FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYSZARD KAZIMIENZ REBILAS, a.k.a.  No. 05-76988

Richard Rebilas, Agency No.

Petitioner, A13-935-483

v.  ORDER

MICHAEL B. MUKASEY,* Attorney AMENDING

General, OPINION AND

Respondent. AMENDED

OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 15, 2007—San Francisco, California

Filed November 2, 2007

Amended May 16, 2008

Before: Michael Daly Hawkins, Sidney R. Thomas, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

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

App. P. 43(c)(2). 

5691
COUNSEL

Sarnata Reynolds, Esq., Berkeley, California, David Assar,

Esq., Asser Law Group, Phoenix, Arizona, and Ali Saidi,

Esq., Berkeley, California, for the petitioner. 

Peter D. Keisler, Esq., John C. Cunningham, Esq., Norah

Ascoli Schwarz, Esq., Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C., for the respondent. 

ORDER

The motion to amend the opinion is granted in part. The

opinion issued on November 2, 2007, Rebilas v. Keisler, 506

F.3d 1161 (9th Cir. 2007), is amended as follows: 

We delete the paragraph on page 1164 that currently reads:

REBILAS v. MUKASEY 5693
Not only is ARS § 13-1403(B) broader than the federal definition of sexual abuse of a minor, but Arizona’s definition of attempt under ARS § 13-1001 is

broader than the federal definition of attempt. While

the federal definition of attempt requires the defendant to commit an overt act constituting a substantial

step towards the crime, United States v. MoralesPerez, 467 F.3d 1219, 1222 (9th Cir. 2006), Arizona’s definition of attempt is satisfied if the defendant

“[i]ntentionally does or omits to do anything which

. . . is any step” in the crime. ARS § 13-1001(A)(2)

(emphasis added); see State v. Fristoe, 135 Ariz. 25,

658 P. 2d 825, 829-30 (App. 1982). Thus, attempted

public sexual indecency to a minor under Arizona

law is broader than attempted sexual abuse of a

minor under § 1101(a)(43)(A) and (U). 

Rebilas, 506 F.3d at 1164. In its place, we substitute the following paragraph:

To hold that Rebilas’s conviction was categorically

a conviction for attempted sexual abuse of a minor

under 8 U.S.C. § 1101(a)(43)(A) and (U), we would

have to hold not only that Arizona’s definition of

public sexual indecency to a minor under ARS § 13-

1403(B) was categorically sexual abuse of a minor,

but also that Arizona’s definition of attempt under

ARS §§ 13-1001 was a categorical match with the

federal definition of attempt. This would require a

second Taylor analysis, comparing the elements of

attempt under Arizona law and the elements of

attempt under 8 U.S.C. § 1101(a)(43)(U). Because

we hold that public sexual indecency to a minor

under ARS § 13-1001 is not categorically sexual

abuse of a minor under 8 U.S.C. § 1101(a)(43)(A),

we need not engage in that analysis here. 

No further filings will be accepted in this closed case.

5694 REBILAS v. MUKASEY
OPINION

BEA, Circuit Judge:

Petitioner Ryszard Kazimienz Rebilas (“Rebilas”), a native

and citizen of Poland, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision denying petitioner’s

motion for reconsideration of the BIA’s earlier holding that

petitioner’s conviction for two counts of “attempted public

sexual indecency to a minor” under Arizona Revised Statutes

(“ARS”) §§ 13-1001 and 13-1403(B) constituted sexual abuse

of a minor and attempted sexual abuse of a minor under 8

U.S.C. § 1101(a)(43)(A) and (U). As such, petitioner was

found by the BIA to be removable as an aggravated felon

under 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii). Petitioner

was ordered removed and is in custody awaiting removal. 

We grant the petition for review, and hold that Arizona’s

statutory definition of attempted public sexual indecency to a

minor under ARS §§ 13-1001 and 13-1403(B) includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and

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

(1990). 

Because Rebilas has raised a colorable legal question as to

whether his conviction constitutes an aggravated felony, we

have jurisdiction under the REAL ID Act, 8 U.S.C.

§ 1252(a)(2)(D), to resolve the issue. Parrilla v. Gonzales,

414 F.3d 1038, 1040-41 (9th Cir. 2005). 

We review the BIA’s denial of a motion to reconsider for

abuse of discretion, see Cano-Merida v. INS, 311 F.3d 960,

964 (9th Cir. 2002), and we review the BIA’s determination

of issues of law de novo, deferring to the BIA’s interpretation

of an immigration statute where that interpretation is “based

on a permissible construction of the statute.” Parrilla, 414

F.3d at 1041. This includes the definition of “sexual abuse of

REBILAS v. MUKASEY 5695
a minor” for purposes of 8 U.S.C. § 1101(a)(43)(A) and (U).

Id. 

