United States Court of Appeals

For the Eighth Circuit

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No. 16-1571

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Luis Gerardo Garcia-Urbano,

lllllllllllllllllllllPetitioner,

v.

Jefferson B. Sessions, III, Attorney General of the United States,

lllllllllllllllllllllRespondent.

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Petition for Review of an Order of the

 Board of Immigration Appeals

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Submitted: October 18, 2017

Filed: May 17, 2018

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Before COLLOTON, BEAM, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Luis Garcia-Urbano, a citizen of Mexico, petitions for review of a decision of

the Board of Immigration Appeals. The Board upheld the decision of an immigration

judge that denied Garcia-Urbano’s application for asylum, withholding of removal,

and protection under the Convention Against Torture. Garcia-Urbano contends that

the Board erred in treating his conviction for criminal sexual conduct in the third
degree under Minn. Stat. § 609.344, subdiv. 1(b) as an aggravated felony under the

Immigration and Nationality Act (INA). We conclude that the Board was correct and

therefore deny the petition for review.

I.

Garcia-Urbano was admitted to the United States in April 2014 at the age of

seventeen as a lawful permanent resident. At the age of eighteen, he pleaded guilty

to criminal sexual conduct in the third degree, in violation of Minn. Stat. § 609.344,

subdiv. 1(b), and to fleeing a police officer in a motor vehicle, in violation of Minn.

Stat. § 609.487, subdiv. 3.

The Department of Homeland Security commenced removal proceedings

against Garcia-Urbano, alleging that the two convictions were grounds for removal

from the United States. The Department maintained that criminal sexual conduct in

the third degree constituted “sexual abuse of a minor,” and that fleeing a police

officer in a motor vehicle was a “crime of violence.” Each conviction would thus be

an “aggravated felony,” see 8 U.S.C. § 1101(a)(43)(A), (F), and each would serve as

an independent ground for removal. See id. § 1227(a)(2)(A)(iii).

Garcia-Urbano applied for asylum, but the immigration judge denied the

application, and the Board dismissed Garcia-Urbano’s appeal. The Board concluded

that Garcia-Urbano was ineligible for asylum because his conviction for criminal

sexual conduct was an aggravated felony under the INA. See 8 U.S.C.

§ 1158(b)(2)(A)(ii), (B)(i). Because that conviction sufficed to make Garcia-Urbano

ineligible, the Board found it unnecessary to address Garcia-Urbano’s conviction for

fleeing a police officer in a motor vehicle.1

1Garcia-Urbano also applied for withholding of removal and protection under

the Convention Against Torture. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. §§ 1208.16-

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II.

An alien who “is convicted of an aggravated felony at any time after

admission” is both removable and ineligible for asylum. 8 U.S.C.

§§ 1227(a)(2)(A)(iii), 1158(b)(2)(A)(ii) & (B)(i). “Sexual abuse of a minor,” under

either federal or state law, is an aggravated felony. Id. § 1101(a)(43)(A). Therefore,

Garcia-Urbano’s conviction in Minnesota for criminal sexual conduct in the third

degree is an aggravated felony if it constitutes “sexual abuse of a minor” within the

meaning of the INA.

To determine whether an offense of conviction is an aggravated felony, we

look only to the elements of the criminal statute and apply the so-called categorical

approach. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1567-68 (2017). The

Minnesota statute at issue makes it a crime for an actor to engage in “sexual

penetration” with another when the other party is “at least 13 but less than 16 years

of age and the actor is more than 24 months older.” Minn. Stat. § 609.344, subdiv.

1(b). We must consider whether “the least of the acts criminalized by the state statute

falls within the generic federal definition of sexual abuse of a minor.” EsquivelQuintana, 137 S. Ct. at 1568. If so, then Garcia-Urbano was convicted of an

aggravated felony.

Congress did not define “sexual abuse of a minor,” and the Board has

interpreted the phrase through case-by-case adjudication. In this case, Garcia-Urbano

argued that his offense did not qualify because there was not enough difference in age

between him and the victim: he was eighteen, and she was fifteen. He further urged

that his offense was not sufficiently serious, because “[he] and his girlfriend

essentially had consensual sex (except that statutory provision prevents use of

1208.18. The immigration judge and the Board rejected these claims for relief, and

Garcia-Urbano does not seek review of the Board’s decision on those points.

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consent as a defense).” TheBoard rejected these contentions, concluding that “sexual

abuse of a minor” does not require a “meaningful age difference” between a

perpetrator and a victim under the age of sixteen, and that the state criminal offense

was sufficiently serious to qualify as an aggravated felony. The Board reasoned that

because the Minnesota statute “involves a younger adolescent victim who is between

the ages of 13 and 15 years old (a minor), and it requires sexual abuse (e.g.,

penetration), it constitutes ‘sexual abuse of a minor,’ under our definition.”

While Garcia-Urbano’s petition for review was pending with this court, the

Supreme Court decided Esquivel-Quintana. In determining whether statutory rape

under California law constituted “sexual abuse of a minor” under the INA, the Court

held “that in the context of statutory rape offenses focused solely on the age of the

participants,” the INA unambiguously requires the victim of sexual abuse to be

younger than sixteen years old. 137 S. Ct. at 1572-73. Because the California statute

encompassed victims who had turned sixteen, a conviction under that law did not

qualify as an aggravated felony. Id. The Minnesota statute at issue here, however,

requires a victim who is younger than sixteen, so the Board’s decision in this case is

not inconsistent with Esquivel-Quintana.

