 25 I&N Dec. 378, 381 (BIA 2010) (clarifying that “the
phrase ‘a crime of child abuse, child neglect, or child abandonment’ in
section 237(a)(2)(E)(i) of the Act denotes a unitary concept and that our
broad definition of child abuse [in Velazquez-Herrera] describes the entire
phrase”). 3 In Matter of Soram, we further clarified that the phrase “crime of
child abuse” includes endangerment-type offenses that pose a threat to the
life or health of a child, regardless of whether there is actual harm or injury
to a child. 25 I&N Dec. at 381–83; see also Matter of Mendoza Osorio, 26
2
The DHS also charged the respondent with removability under section 237(a)(2)(A)(ii)
of the Act, as a noncitizen convicted of two or more crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct. However, the DHS does not
challenge the Immigration Judge’s conclusion that the respondent is not removable under
this provision. See Matter of A-C-A-A-, 28 I&N Dec. 351, 352–53 (A.G. 2021) (providing
that we may rely on the DHS’s decision not to contest certain issues on appeal).
3
For brevity, hereinafter we will use the phrase “crime of child abuse” to refer to the
definition of a “crime of child abuse, child neglect, or child endangerment.”
355
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
I&N Dec. 703, 706, 711–12 (BIA 2016) (concluding that endangering the
welfare of a child under New York Law, which requires knowingly acting in
a manner likely to be injurious to a child, is a “crime of child abuse” under
the Act). For purposes of section 237(a)(2)(E)(i), a “child” is “an individual
who ha[s] not yet reached the age of 18 years.” Matter of Velazquez-Herrera,
24 I&N Dec. at 512.
The statute under which the respondent was convicted defines aggravated
statutory rape as “the unlawful sexual penetration of a victim by the
defendant, or of the defendant by the victim when the victim is at least
thirteen (13) but less than eighteen (18) years of age and the defendant is at
least ten (10) years older than the victim.” Tenn. Code Ann. § 39-13-506(c)
(West 2019); see also Tenn. Code. Ann. § 39-13-501(7) (defining “sexual
penetration” for purposes of section 39-13-506(c) as “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight,
of any part of a person’s body or of any object into the genital or anal
openings of the victim’s, the defendant’s, or any other person’s body, but
emission of semen is not required”).
To determine whether the respondent’s offense is a “crime of child abuse”
under the Act, we employ the categorical approach, under which we
disregard his actual conduct and focus instead on the elements of section
39-13-506(c) and the minimum conduct that has a realistic probability of
being prosecuted under the statute. Matter of Mendoza Osorio, 26 I&N Dec.
at 705–06; Matter of Velazquez-Herrera, 24 I&N Dec. at 513–15. The
minimum conduct criminalized under section 39-13-506(c) is sexual
penetration between a victim who is 17 years old and a perpetrator who is 27
years old.
The respondent asserts that we must incorporate the Supreme Court’s
articulation in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), of
what constitutes aggravated felony “sexual abuse of a minor” under section
101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2018), into the
definition of “crime of child abuse” under section 237(a)(2)(E)(i) of the Act.
In that case, the Court held that “in the context of statutory rape offenses
focused solely on the age of the participants, the generic federal definition of
‘sexual abuse of a minor’ under [section 101(a)(43)(A)] requires the age of
the victim to be less than 16.” Id. at 1572–73. Applying Esquivel-Quintana,
the respondent argues that his statutory rape offense is not a “crime of child
abuse” under the Act because it reaches crimes against victims who are 16
and 17 years old.
However, in Esquivel-Quintana, 137 S. Ct. at 1567, the Supreme Court
addressed a narrow question, namely, “whether a conviction under a state
statute criminalizing consensual sexual intercourse between a 21-year-old
and a 17-year-old qualifies as sexual abuse of a minor under” section
356
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
101(a)(43)(A) of the Act. The Court found it highly significant that the
phrase “sexual abuse of a minor” appears in the “aggravated felony”
definition and “in the same subparagraph as ‘murder’ and ‘rape[]’—among
the most heinous crimes [the Act] defines as aggravated felonies.” Id.
at 1570 (emphasis added) (citations omitted). The Court reasoned that this
“structure” of section 101(a)(43)(A) of the Act supports the conclusion that
Congress intended the phrase “sexual abuse of a minor” to “encompass[]
only especially egregious felonies.” Id. The Court concluded that “for
a statutory rape offense to qualify as sexual abuse of a minor under the [Act]
based solely on the age of the participants, the victim must be younger than
16.” Id. Notably, the Court left open the possibility that “sexual abuse of
a minor” could cover offenses involving a “special relationship of trust,”
where both participants were over the age of 16 and engaging in consensual
sexual activity. Id. at 1572.
We do not assume that the Court would lightly extend its narrow holding
regarding “sexual abuse of a minor” to the distinct statutory phrase “crime of
child abuse” under section 237(a)(2)(E)(i), which is not an aggravated felony
and does not have the same structure as section 101(a)(43)(A) of the Act.
See, e.g., Matthews v. Barr, 927 F.3d 606, 616 (2d Cir. 2019)
(acknowledging that the “holding in Esquivel-Quintana was narrow and its
decision did not relate to the [Act’s] crime of child abuse provision”);
Mondragon-Gonzalez v. Att’y Gen. of the U.S., 884 F.3d 155, 160 (3d Cir.
2018) (holding that “Esquivel-Quintana has no application . . . at all” to the
definition of a “crime of child abuse” under section 237(a)(2)(E)(i)).
Moreover, as noted, the narrow holding of Esquivel-Quintana declined to
conclusively resolve whether consensual sexual activity between persons
ages 16 and older who are in a special relationship of trust can be classified
as “sexual abuse of a minor.”
Significantly, the United States Court of Appeals for the Fifth Circuit, in
whose jurisdiction this case arises, has concluded that “Esquivel-Quintana
has no application” to whether a State offense qualifies as a “crime of child
abuse” under the Act because the “Court’s narrow holding didn’t relate to
the child-abuse provision in [section 237(a)(2)(E)(i)], mandate a particular
approach to statutory interpretation, or cast doubt on the Board’s definition
of child abuse.” Garcia v. Barr, 969 F.3d 129, 134 (5th Cir. 2020); see also
Adeeko v. Garland, No. 19-60703, 2021 WL 2709353, at *2–3 (5th Cir.
July 1, 2021) (concluding that Garcia controls in the context of a “crime of
child abuse” and upholding the conclusion that Esquivel-Quintana “only
applie[s] to convictions for ‘sexual abuse of a minor’” under section
101(a)(43)(A)).
