FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRENEO P. PARRILLA, 

Petitioner, No. 03-74010

v. Agency No.  A73-159-170 ALBERTO R. GONZALES*, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 11, 2005—Seattle, Washington

Filed July 11, 2005

Before: Ferdinand F. Fernandez, A. Wallace Tashima, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould;

Partial Concurrence and Partial Dissent by Judge Fernandez

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2). 

8019
COUNSEL

Antonio Salazar, Salazar Law Office, Seattle, Washington, for

the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,

U.S. Department of Justice, M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, Bryan S.

Beier, Trial Attorney, Washington, D.C., for the respondent.

8022 PARRILLA v. GONZALES
OPINION

GOULD, Circuit Judge: 

Ireneo Parrilla petitions for review of the decision of the

Board of Immigration Appeals (BIA) denying his application

for cancellation of removal. The BIA determined that Parrilla

was ineligible for cancellation pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(iii) because his conviction for communicating with a minor for immoral purposes under Washington

Revised Code section 9.68A.090 was an aggravated felony

that met the definition of “sexual abuse of a minor.” 8 U.S.C.

§ 1101(a)(43)(A). Although we hold that section 9.68A.090

did not categorically proscribe “sexual abuse of a minor,” the

government provided an information, a guilty plea and a Certification for Determination of Probable Cause that allow us

to conclude, under the modified categorical approach, that

Parrilla committed an offense rendering him ineligible for

cancellation of removal. We have jurisdiction pursuant to 8

U.S.C. § 1252(a), Fernandez-Ruiz v. Gonzales, 410 F.3d 585

(9th Cir. 2005), and we deny the petition for review. 

I

Ireneo Parrilla, a citizen of the Philippines, entered the

United States on an H-1A non-immigrant healthcare worker

visa in 1994. He adjusted his status to that of a lawful permanent resident in 1995. 

On January 17, 2001, Parrilla was arrested and charged

with Child Molestation in the First Degree in violation of

Washington Revised Code section 9A.44.083. The information filed with respect to this charge incorporated a Certification for Determination of Probable Cause (hereinafter CDPC).

The CDPC described the December 25, 2000 molestation of

a seven-year-old girl and stated that Parrilla “repeatedly

reached inside [the victim’s] dress and touched her between

her legs where she goes to the bathroom on top of her underPARRILLA v. GONZALES 8023
wear.” It also specified that the victim’s mother had witnessed

part of the molestation, that Parrilla had been intoxicated at

the time of the assault, and that Parrilla had apologized for his

conduct. 

The record indicates that Parrilla and the prosecution

reached a plea agreement. The prosecution withdrew the original information and instead filed a First Amended Information that stated: 

I, Norm Maleng, Prosecuting Attorney for King

County in the name and by the authority of the state

of Washington, by this Amended Information do

accuse the defendant(s) of the crime of communication with a minor for immoral purposes. 

That the defendant, Ireneo Parilla [sic], in King

County, Washington, (on or about) the 25th day of

December, 2000, did communicate with [the victim],

a child under the age of 18 years, for immoral purpose of a sexual nature, [c]ontrary to RCW

9.68A.090, and against the peace and dignity of the

state of Washington. 

Parrilla then pled guilty. His written guilty plea stated in

part, “I understand the Court will review the certification for

determination of probable cause in determining if there is a

factual basis for this plea and for sentencing.” Based on his

guilty plea, Parrilla was convicted of communicating with a

minor for immoral purposes in violation of Washington

Revised Code section 9.68A.090 on April 12, 2002. 

The Department of Homeland Security then initiated deportation proceedings. The Immigration Judge found that section

9.68A.090 did not categorically prohibit “sexual abuse of a

minor,” but that the First Amended Information, the CDPC,

and the guilty plea together established that Parrilla was guilty

of an aggravated felony involving “sexual abuse of a minor”

8024 PARRILLA v. GONZALES
under the modified categorical approach. The BIA affirmed in

a reasoned decision, holding that:

An offense may qualify as “sexual abuse of a minor”

under section [1101(a)(43)(A)] of the Act if it

involves “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in,

or assist another person to engage in, sexually

explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children,

or incest with children.” 

The BIA reasoned that the conviction under section

9.68A.090 rendered Parrilla ineligible for cancellation of

removal under both the categorical and the modified categorical approaches. Parrilla petitions for review of this decision.

II

In general, an alien is barred from cancellation of removal

if he or she has been convicted of an aggravated felony under

8 U.S.C. § 1227(a)(2)(A)(iii). One type of aggravated felony

is “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). 