Garcia-Urbano raises different objectionsto counting hisMinnesota conviction

as an aggravated felony. He contends that the Minnesota statute encompasses

conduct that is not sufficiently serious to constitute “sexual abuse of a minor.” The

INA lists “sexual abuse of a minor” in the same subparagraph as “murder” and

“rape,” 8 U.S.C. § 1101(a)(43)(A), and theCourt in Esquivel-Quintana observed that

this structure “suggests that sexual abuse of a minor encompasses only especially

egregious felonies.” 135 S. Ct. at 1570. Garcia-Urbano argues that because the

Minnesota statute criminalizes what he describes as “consensual” sex between two

teenagers, the statute forbids conduct that is not particularly serious, and is thus

categorically overbroad.

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Garcia-Urbano’s proposed interpretation is contrary to the ordinary meaning

of “sexual abuse of a minor.” His theory that “sexual abuse of a minor” requires an

element ofseriousness beyond sexual penetration with a person too young to consent

would effectively remove from the INA’s purview all statutory rape offenses that are

based solely on the age of the participants. Yet when Congress added “sexual abuse

of a minor” to the INA in 1996, “the ordinarymeaning of ‘sexual abuse’ included ‘the

engaging in sexual contact with a person who is below a specified age or who is

incapable of giving consent because of age or mental or physical incapacity.’” Id. at

1569 (quoting Merriam-Webster’s Dictionary of Law 454 (1996)). By including

“sexual abuse of a minor” as an aggravated felony, Congress necessarily included

certain sexual conduct that is forbidden based solely on the age of the parties

involved. Garcia-Urbano’s definition of egregious misconduct therefore does not

align with the statute.

Alternatively, Garcia-Urbano argues that generic “sexual abuse of a minor”

requires an age differential of more than two years and a day between the perpetrator

and the victim. He urges that the definition of “sexual abuse of a minor” in the INA,

at least as it applies to statutory rape, should be derived from a provision of the

federal criminal code that requires a four-year age differential. See 18 U.S.C.

§ 2243(a)(2). Because Minn. Stat. § 609.344,subdiv. 1(b)requires an age differential

of just two-years and a day, Garcia-Urbano contends that the Minnesota statute is

categorically overbroad.

We conclude that the INA clearly refutes Garcia-Urbano’s position. In

Esquivel-Quintana, the Court declined to decide whether “sexual abuse of a minor”

requires any age difference between the perpetrator and the victim. Id. at 1572. But

the Court did provide some insight: any age differential in the generic federal offense

cannot “categorically exclude the statutory rape laws of most States.” Id. at 1571.

That result would “come close to nullifying” the effect of the term “sexual abuse of

a minor” in the INA. Id. (internal quotation omitted). For that reason, the Court

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declined to adopt the very definition from 18 U.S.C. § 2243(a) that Garcia-Urbano

advances.

Forsimilar reasons, we conclude that the generic offense cannot require an age

differential of more than two years and one day. The ordinary meaning of “sexual

abuse” in 1996 included engaging in sexual contact with a person who is below a

specified age. Adding an age-differential requirement that is greater than two years

and a day to the INA’s unambiguous rule that a victim must be younger than sixteen

years would eliminate from the generic offense the majority of age-based state

statutory rape offenses in effect when the federal provision was enacted. When

“sexual abuse of a minor” was added to the INA in 1996, the statutory rape laws of

sixteen States covered victims who were sixteen years of age or older. See EsquivelQuintana, 137 S. Ct. at 1576. At least another eleven statutes, including Minnesota’s,

did not require an age differential of greater than two years and a day.

2 Thus, if the

generic offense has an age differential of greater than two years and a day, statutory

rape based solely on the age of the participants in at least twenty-seven States would

not have constituted “sexual abuse of a minor” under the INA. An interpretation that

categorically excludes the age-based statutory rape laws of most States cannot be

correct, so we reject Garcia-Urbano’s position as inconsistent with the INA.

2

See Ala. Code §§ 13A-6-62(a)(1), 13A-6-70(c)(1) (LexisNexis 1996); Conn.

Gen. Stat. § 53a-71(a)(1) (LexisNexis 1996); Del. Code Ann. tit. 11, § 773(2)

(LexisNexis 1996); Kan. Stat. Ann. § 21-3504(a)(1) (LexisNexis 1996); Mass. Ann.

Laws ch. 265, § 23 (LexisNexis 1996); Mich. Comp. Laws Serv. § 750.520d(1)(a)

(LexisNexis 1996); Minn. Stat. § 609.344, subdiv. 1(b)(LexisNexis 1996); N.H. Rev.

Stat. Ann. § 632-A:3 (LexisNexis 1996); Okla. Stat. tit. 21, § 1111(A)(1) (LexisNexis

1996); S.C. Code Ann. § 16-3-655(2) (LexisNexis 1996); Vt. Stat. Ann. tit. 13,

§ 3252(a)(3) (LexisNexis 1996). Rhode Island’s statute would be twelfth if “over the

age of eighteen” includes an offender on his or her eighteenth birthday. See R.I. Gen.

Laws § 11-37-6 (LexisNexis 1996).

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Minnesota criminal sexual conduct in the third degree has the following

elements: (1) sexual penetration, (2) with person under sixteen and over thirteen

years of age, (3) by a person who is more than twenty-four months older. Minn. Stat.

§ 609.344, subdiv. 1(b). We conclude that a person convicted under that statute

necessarily has committed “sexual abuse of a minor” within the meaning of the INA.

Accordingly, the Board properly concluded thatGarcia-Urbano is both removable and

ineligible for asylum.

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For the foregoing reasons, the petition for review is denied.

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