In Garcia, the Fifth Circuit held that the phrase “crime of child abuse”
under the Act is ambiguous and our interpretation of that phrase, as
357
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
articulated in Matter of Velazquez-Herrera and Matter of Soram, is entitled
to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc. (“Chevron”), 467 U.S. 837 (1984). Garcia, 969 F.3d
at 132–34. 4 The court explicitly noted that our definition “embraces many
crimes, including those that entail infliction of ‘mental or emotional harm,’
‘sexual abuse, including direct acts of sexual contact,’ or ‘the use or
exploitation of a child as an object of sexual gratification,’” and it observed
that “[f]or purposes of this definition, a ‘child’ is ‘anyone under the age of
eighteen.’” Id. at 133 (quoting Matter of Velazquez-Herrera, 24 I&N Dec.
at 512). Finally, the court held that Esquivel-Quintana did not affect the
court’s Chevron analysis “because the statutory text there was
unambiguous—unlike the child-abuse provision here.” Id. at 134. We agree
with the Fifth Circuit’s reasoning in Garcia, because it is consistent with our
interpretation of the phrase “crime of child abuse,” the Court’s holding in
Esquivel-Quintana, and Congress’ overall statutory scheme setting forth
immigration consequences for crimes against children.
Although we have acknowledged that “sexual abuse of a minor” under
section 101(a)(43)(A) is related to a “crime of child abuse” under section
237(a)(2)(E)(i), we have also stated that they are separate grounds of
removability. See Matter of Soram, 25 I&N Dec. at 381. For the following
reasons, we conclude that section 237(a)(2)(E)(i) covers a broader range of
criminal conduct than the “sexual abuse of a minor” aggravated felony
provision.
In 1996, Congress engaged in “an aggressive legislative movement to
expand the criminal grounds of deportability in general and to create
a ‘comprehensive statutory scheme to cover crimes against children’ in
particular.” Matter of Velazquez-Herrera, 24 I&N Dec. at 508–09 (citation
omitted); see also Matter of Soram, 25 I&N Dec. at 383–84. As part of that
comprehensive statutory scheme, Congress added “sexual abuse of a minor”
to section 101(a)(43)(A) of the Act, alongside references to “murder” and
“rape.” Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, Div. C, § 321(a)(1), 110 Stat. 3009-546,
4
Four other circuits have similarly deferred to our interpretation of a “crime of child
abuse.” See Alvarez-Cerriteno v. Sessions, 899 F.3d 774, 781 (9th Cir. 2018);
Mondragon-Gonzalez, 884 F.3d at 159; Pierre v. U.S. Att’y Gen., 879 F.3d 1241, 1251
(11th Cir. 2018); Florez v. Holder, 779 F.3d 207, 213–14 (2d Cir. 2015). One circuit has
not, regarding “non-injurious criminally negligent conduct.” Ibarra v. Holder, 736 F.3d
903, 918 (10th Cir. 2013); cf. Zarate-Alvarez v. Garland, 994 F.3d 1158, 1164 (10th Cir.
2021) (per curiam) (deferring to our decision in Matter of Mendoza Osorio that a “crime
of child abuse” includes “child-endangerment convictions for knowing or reckless conduct
that does not result in injury to the child, provided the . . . statute requires, as an element
of the crime, a sufficiently high risk of harm to a child”).
358
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
3009-627 (“IIRIRA”). A conviction for an aggravated felony carries serious
consequences, such as barring a respondent from most forms of relief from
removal. 5 See Carachuri-Rosendo v. Holder, 560 U.S. 563, 581 (2010)
(stating that “an ‘aggravated felony’ is relevant . . . to the type of relief [an
applicant] may obtain”); see also Esquivel-Quintana, 137 S. Ct. at 1570
(citing Carachuri-Rosendo in support of the proposition that “sexual abuse
of a minor encompasses only especially egregious felonies”); Cabeda v. Att’y
Gen. of United States, 971 F.3d 165, 173 (3d Cir. 2020) (“[T]he term
‘aggravated felony’ itself implies a certain ‘inherent seriousness[.]’” (second
alteration in original) (citation omitted)).
In section 350(a) of the IIRIRA, Congress also enacted section
237(a)(2)(E)(i) of the Act, providing for removability for a “crime of child
abuse.” 6 This provision does not cross-reference other statutes, and
Congress left the phrase “crime of child abuse” undefined, “triggering the . . .
inference that Congress deliberately left [it] open to interpretation.” Matter
of Velazquez-Herrera, 24 I&N Dec. at 508 (citing INS v. Cardoza-Fonseca,
480 U.S. 421, 432 (1987)); see also Matthews, 927 F.3d at 616 & n.7
(distinguishing the section 237(a)(2)(E)(i) removability provision from
section 101(a)(43)(A)); Cabeda, 971 F.3d at 168 n.1 (same).
Against this backdrop, we defined section 237(a)(2)(E)(i) of the Act
“broadly,” in light of Congress’ intent to “single out those who have been
convicted of maltreating or preying upon children.” Matter of
Velazquez-Herrera, 24 I&N Dec. at 509; see also, e.g.,
Mondragon-Gonzalez, 884 F.3d at 159 (noting “Congress’ evident intent to
make crimes that harm children deportable offenses”); Florez v. Holder, 779
F.3d 207, 211–12 (2d Cir. 2015) (concluding that our broad definition of
a “crime of child abuse” is reasonable in light of the legislative history of
section 237(a)(2)(E)(i)). For purposes of this provision, we concluded that
Congress intended the word “child” to mean an individual under 18 based on
a review of Federal and State statutes defining “child abuse” when section
237(a)(2)(E)(i) was enacted. Matter of Velazquez-Herrera, 24 I&N Dec.
at 512 & n.15 (noting that in 1996 the Federal child abuse laws, and the child
abuse laws of 48 States and the District of Columbia, “defined the term
5
A conviction for an aggravated felony renders a respondent ineligible for, among other
forms of relief, asylum, cancellation of removal, and voluntary departure. See, e.g.,
sections 208(b)(2)(A)(ii), (B)(i) of the Act, 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i) (2018)
(asylum); sections 240A(a)(3), (b)(1)(C), (2)(A)(iv) of the Act, 8 U.S.C. § 1229b(a)(3),
(b)(1)(C), (2)(A)(iv) (2018) (cancellation of removal); section 240B(b)(1)(C) of the Act,
8 U.S.C. § 1229c(b)(1)(C) (2018) (voluntary departure).
6
In contrast to a conviction for an aggravated felony, a conviction for a “crime of child
abuse” does not necessarily bar a respondent from applying for asylum, cancellation of
removal for lawful permanent residents under section 240A(a) of the Act, and voluntary
departure.