We review de novo whether an alien has been convicted of

an aggravated felony, Ruiz-Morales v. Ashcroft, 361 F.3d

1219, 1221 (9th Cir. 2004), but our review is subject to established principles of deference to administrative agencies, INS

v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); MurilloEspinoza v. INS, 261 F.3d 771, 773 (9th Cir. 2001). When

interpreting a provision of the Immigration and Nationality

Act (INA), we must defer to the BIA if the statute is silent or

ambiguous with respect to the specific issue before the agency

and the BIA’s interpretation is “ ‘based on a permissible construction of the statute.’ ” Aguirre-Aguirre, 526 U.S. at 424

(quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 843 (1984)). We do not, however, defer

to BIA interpretations of either state law, Garcia-Lopez v.

PARRILLA v. GONZALES 8025
Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003), or provisions of

the federal criminal code that are referenced within, but not

part of, the INA, Singh v. Ashcroft, 386 F.3d 1228, 1230-31

(9th Cir. 2004). 

[1] In this case, 8 U.S.C. § 1101(a)(43)(A) does not define

the term “sexual abuse of a minor” by reference to state law

or to another portion of the U.S. Code; in fact,

§ 1101(a)(43)(A) does not define “sexual abuse of a minor”

at all. Because the INA is silent on the meaning of “sexual

abuse of a minor,” we ask whether the definition provided by

the BIA “ ‘is based on a permissible construction of the statute.’ ” Aguirre-Aguirre, 526 U.S. at 424 (quoting Chevron,

467 U.S. at 843). The BIA opinion interpreted “sexual abuse

of a minor” to mean any offense that “involves ‘the employment, use, persuasion, inducement, enticement, or coercion of

a child to engage in, or assist another person to engage in,

sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest

with children.’ ” Because this language is not clearly contrary

to the plain meaning of the statute, we defer to the BIA’s

interpretation. See id.

[2] The definition the BIA employed in this case accords

with our case law. In United States v. Pallares-Galan we held

that a conviction for annoying or molesting a child under the

age of eighteen was not “sexual abuse of a minor,” even

though the state courts had interpreted the statute to require

that the perpetrator be motivated by an abnormal sexual interest in children. 359 F.3d 1088, 1100-02 (9th Cir. 2004). In

reaching our conclusion that the fact of conviction did not

show “sexual abuse of a minor,” we stated, “ ‘[a]buse’

requires more than improper motivation; it requires conduct

that is abusive.” Id. at 1101-02. Consistent with this principle,

we have held that “sexual abuse of a minor” encompasses

both lewdness with a child under the age of fourteen, CedanoViera, 324 F.3d at 1065-66, and a lewd or lascivious act

including any part of the body of a child under the age of

8026 PARRILLA v. GONZALES
fourteen, United States v. Baron-Medina, 187 F.3d 1144,

1146-47 (9th Cir. 1999). 

In inquiring into whether an offense is an aggravated felony, of which “sexual abuse of a minor” is one statutorily designated type, we first consider the categorical approach. See

Taylor v. United States, 495 U.S. 575, 600-02 (1990). Under

the categorical approach, an offense meets the definition of

“sexual abuse of a minor” only if any and all conduct proscribed by the criminal statute of conviction falls within that

category. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002).

If the statute that led to the prior conviction does not categorically prohibit “sexual abuse of a minor,” we next consider the

modified categorical approach. Shepard v. United States, 125

S. Ct. 1254, 1259-60 (2005). Under the modified categorical

approach, we may consider a limited number of judicially

noticeable documents to determine whether, although the statute of conviction is overinclusive, the defendant was in fact

convicted of a crime that met the definition of “sexual abuse

of a minor.” Id.; Lara-Chacon v. Ashcroft, 345 F.3d 1148,

1153 (9th Cir. 2003). 

A

[3] We first consider whether Washington Revised Code

section 9.68A.090 categorically covered conduct that is “sexual abuse of a minor” as the BIA has defined that term.1

Under the categorical approach, we may “look only to the fact

of conviction and the statutory definition of the prior offense.”

Taylor, 495 U.S. at 602; Ruiz-Morales, 361 F.3d at 1221-22.

[4] In 2002, Parrilla was convicted of violating Washington

Revised Code section 9.68A.090, which, at that time, stated:

1Since the date of Parrilla’s conviction, the State of Washington has

amended section 9.68A.090. 