359
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
‘child’ to mean a person under 18 years old”). We stated that this review
“provide[d] us with valuable insight into the types of conduct that Congress
understood to be encompassed by the term ‘crime of child abuse.’” Id.
at 509.
We acknowledge that Esquivel-Quintana held that the generic definition
of aggravated felony “sexual abuse of a minor” in the statutory rape context
requires, absent special circumstances, that the victim be younger than 16.
However, we believe that our broader generic definition of a “crime of child
abuse” in section 237(a)(2)(E)(i) of the Act, which defines a “child” as an
individual under 18, remains a valid interpretation of Congress’ intent to
make crimes that constitute the maltreatment of children, or impair a child’s
physical or mental well-being, removable offenses. The Court in
Esquivel-Quintana did not state that it was creating a generic definition of
statutory rape applicable to all removability provisions in the Act, and
statutory rape laws are not the only avenue through which the Federal
Government and the States have criminalized child abuse and related laws
such as endangerment. See Matter of Velazquez-Herrera, 24 I&N Dec.
at 509–12 (considering a variety of Federal and State child abuse laws in
defining a “crime of child abuse”).
Although the dissent argues that Esquivel-Quintana modifies the generic
definition of a “crime of child abuse” for statutory rape offenses, the
categorical approach methodology does not allow us to adopt different
generic definitions of the same crime to fit various species of predicate
offenses. Cf. Taylor v. United States, 495 U.S. 575, 599 (1990) (concluding
that under the categorical approach, a person may be convicted of “any crime,
regardless of its exact definition or label, having the basic elements” of
generic burglary). See generally Brown v. Caraway, 719 F.3d 583, 591 (7th
Cir. 2013) (“[T]he ‘categorical’ approach embraced by the Supreme Court in
Taylor requires that we adopt a single, nationwide definition of [a] generic
[offense] and then evaluate whether a particular state statute . . . corresponds
to that definition.”).
In sum, we reaffirm our holding in Matter of Velazquez-Herrera that for
purposes of a “crime of child abuse,” a “child” is a person under 18. As
noted, the Fifth Circuit has deferred to this holding. Garcia, 969 F.3d at 134.
The Supreme Court’s holding in Esquivel-Quintana that a statutory rape
offense does not qualify as “sexual abuse of a minor” based solely on the age
of the participants, unless it involves a victim under 16, does not affect our
definition of a “crime of child abuse” in Matter of Velazquez-Herrera, nor
does it control whether the respondent’s statutory rape offense falls within
this definition.
We also agree with the DHS that the Immigration Judge erred in finding
that section 39-13-506(c) of the Tennessee Code Annotated is categorically
360
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
overbroad, because it does not require proof that the accused have any
particular mental state. Although the statute does not itself identify an
applicable mens rea, section 39-11-301(c) of the Tennessee Code Annotated
provides that, unless a Tennessee criminal statute specifies a mens rea or
plainly dispenses with any mens rea requirement, the mens rea required for
a conviction is “intent, knowledge or recklessness.” Under Tennessee law,
“[t]he legal definition of statutory rape does not expressly require a culpable
mental state, yet neither does it clearly dispense with the requirement.” State
v. Crawford, No. W2011-02651-CCA-R3-CD, 2012 WL 2336734, at *4
(Tenn. Crim. App. June 19, 2012). Thus, the respondent’s statute of
conviction requires intentional, knowing, or reckless conduct. See 7 Tenn.
Prac. Pattern Jury Instr. T.P.I—Crim. 10.05(c) (“For you to find the
defendant guilty of [aggravated statutory rape], the state must have proven
beyond a reasonable doubt . . . that the defendant acted either intentionally,
knowingly or recklessly.”).
In addition to requiring a mens rea falling within the generic definition of
a “crime of child abuse,” section 39-13-506(c) necessarily involves conduct
that constitutes “maltreatment of a child or [impairment of] a child’s physical
or mental well-being.” Matter of Velazquez-Herrera, 24 I&N Dec. at 512.
This is where we part ways with the dissent.
The dissent argues that the respondent’s conviction is not a “crime of
child abuse” under the Act because his statute of conviction does not
necessarily involve “‘sexual abuse’ as we used that phrase in Matter of
Velazquez-Herrera.” Matter of Aguilar-Barajas, 28 I&N Dec. 354, 367
(BIA 2021) (Petty, concurring and dissenting). And it contends that our
decision today is inconsistent with the Supreme Court’s holding in
Esquivel-Quintana because statutory rape is not “sexual abuse” based solely
on the age of the participants, unless the victim is under 16.
Esquivel-Quintana, 137 S. Ct. at 1568. We respectfully disagree, because
the respondent’s offense falls within the generic definition of a “crime of
child abuse” consistent with Matter of Velazquez-Herrera and Supreme
Court and circuit precedent.
Our definition of a “crime of child abuse” in Matter of Velazquez-Herrera
reaches offenses that constitute “maltreatment of a child or [impairment of]
a child’s physical or mental well-being, including sexual abuse or
exploitation.” Matter of Velazquez-Herrera, 24 I&N Dec. at 512 (emphasis
added); see also Garcia, 969 F.3d at 133. We have never said that this
definition only reaches acts of “sexual abuse.” The participle “including” in
our definition in Matter of Velazquez-Herrera denotes that maltreatment or
impairment of a child’s well-being includes—but is not limited to—“sexual
abuse.” Maltreatment or impairment of a child’s well-being also
encompasses, “[a]t a minimum,” acts involving “physical harm, even if
361
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
slight,” “mental or emotional harm,” or the “use or exploitation of a child as
an object of sexual gratification.” Matter of Velazquez-Herrera, 24 I&N
Dec. at 512; see also Garcia, 969 F.3d at 136 (stating that “sexual
exploitation [of a child] necessarily involve[s] acts that impair a child’s
physical or mental well-being” (citing Matter of Velazquez-Herrera, 24 I&N
Dec. at 512)).
In Garcia, the Fifth Circuit concluded that “deliberate acts of sexual
contact between a victim who is almost seventeen and a perpetrator who just
turned twenty” necessarily involves “sexual exploitation of a child.” 7 969
F.3d at 135–36 (“Texas law recognizes that this crime is, by definition,
harmful to a child.” (citing Tex. Fam. Code Ann. § 261.001(1)(E) (West
2019) (defining child abuse for purposes of State mandatory-reporting law to
include “sexual conduct harmful to a child’s mental, emotional, or physical
welfare”))). The Fourth Circuit has similarly recognized, in the Federal
sentencing context, that statutory rape under Tennessee law involving
a victim under 18 with a 4-year age differential necessarily relates to the
“physical or nonphysical misuse or maltreatment of a person under the age
of eighteen for a purpose associated with sexual gratification.” United States
v. Hardin, 998 F.3d 582, 586, 589 (4th Cir. 2021).
Thus, we conclude that the minimum criminal conduct proscribed by the
respondent’s statute of conviction—“sexual penetration” between a victim
who is 17 years old and a perpetrator who is at least 27 years old, committed
with a mens rea of recklessness—necessarily involves maltreatment or
impairment of a child’s physical or mental well-being and falls within the
generic definition of a “crime of child abuse” under the Act. Tenn. Code
Ann. §§ 39-13-506(c), 39-13-501(7); Matter of Velazquez-Herrera, 24 I&N
Dec. at 512; see also Garcia, 969 F.3d at 135–36. 8 Therefore, the offense of
aggravated statutory rape under section 39-13-506(c) of the Tennessee Code
7
The dissent asserts that the “conduct at issue in Garcia was not consensual” because the
noncitizen in that case “raped and impregnated” his victim. Matter of Aguilar-Barajas, 28
I&N Dec. at 372 n.7 (citation omitted). However, an individual’s conduct is irrelevant
under the categorical approach, and the noncitizen in Garcia was not convicted of
nonconsensual sexual activity. Although another provision of Texas law criminalizes
nonconsensual sex, the statute at issue in Garcia criminalizes “sex under any
circumstances with a child.” In re B.W., 313 S.W.3d 818, 821 (Tex. 2010) (emphasis
added).
8
Although the dissent recognizes that Matter of Velazquez-Herrera listed “sexual abuse”
as only “a form of child abuse,” it asserts that the “specific type of ‘crime of child abuse’
alleged in this case is ‘sexual abuse.’” Matter of Aguilar-Barajas, 28 I&N Dec. at 368
(emphasis added) (citation omitted). However, it does not explain why we cannot consider
whether the respondent’s offense involved “mental or physical harm” or “exploitation.”
Nor does it challenge our conclusion that the respondent’s offense involved maltreatment
or impairment of a child’s well-being under Matter of Velazquez-Herrera, 24 I&N Dec.
at 512.
362
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
Annotated is categorically a “crime of child abuse” under section
237(a)(2)(E)(i) of the Act.
There is precedential support for the definitions and reasoning we have
applied here as well as our conclusion. We are unaware of applicable
precedent concluding that the limited holding of Esquivel-Quintana,
articulating what constitutes “sexual abuse of a minor,” controls the
definition of a “crime of child abuse.” The categorical approach can lead to
difficult results, because it requires us to disregard the respondent’s actual
criminal conduct and instead hypothetically analyze the minimum conduct
that has a realistic probability of being prosecuted under the statute of
conviction. In determining that the respondent is removable as charged, we
have, pursuant to the requirements of the categorical approach, ignored the
fact that he was 28 years old at the time he committed this crime against his
14-year-old victim and have instead pretended the victim was 1 day shy of
turning 18. While we are bound by the categorical approach, we are not blind
to the reality of its application. Nevertheless, the categorical approach does
not require us to interpret the generic definition of a “crime of child abuse”
under section 237(a)(2)(E)(i) based upon the generic definition of “sexual
abuse of a minor” at section 101(a)(43)(A) of the Act. Accordingly, the
DHS’s appeal is sustained, the Immigration Judge’s decision is vacated, the
respondent’s removal proceedings are reinstated, and the record is remanded
to the Immigration Court to provide the respondent with an opportunity to
apply for relief from removal for which he may be eligible.
ORDER: The Department of Homeland Security’s appeal is sustained,
the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Court for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
CONCURRING AND DISSENTING OPINION: Aaron R. Petty,
Appellate Immigration Judge
I.
The respondent was convicted in a Tennessee court of aggravated
statutory rape. See Tenn. Code Ann. § 39-13-506(c) (2019). Based on that
conviction, the Department of Homeland Security (“DHS”) charged the
respondent with removability as a noncitizen “convicted of . . . a crime of
child abuse.” Section 237(a)(2)(E)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018). We must apply the “categorical
363
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
approach” to determine whether the respondent’s conviction renders him
removable. Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013) (citing
Carachuri-Rosendo v. Holder, 560 U.S. 563, 580 (2010) (noting the word
“conviction” is “the relevant statutory hook” requiring application of the
categorical approach)); Matter of Moradel, 28 I&N Dec. 310, 316–17 (BIA
2021).
I concur in the majority’s conclusion that the Immigration Judge
incorrectly assessed the mens rea required under section 39-13-506(c).
Statutory rape is often a strict liability offense. See Thompson v. Barr, 922
F.3d 528, 534 (4th Cir. 2019); see also Acevedo v. Barr, 943 F.3d 619,
625–26 (2d Cir. 2019); Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 787
(BIA 2020). However, as the majority explains, the Tennessee statute at
issue here is an exception to the general rule. I also agree that, in view of the
majority’s resolution of this case, a remand is required for the respondent to
be afforded an opportunity to seek relief from removal. I must respectfully
dissent, however, from the majority’s conclusion that the respondent is
removable.
As is well-known by now, the categorical approach often requires results
that may be “counterintuitive and hard-to-justify.” See Cabeda v. Att’y
Gen.of the U.S., 971 F.3d 165, 166 (3d Cir. 2020). 1 One such result is
1
Additional commentary on the counterintuitive—and increasingly unjust—results
required by the categorical approach is not hard to come by. See, e.g., United States v. Scott,
990 F.3d 94, 125–27 (2d Cir. 2021) (en banc) (Park, J., concurring) (noting the “absurdity”
of convening an en banc court “to decide whether Mr. Scott’s two convictions for
first-degree manslaughter—one for shooting a man in the face and the other for stabbing
a man to death—count as ‘violent felonies’” and collecting similar sentiments); United
States v. Begay, 934 F.3d 1033, 1042 (9th Cir. 2019) (N.R. Smith, J., dissenting)
(“MURDER in the second-degree is NOT a crime of violence??? . . . ‘I feel like I am taking
crazy pills.’” (citation omitted)); Menendez v. Whitaker, 908 F.3d 467, 475 (9th Cir. 2018)
(Callahan, J., concurring) (“The present system forces courts to parse state statutes for
determinations that no state legislator ever considered, and leads to uneven results, as the
immigration consequences to individuals who committed basically the same offenses turn
on the fortuity of the breadth of the state statute, which in most instances has nothing to do
with the individual’s actual criminal conviction.”); Villanueva v. United States, 893 F.3d
123, 139 (2d Cir. 2018) (Pooler, J., dissenting) (noting the categorical approach is a
“bizarre exercise” when deciding if shooting someone is a crime of violence); United States
v. Valdivia-Flores, 876 F.3d 1201, 1210 (9th Cir. 2017) (O’Scannlain, J., specially
concurring) (noting “bizarre and arbitrary effects”); United States v. Davis, 875 F.3d 592,
595 (11th Cir. 2017) (stating that the categorical approach sends us “down the rabbit hole . . .