PARRILLA v. GONZALES 8027
A person who communicates with a minor for

immoral purposes is guilty of a gross misdemeanor,

unless that person has previously been convicted

under this section or of a felony sexual offense under

chapter 9.68A, 9A.44, or 9A.64 RCW or of any

other felony sexual offense in this or any other state,

in which case the person is guilty of a class C felony

punishable under chapter 9A.20 RCW. 

Wash. Rev. Code § 9.68A.090 (2000) (current version at

Wash. Rev. Code § 9.68A.090 (2003 & Supp. 2005)). The

Washington State Supreme Court interpreted this language to

prohibit, “any spoken word or course of conduct with a minor

for purposes of sexual misconduct.” State v. Schimmelpfennig,

594 P.2d 442, 447 (Wash. 1979). The statute proscribed communications related to “the rather broad area of ‘sexual misconduct,’ ” including offenses throughout the Washington

Revised Code, State v. McNallie, 846 P.2d 1358, 1363 (Wash.

1993), but did not prohibit communicating with a minor

regarding sexual conduct that would have been legal if performed, State v. Luther, 830 P.2d 674, 676 (Wash. Ct. App.

1992). 

[5] The 2002 version of section 9.68A.090 was not a categorical match with “sexual abuse of a minor.” Some of the

conduct prohibited by section 9.68A.090 “involve[d] ‘the

employment, use, persuasion, inducement, enticement, or

coercion of a child to engage in, or assist another person to

engage in, sexually explicit conduct or the rape, molestation,

prostitution, or other form of sexual exploitation of children,

or incest with children.’ ” See, e.g., McNallie, 846 P.2d at

1364; State v. Pietrzak, 997 P.2d 947, 949-50 (Wash. Ct. App.

2000); State v. Falco, 796 P.2d 796, 797 (Wash. Ct. App.

1990). However, Washington law makes clear that the reach

of section 9.68A.090 was not limited to only abusive offenses.

Among the “immoral purposes” contained in Chapter 9.68

and elsewhere in the Washington Revised Code were offenses

that did not fall within the definition of “sexual abuse of a

8028 PARRILLA v. GONZALES
minor” as the BIA interpreted that term in its opinion. See,

e.g., Wash. Rev. Code § 9.68.030 (providing information on

how to get an unlawful abortion); id. § 9.68.130 (displaying

pornography visible from a public thoroughfare); id.

§ 9.68A.150 (allowing a minor onto the premises of a live

erotic performance). Although conduct such as talking to a

minor for the purpose of allowing him or her into a live erotic

performance is not commendable, neither is it “abusive” as

our precedent has explained that term. See Pallares-Galan,

359 F.3d at 1101-02. We hold that the 2002 version of section

9.68A.090 did not define “sexual abuse of a minor” under the

categorical approach. 

B

[6] The government also contends that the conduct proscribed by section 9.68A.090 fell within the definition of an

“attempt . . . to commit” an offense constituting “sexual abuse

of a minor.” 8 U.S.C. § 1101(43)(A), (U). We reject this argument because, even granting the premise that “communication” necessarily equates to “attempt,” some of the “immoral

purposes” proscribed in the Washington Revised Code do not

fall within the definition of “sexual abuse of a minor.” See,

e.g., Wash. Rev. Code §§ 9.68.030, 9.68.130, 9.68A.150. The

2002 language of section 9.68A.090 reached beyond conduct

that could be “sexual abuse of a minor,” whether we consider

a completed offense or an attempt. We thus hold that section

9.68A.090 did not describe “sexual abuse of a minor” under

the categorical approach, and that the BIA erred in concluding

otherwise. We next turn to an assessment of Parrilla’s statecourt conviction as it is described in the First Amended Information, the guilty plea, and the CDPC.

III

Under the modified categorical approach, we consider

whether the government has produced judicially noticeable

documents that allow us to conclude that, although some

PARRILLA v. GONZALES 8029
offenses under section 9.68A.090 did not meet the definition

of “sexual abuse of a minor,” the specific offense of which

Parrilla was convicted fell within this category. 

[7] The purpose of the modified categorical approach is “to

make the requisite determination respecting the nature of a

prior conviction without resorting to the type of mini-trials we

deem to be wholly inappropriate in this context.” Tokatly v.

Ashcroft, 371 F.3d 613, 621 (9th Cir. 2004). In keeping with

this purpose, under the modified categorical approach, our

inquiry is “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.” Shepard, 125 S. Ct.

at 1257; Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th

Cir. 2003) (summarizing documents that may be used under

the modified categorical approach); United States v. Franklin,

235 F.3d 1165, 1168-73 (9th Cir. 2000) (same). An information and a guilty plea, considered together, are generally sufficient. United States v. Bonat, 106 F.3d 1472, 1477 (9th Cir.