to a realm where we must close our eyes as judges to what we know as men and women”);
United States v. Chapman, 866 F.3d 129, 136 (3d Cir. 2017) (Jordan, J., concurring)
(noting the approach requires judges to “ignore the real world”); United States v. Faust,
853 F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring) (noting individual Justices have
expressed skepticism to varying degrees and for varying reasons); United States v. Doctor,
364
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
mandated here. The respondent was convicted of aggravated statutory rape
involving a minor who was 14 at the time of the encounter. He was 28. But
because the “formalistic framework,” id., of the categorical approach
requires us to examine not what the respondent actually did but what
a notional defendant might hypothetically be convicted of under the same
criminal statute, our analysis is limited to determining whether the State
statute criminalizes more than its “generic” equivalent. 2
The Supreme Court has held that the generic age of consent is 16.
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 (2017). Accordingly,
absent aggravating circumstances, consensual sexual activity between an
adult and a minor over 16 is not categorically “abusive.” If a statutory rape
statute sweeps more broadly than the generic definition (in other words, if it
sets the age of consent above 16) it cannot form the predicate offense for
removability under section 237(a)(2)(E)(i) of the Act for having been
convicted of a crime of child abuse. There can be no categorical “child
abuse” where the criminalized conduct is not categorically abusive. Here,
the respondent was convicted of violating a statute that sets the age of consent
at 18. Because the Supreme Court has left us no other option, I would dismiss
the DHS’s appeal and terminate the respondent’s removal proceedings.
II.
A respondent who has been convicted of a “crime of child abuse, child
neglect, or child abandonment,” is removable. Section 237(a)(2)(E)(i) of the
Act. Normally, our first step would be to determine which categorical
methodology to use. See Shular v. United States, 140 S. Ct. 779, 783 (2020).
If the Federal statute refers to specific crimes without defining their elements,
we must define the generic offense in order to compare the elements of the
842 F.3d 306, 315 (4th Cir. 2016) (Wilkinson, J., concurring) (same). The prevalence of
separate opinions suggests underlying uniformity—a struggle to reconcile what should be
done with what the current state of the law requires.
2
The Supreme Court has cautioned that the categorical approach requires “a realistic
probability, not a theoretical possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.” Moncrieffe, 569 U.S. at 191 (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)); see also Matter of Reyes, 28 I&N
Dec. 52, 55 n.1 (A.G. 2020). This limitation has no impact here, as Tennessee often
prosecutes statutory rape offenses where the victim is 16 or 17 years old. See, e.g., State
v. Powell, No. E2019-00524-CCA-R3-CD, 2020 WL 4284047, at *1 (Tenn. Crim. App.
Jul. 27, 2020); State v. Green, No. E2018-01287-CCA-R3-CD, 2020 WL 1921088, at *1
(Tenn. Crim. App. Apr. 21, 2020); State v. McGrowder, No. M2013-01184-CCA-R3-CD,
2014 WL 4723100, at *1 (Tenn. Crim. App. Sep. 23, 2014); State v. Madison,
No. M2010-00059-CCA-R3-CD, 2012 WL 1589045, at *1 (Tenn. Crim. App. May 4,
2012).
365
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
State crime to its generic counterpart. Id. (citing Taylor v. United States, 495
U.S. 575, 598–99, 602 (1990)). If, however, the Federal statute specifies
some other criterion, we simply look to whether a conviction under the State
statute necessarily meets that criterion. Id. (citing Kawashima v. Holder, 565
U.S. 478, 484 (2012)). In this case, it is not immediately obvious which
approach applies. “Child abuse” may refer to a class of specific criminal
statutes, as many States have statutes that go by that or a similar name. See
Matter of Soram, 25 I&N Dec. 378, 382 (BIA 2010). But “child abuse” also
lacks the common-law pedigree of “unambiguously name[d] offenses” like
burglary, arson, and extortion. Shular, 140 S. Ct. at 785. In Matter of
Velazquez-Herrera, we adopted an approach in line with the later-developed
Kawashima line of cases. 24 I&N Dec. 503, 512 (BIA 2008); cf. Matter of
Soram, 25 I&N Dec. at 386 (Filppu, concurring). For purposes of section
237(a)(2)(E)(i), we have defined a “child” as anyone under 18 years of age,
and we have defined “child abuse”
broadly to mean any offense involving an intentional, knowing, reckless, or
criminally negligent act or omission that constitutes maltreatment of a child or that
impairs a child’s physical or mental well-being, including sexual abuse or
exploitation. At a minimum, this definition encompasses convictions for offenses
involving the infliction on a child of physical harm, even if slight; mental or
emotional harm, including acts injurious to morals; sexual abuse, including direct
acts of sexual contact, but also including acts that induce (or omissions that permit)
a child to engage in prostitution, pornography, or other sexually explicit conduct; as
well as any act that involves the use or exploitation of a child as an object of sexual
gratification or as a tool in the commission of serious crimes, such as drug
trafficking.
Matter of Velazquez-Herrera, 24 I&N Dec. at 512.
We may safely leave the methodological question for another day,
however, because both approaches yield the same result. Whether we treat
“child abuse” as a specific crime requiring us to identify its generic elements,
or as a separate criterion, both require abuse. Treating abuse as one of the
elements under the Taylor methodology or as a separate criterion in the
Kawashima methodology makes no difference. The question, then, is
whether the Tennessee statute the respondent was convicted of violating
criminalizes more than what is generically abusive.
As the majority explains, the respondent was convicted of violating
section 39-13-506(c) of the Tennessee Code Annotated, which criminalizes
“unlawful sexual penetration of a victim by the defendant, or of the defendant
by the victim when the victim is at least thirteen (13) but less than eighteen
(18) years of age and the defendant is at least ten (10) years older than the
victim.”
366
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
The Tennessee statute meets the first two elements required under Matter
of Velazquez-Herrera. First, both the Tennessee statute and our definition of
a “crime of child abuse” apply to victims under the age of 18. See Matter of
Velazquez-Herrera, 24 I&N Dec. at 512. Second, as explained by the
majority, the Tennessee statute requires a mens rea of intent, knowledge or
recklessness, which is more restrictive than the generic requirement of
criminal negligence. See id. However, the third element, as relevant here, is
whether a conviction under section 39-13-506(c) necessarily constitutes
“sexual abuse” as we used that phrase in Matter of Velazquez-Herrera. 3 See
id. (noting a “crime of child abuse” includes “sexual abuse or exploitation”
and “sexual abuse, including direct acts of sexual contact”). The Supreme
Court has held that consensual sexual contact between an adult and a 16- or
17-year-old is not generically abusive, as a large majority of States set the
age of consent at 16. We are not at liberty to fashion a more expansive
understanding of what constitutes sexual abuse.
In Esquivel-Quintana, the Supreme Court considered the effect of
statutory rape laws in the context of whether a conviction constituted an
aggravated felony as “sexual abuse of a minor” under section 101(a)(43)(A)
of the Act, 8 U.S.C. § 1101(a)(43)(A) (2018). The Supreme Court agreed
with the petitioner that his conduct did not constitute “abuse” because “in the
context of statutory rape offenses that criminalize sexual intercourse based
solely on the age of the participants, the generic federal definition of sexual
abuse of a minor requires that the victim be younger than 16.”
Esquivel-Quintana, 137 S. Ct. at 1568, rev’g Esquivel-Quintana v. Lynch,
810 F.3d 1019, 1029 (6th Cir. 2016) (Sutton, J., concurring and dissenting in
part) (noting that the age of consent is “the age at which a State no longer
deems [all] sex nonconsensual (and therefore abusive).”); see also United
States v. Jaycox, 962 F.3d 1066, 1069–70 (9th Cir. 2020). In reaching this
conclusion, the Supreme Court surveyed State laws as they existed when
section 101(a)(43)(A) was amended in 1996 to add “sexual abuse of a minor”
as an aggravated felony and concluded that “[a]lthough the age of consent
for statutory rape purposes varies by jurisdiction, . . . the ‘generic’ age [of
consent]—in 1996 and today—is 16.” Esquivel-Quintana, 137 S. Ct.
at 1569. The Court’s conclusions that the generic age of consent in 1996 was
3
The majority suggests that the respondent’s statute of conviction may categorically
involve “mental or physical harm,” “exploitation,” or “maltreatment or impairment of
a child’s well-being.” Matter of Aguilar-Barajas, 28 I&N Dec. 354, 362 n.8 (BIA 2021).
But whether the Tennessee statute could be said to fall within a linguistic formula of our
own creation is immaterial if it does not also categorically meet the statutory requirement
of “abuse.” See section 237(a)(2)(E)(i) of the Act. Crimes involving harm short of the
standard of “abuse” (or “neglect” or “endangerment”) are not grounds of removability
under this provision.
367
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
16, and that (absent aggravating circumstances) consensual sexual activity
with someone over 16 is not generically abusive, were necessary to its
decision. They form part of Esquivel-Quintana’s holding. See Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (noting a court’s holding
includes everything necessary to its decision). We are bound by these
conclusions.
While the age differential in this case is certainly troubling, I believe the
Supreme Court has precluded the result reached by the majority. The specific
type of “crime of child abuse” alleged in this case is “sexual abuse.” See
Matter of Velazquez-Herrera, 24 I&N Dec. at 512 (listing “sexual abuse” as
a form of child abuse). Based on its review of State laws in effect in 1996,
which is also the relevant timeframe for this case, 4 the Supreme Court
concluded that “the ‘generic’ age [of consent]—in 1996 and today—is 16.”
Esquivel-Quintana, 137 S. Ct. at 1569. Because it is not criminalized in most
States, the Supreme Court concluded that sexual contact between an adult
and a 16- or 17-year-old is not categorically “abusive.” Id. at 1572 (“Where
sexual intercourse is abusive solely because of the ages of the participants,
the victim must be younger than 16.”).
The Supreme Court’s analysis requires us to conclude that the
respondent’s conviction for aggravated statutory rape is not a crime of child
abuse. The Tennessee statute criminalizes sexual contact with 16- and
17-year-olds based solely on the age of the participants. Tenn. Code Ann.
§ 39-13-506(c). Both “child abuse” under section 237(a)(2)(E)(i) at issue
here and “sexual abuse of a minor” under section 101(a)(43)(A), which the
Supreme Court considered in Esquivel-Quintana, require “abuse” as
a predicate. Because the Tennessee statute criminalizes conduct which,
under Esquivel-Quintana, is not generically abusive, the Tennessee statute is
overbroad. Cf. United States v. Rangel-Castaneda, 709 F.3d 373, 377–78
(4th Cir. 2013) (holding that section 39-13-506(c) of the Tennessee Code
Annotated is overbroad for a crime of violence sentencing enhancement
because the generic age of consent is 16); United States v. Lopez-DeLeon,
513 F.3d 472, 475 (5th Cir. 2008) (holding that section 261.5(a) of the
California Penal Code, which sets the age of consent at 18, is overbroad for
a crime of violence because the generic age of consent is 16), abrogated by
United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc),
abrogated by Esquivel-Quintana, 137 S. Ct. 1562. In short, we cannot deem
4
The current section 237(a)(2)(E)(i), which includes the “child abuse” provision at issue,
was enacted in 1996 at the same time as section 101(a)(43)(A), the provision the Supreme
Court considered in Esquivel-Quintana. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, §§ 321(a)(1), 350(a), 110 Stat.
3009-546, 3009-627, 3009-640; Esquivel-Quintana, 137 S. Ct. at 1569; Matter of
Velazquez-Herrera, 24 I&N Dec. at 507.
368
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
a conviction under section 39-13-506(c) to be categorically a crime of child
abuse because it criminalizes conduct that the Supreme Court has held is not
categorically abusive.
III.
The majority catalogs several differences between section 101(a)(43)(A)
and section 237(a)(2)(E)(i), but none of them persuade me that we can
disregard the Supreme Court’s holding that consensual sexual activity with
minors over 16 is not generically abusive.