1997). Documents and testimony that would require us to

make factual determinations that were not necessarily made in

the prior criminal proceeding lie outside the scope of our

inquiry under the modified categorical approach. Tokatly, 371

F.3d at 623-24 (testimony of a crime victim); Lara-Chacon,

345 F.3d at 1153-54 (a pre-sentencing report); United States

v. Melton, 344 F.3d 1021, 1029 n.4 (9th Cir. 2003) (police

affidavit establishing probable cause). 

Although police reports and complaint applications, standing alone, may not be used to enhance a sentence following

a criminal conviction, Shepard, 125 S. Ct. at 1257, 1259-60,

the contents of these documents may be considered if specifically incorporated into the guilty plea or admitted by a defendant. United States v. Smith, 390 F.3d 661, 664-65 (9th Cir.

2004) (approving use of “the factual basis for the charge, as

set forth by the prosecutor at the change of plea hearing” to

which “defense counsel did not object”); United States v.

8030 PARRILLA v. GONZALES
Lopez-Patino, 391 F.3d 1034, 1037-38 (9th Cir. 2004)

(admissions the defendant made at his plea colloquy); Ferreira v. Ashcroft, 390 F.3d 1091, 1098-1100 (9th Cir. 2004)

(restitution order referenced in a plea agreement). These precedents on the significance of statements and submissions

made or admitted by a defendant in pleading guilty, taken

from both criminal and immigration contexts, are persuasive

to our resolution of this case. 

[8] Here, the record of conviction in Washington state court

includes both a form information, which recites the bare elements of section 9.68A.090, and a guilty plea, in which Parrilla expressly states, “I understand the Court will review the

certification for determination of probable cause in determining if there is a factual basis for this plea and for sentencing.”

The referenced CDPC in turn had reported that Parrilla “repeatedly reached inside [the victim’s] dress and touched her

between her legs where she goes to the bathroom on top of

her underwear.” We conclude that, by explicitly incorporating

the CDPC into his guilty plea, Parrilla in context admitted the

facts in the CDPC and rendered it judicially noticeable for the

purpose of applying the modified categorical approach. See

Ferreira, 390 F.3d at 1098-1101. The CDPC here is not

merely a bare police report, cf. Shepard, 125 S. Ct. at 1258-

59, but is rather an explicit statement “in which the factual

basis for the plea was confirmed by the defendant.” Id. at

1263. In light of Parrilla’s incorporation of the CDPC in his

guilty plea, relying upon the CDPC to establish the elements

of the crime to which Parrilla pled guilty does not undermine

the purposes of our limited modified categorical inquiry. See

Smith, 390 F.3d at 664-65; Tokatly, 371 F.3d at 621. 

[9] Considering the First Amended Information and the

guilty plea, including the incorporated CDPC, we conclude

that “repeatedly reach[ing] inside [a seven year old’s] dress

and touch[ing] her between her legs where she goes to the

bathroom on top of her underwear” meets the definition of an

aggravated felony involving “sexual abuse of a minor” under

PARRILLA v. GONZALES 8031
8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). Such conduct

“involves ‘the employment . . . of a child to engage in . . .

molestation.’ ” We accordingly conclude that Parrilla is ineligible for cancellation of removal and deny the petition for

review. Id.

DENIED.

FERNANDEZ, Circuit Judge, concurring and dissenting: 

In my view, Washington Revised Code § 9.68A.090 categorically prohibited sexual abuse of a minor within the meaning of 8 U.S.C. § 1101(a)(43)(A). That is, in my opinion, the

Washington courts have placed a sufficiently narrowing construction on what might otherwise have been an overbroad

statute for our purposes. See State v. McNallie, 846 P.2d

1358, 1364 (Wash. 1993); State v. Wissing, 833 P.2d 424, 429

(Wash Ct. App. 1992); State v. Luther, 830 P.2d 674, 675—

76 (Wash. Ct. App. 1992). 

In addition, because, as the above cases indicate, Washington law requires that communication be for the purpose of

actually involving a child in sexual misconduct, I do not

believe that giving information about an abortion, unlawful or

not, or making pornographic photography visible to the public, or allowing entry to an erotic performance business comes

within the meaning of communication with a minor for

immoral purposes. 

Thus, I do not agree with parts II A and B of the majority

opinion, and dissent in that respect. However, I do concur in

the remainder of the opinion and in the result. 

Therefore, with the exception noted, I concur in the excellent majority opinion.

8032 PARRILLA v. GONZALES