The majority notes that Esquivel-Quintana addressed the “sexual abuse
of a minor” provision in section 101(a)(43)(A), where it is listed alongside
murder and rape as examples of especially egregious crimes. Matter of
Aguilar-Barajas, 28 I&N Dec. 354, 357–58 (BIA 2021). This is true, but it
is immaterial to both the generic definition of statutory rape and the generic
age of consent. See Esquivel-Quintana, 137 S. Ct. at 1569, 1572. Nothing
about the Supreme Court’s understanding of the generic definition of
statutory rape, as it was reflected in State statutes in 1996, suggests any
limitation to immigration law generally, much less to the “sexual abuse of
a minor” aggravated felony provision under section 101(a)(43)(A) of the Act
in particular. The Supreme Court’s holding is binding here, notwithstanding
that it was announced in a different context, because we are required “to
adhere not only to the holdings of [the Supreme Court’s] prior cases, but also
to [its] explications of the governing rules of law.” Cnty. of Allegheny
v. ACLU, 492 U.S. 573, 668 (1989) (Kennedy, J., concurring and dissenting
in part), abrogated on other grounds by Town of Greece v. Galloway, 572
U.S. 565 (2014). 5 The Supreme Court has clearly held that, absent
aggravating circumstances, consensual sexual conduct between an adult and
a minor over the generic age of consent is not categorically abusive. Our role
is not to challenge that conclusion, but to apply it.
5
Even if not a holding, the Supreme Court’s comprehensive survey of State law would
still clearly be “considered dicta” to which we would still “take a deferential position.”
Sonnier v. Crain, 613 F.3d 436, 464 & n.22 (5th Cir. 2010) (Dennis, J., concurring and
dissenting in part) (citation omitted), withdrawn in part on reh’g, 634 F.3d 778 (5th Cir.
2011) (per curiam); see also United Nurses & Allied Pros. v. NLRB, 975 F.3d 34, 40 (1st
Cir. 2020) (noting that “[F]ederal appellate courts are bound by the Supreme Court’s
considered dicta almost as firmly as by the Court’s outright holdings, particularly when, as
here, a dictum is of recent vintage and not enfeebled by any subsequent statement” and
“must be accorded great weight and should be treated as authoritative when . . . badges of
reliability abound” (alteration in original) (citations omitted)); Valladolid v. Pac.
Operations Offshore, LLP, 604 F.3d 1126, 1131 (9th Cir. 2010), aff’d and remanded, 565
U.S. 207 (2012).
369
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
Furthermore, acknowledging that the same conduct may be abusive with
respect to some minors but not others based on their relative age does not
redefine “child” for a particular purpose or modify our definition of a “crime
of child abuse.” Matter of Aguilar-Barajas, 28 I&N Dec. at 360. In Matter
of Velazquez-Herrera, we defined a “child” for purposes of “child abuse” as
someone under 18. Virtually all forms of child abuse can be inflicted on
a 16- or 17-year-old. But, as we have recently explained, conduct that may
be abusive or neglectful with respect to younger children may not be abusive
or neglectful with respect to those who are older. See Matter of
Rivera-Mendoza, 28 I&N Dec. 184, 185, 187 (BIA 2020) (holding that
a conviction under section 163.545(1) of the Oregon Revised Statutes, which
prohibits negligently leaving a child under 10 unattended for such time as
likely to endanger the health or welfare of the child, is a crime of child abuse
or neglect under section 237(a)(2)(E)(i)); see also Esquivel-Quintana, 137
S. Ct. at 1572. The same principle applies with equal force here.
By relying principally on the grounds that section 101(a)(43)(A) is
narrower than section 237(a)(2)(E)(i), and that “child” for purposes of
section 237(a)(2)(E)(i) is a person under 18, Matter of Aguilar-Barajas, 28
I&N Dec. at 358–60, the majority avoids the logically antecedent question
whether consensual sexual conduct between a 16- or 17-year-old and
someone 18 or older meets the generic definition of “abuse” in the first place.
The Supreme Court has determined that for purposes of Federal law, in the
absence of aggravating circumstances, the generic age of consent is 16. The
necessary corollary is that if consent can be legally given, consensual sexual
activity is not inherently abusive. See Esquivel-Quintana, 810 F.3d at 1029.
While some courts have suggested that Esquivel-Quintana redefined “minor”
as that term is used in the phrase “sexual abuse of a minor,” see, e.g., Shroff
v. Sessions, 890 F.3d 542, 545 (5th Cir. 2018), as discussed above,
Esquivel-Quintana did not redefine anything. It held that some conduct with
respect to some minors is not categorically abusive. 6
Finally, while the majority is correct to note that Esquivel-Quintana is
a narrow decision, as the United States Courts of Appeals for the Third and
Fourth Circuits have explained, that statement is true only in the sense that
Esquivel-Quintana addresses “the narrow context of statutory rape.”
Thompson, 922 F.3d at 534; accord Cabeda, 971 F.3d at 172. A recent
decision of the Fifth Circuit, Garcia v. Barr, 969 F.3d 129, 134 (5th Cir.
2020), could be read to suggest that Esquivel-Quintana is narrow in the sense
6
This does not, as the majority contends, lead to “different generic definitions of the same
crime to fit various species of predicate offenses.” Matter of Aguilar-Barajas, 28 I&N Dec.
at 360. It simply recognizes that some statutory rape offenses encompass conduct that the
Supreme Court has held is not categorically abusive. Statutes that criminalize conduct that
is not categorically abusive are not categorically “crimes of child abuse.”
370
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
that it applies only to the “sexual abuse of a minor” provision of section
101(a)(43)(A). But a close reading of Garcia reveals that the question
whether consensual sexual conduct is categorically abusive was neither
raised nor decided in that case.
The petitioner in Garcia argued, as relevant here, that our interpretation
of “crime of child abuse” was not entitled to deference under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
(“Chevron”). Garcia, 969 F.3d at 132. At the time, the Fifth Circuit had not
yet determined whether our construction was entitled to Chevron deference,
and the circuits were split on the question. The Fifth Circuit concluded that
Matter of Velazquez-Herrera and Matter of Soram articulated a standard that
was “reasonable” and “consistent with the purpose behind this ground for
removal.” Id. at 134. The petitioner suggested that, as a condition of
according Chevron deference, “the Board should reconsider its definition of
a crime of child abuse in light of Esquivel-Quintana.” Id. The Fifth Circuit
responded:
Esquivel Quintana has no application here. The Court’s narrow holding didn’t relate
to the child-abuse provision in [section 237](a)(2)(E)(i), mandate a particular
approach to statutory interpretation, or cast doubt on the Board’s definition of a crime
of child abuse. See Matthews v. Barr, 927 F.3d 606, 614–16 (2d Cir. 2019). And
because the statutory text there was unambiguous—unlike the child-abuse provision
here—that case doesn’t affect our Chevron analysis. See Esquivel-Quintana, 137
S. Ct. at 1572.
Garcia, 969 F.3d at 134. Read in context, this passage addresses only
whether our existing precedent had to be revisited in light of
Esquivel-Quintana in order to merit Chevron deference. I agree with Garcia
that Matter of Velazquez-Herrera and Matter of Soram remain good law
following Esquivel-Quintana. For the reasons outlined above, nothing in
Esquivel-Quintana requires us to revisit our definition of “child” as someone
under 18 or our substantive definition of a “crime of child abuse.” The
statement that “Esquivel-Quintana has no application here,” id., means only
that it does not impact the Chevron analysis. See Adeeko v. Garland, No.
19-60703, 2021 WL 2709353, at *3 (5th Cir. July 1, 2021) (foreclosing any
argument that the Board’s definition of “child abuse” under section
237(a)(2)(E)(i) of the Act is unreasonable). With respect to whether the
Texas statute of conviction was categorically a crime of child abuse, the
petitioner’s arguments were limited to the mens rea and level of harm
required under Texas law. Id. at 135–36. Garcia did not address the question
whether consensual sexual activity by an adult with a minor over the age of
371
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
consent is categorically abusive because the issue was neither raised by the
petitioner nor decided by the court. 7
IV.
The preceding discussion is, of course, an entirely abstract, hypothetical
exercise. There is no 16- or 17-year-old partner. In fact, if the respondent
had been convicted of the exact same conduct in any of the 34 jurisdictions
that set the age of consent at 15 or 16 in 1996, see Esquivel-Quintana, 137
S. Ct. at 1573–76 (setting forth a list of State offenses criminalizing sexual
intercourse solely based on the age of the participants), his removability
would be clear. But we are bound to look only to the elements of the statute
rather than the facts of the offense even “when the record makes it clear
beyond any possible doubt” what the respondent actually did. Mathis
v. United States, 136 S. Ct. 2243, 2270 (2016) (Alito, J., dissenting). Existing
law requires us to disregard the fact that just a few days prior to his 29th
birthday, the respondent had sex with a 14 year old.
Furthermore, we must ignore the fact that the Tennessee statute requires
an age differential of a decade because the Supreme Court’s rule applies
“regardless of the age differential between the two participants.”
Esquivel-Quintana, 137 S. Ct. at 1572. It is not immediately obvious why
the Supreme Court left open the possibility of abuse when misuse of
a position of trust or authority is implicated, but it did not do the same when
there is a substantial difference in age. Both appear to implicate questions of
undue influence. Power differentials may inhere through relative age as well
as relative positions. But that is the line the Supreme Court has drawn, and
we must follow it.
As noted, the categorical approach sometimes leads to irrational results.
Its original objective was to create parity in Federal treatment among
disparate State statutes, see Taylor, 495 U.S. at 590–91, but it has instead
resulted in a lack of parity in Federal treatment of identical criminal conduct.
As the Fifth Circuit has explained in a factually similar case, the categorical
approach
has now metastasized into something that requires rigorous abstract reasoning to
arrive at the conclusion that a 35-year-old who sexually abused a 14-year-old cannot
be categorized as a tier II sex offender—notwithstanding the fact that his crime was
actually “committed against a minor”—because it is theoretically possible that
7
The conduct at issue in Garcia was not consensual. The petitioner “raped and
impregnated his fourteen-year-old stepdaughter.” Garcia, 969 F.3d at 131. He did not
argue that his statute of conviction was categorically overbroad because in addition to
criminalizing his own conduct, it also criminalized consensual sexual conduct with minors
over the generic age of consent.
372
Cite as 28 I&N Dec. 354 (BIA 2021) Interim Decision #4025
someone else could be convicted under the statute without being four years older
than the victim.
United States v. Escalante, 933 F.3d 395, 407 (5th Cir. 2019).
That is precisely the situation we have here. The 28-year-old respondent
who sexually abused a 14-year-old should not be found removable for having
committed a “crime of child abuse,” notwithstanding the fact that only one
State set the age of consent at 14 in 1996, because it is theoretically possible
that someone else could be convicted under the same statute for having sex
with a minor just prior to the minor’s 18th birthday. 8
I would, regretfully, affirm the order terminating proceedings. That is, in
my judgment, “what the law requires.” United States v. McCollum, 885 F.3d
300, 309 (4th Cir. 2018) (Traxler, J., concurring).
8
The counterintuitive and unsatisfactory results associated with the categorical approach
are compounded in the context of statutory rape because the function of statutory rape
laws—as reflected in the fact that they are usually strict liability—is not only to punish,
but to protect. Under the categorical approach, States such as Tennessee that seek to protect
minors by enacting an age of consent above the generic age of 16 (as it existed
a quarter-century ago) will find their efforts paradoxically result in fewer—or no—Federal
consequences. And this is so not just where the minor is 16 or 17; such statutes would be
overbroad regardless of how young the minor might be. Further, because the generic age
of consent is determined as of the date the legislation was enacted, it will not change to
reflect changes in state law unless and until Congress revisits the issue or the Supreme
Court modifies the required analysis. We are therefore left with the even more paradoxical
possibility that if every State raised the age of consent to 17 or 18, no statutory rape offenses
would carry Federal consequences. I have difficulty accepting that as Congress’ intent.
See Quarles v. United States, 139 S. Ct. 1872, 1879 (2019) (noting that a definition of
“burglary” that would eliminate many States’ burglary statutes from serving as a predicate
offense under 18 U.S.C. § 924(e) (2018) would “defy common sense” and “defeat
Congress’ stated objective”). Such a result would have particularly untoward
consequences in light of the frequency with which statutory rape is charged when a minor
under the age of consent is the victim of sexualized violence. See, e.g., Garcia, 969 F.3d
at 131; see generally Michelle Oberman, Regulating Consensual Sex With Minors:
Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703, 749 (2000) (concluding that only
7 percent of statutory rape prosecutions arise out of consensual, romantic relationships
where the parties are close in age). Yet, unless Congress intervenes, that appears to be the
direction we are headed. See Pereida v. Wilkinson, 141 S. Ct. 754, 762 n.2 (2021)
(“Nothing requires Congress to employ the categorical approach.”).
373