Under the Taylor categorical approach, this court must look

to “the ordinary case” that is prosecuted by the state, not some

extreme hypothetical. James v. United States, 127 S. Ct. 1586,

1597 (2007). Here, there was no evidence submitted, nor

cases cited, about what types of conduct are ordinarily prosecuted under ARS § 13-1403(B). See Gonzales v. DuenasAlvarez, 127 S. Ct. 815, 822 (2007) (explaining that an

offender “must at least point to his own case or other cases in

which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.”). 

Rather than speculate about what conduct Arizona prosecutes under this statute, we examine Arizona cases where an

offender’s conviction under ARS § 13-1403(B) for sexual

contact was upheld to see if any of these convictions were

based on conduct that would not violate the federal generic

crime. Arizona v. Malott, 821 P.2d 179 (Ariz. App. 1991) falls

in that category. 

[1] First, under ARS § 13-1403(B), the minor involved

does not need to be touched, nor does the minor even need to

be aware of the offender’s conduct. The minor simply needs

to be present. When the minor is unaware of the offender’s

conduct, the minor has not been “abused” as that term is commonly or generically defined, because the minor has not been

physically or psychologically harmed. See United States v.

Baza-Martinez, 464 F.3d 1010, 1012-16 (9th Cir. 2006)

(defining abuse as “physical or psychological harm”). Thus,

where the minor is not touched by the defendant and is

unaware of a defendant’s indecent conduct, that conduct may

not fall within the federal generic definition of sexual abuse

of a minor because the minor’s ignorance may obviate any

psychological harm. See id. at 1015-17; see also Stubbs v.

Attorney General, 452 F.3d 251, 255-56 (3d Cir. 2006).

Malott, where the children slept through the entire encounter

5696 REBILAS v. MUKASEY
between the offender and their mother, is the textbook example of a conviction for attempted public sexual indecency to

a minor that demonstrates this principle. Malott, 821 P.2d at

180-81. 

In Malott, the defendant’s conviction for public sexual

indecency to a minor under ARS § 13-1403(B) by sexual contact was upheld where a woman woke to find the defendant

in her bedroom naked and masturbating.1 The woman’s two

children were also in the room, but they did not wake during

the incident. Although a minor must be in the presence of the

offender, the minor need not be aware of the offender’s

actions for the statute to apply. See Arizona v. Jannamon, 819

P.2d 1021, 1023-25 (Ariz. App. 1991) (affirming defendant’s

conviction under ARS § 13-1403(B), where the defendant

masturbated in a movie theater while sitting next to a girl,

who did not realize what she had witnessed until after defendant left). 

The court in Malott held that a violation of ARS § 13-

1403(B) for public sexual indecency to a minor “is committed

if the defendant is reckless about whether a minor under 15

is ‘in view or at hand’ regardless of whether the minor actually witnesses the act.” 821 P.2d at 181. 

[2] Second, ARS § 13-1403(B) requires only that the

offender have been “reckless” about whether a minor under

the age of fifteen years is present. The offender does not need

to know for certain that another person is present. Therefore,

the offender’s actions do not need to involve “the employment, use, persuasion, inducement, enticement, or coercion of

a child.” See Parrilla, 414 F.3d at 1041 (deferring to the

BIA’s permissible definition of sexual abuse of a minor where

the BIA adopted the definition contained in 18 U.S.C.

§ 3509(a)(8)). 

1Under ARS § 13-1403(B), masturbation constitutes sexual contact. The

offender need not touch the minor to violate ARS § 13-1403(B). See Arizona v. Williams, 99 P.3d 43, 45 (Ariz. App. 2004). 

REBILAS v. MUKASEY 5697
In Parrilla, this court held that a petitioner’s conviction

under Washington Revised Code § 9.68A.090 for communicating with a minor for immoral purposes was not categorically sexual abuse of a minor under 8 U.S.C.

§ 1101(a)(43)(A) because the Washington law “was not limited to only abusive offenses.” Parrilla, 414 F.3d at 1043.

This court found that under the Washington law, a defendant

could be guilty simply by inviting a minor to watch an erotic

performance. Such conduct would not categorically constitute

sexual abuse of a minor. 

To hold that Rebilas’s conviction was categorically a conviction for attempted sexual abuse of a minor under 8 U.S.C.

§ 1101(a)(43)(A) and (U), we would have to hold not only

that Arizona’s definition of public sexual indecency to a

minor under ARS § 13-1403(B) was categorically sexual

abuse of a minor, but also that Arizona’s definition of attempt

under ARS §§ 13-1001 was a categorical match with the federal definition of attempt. This would require a second Taylor

analysis, comparing the elements of attempt under Arizona

law and the elements of attempt under 8 U.S.C.

§ 1101(a)(43)(U). Because we hold that public sexual indecency to a minor under ARS § 13-1001 is not categorically

sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), we

need not engage in that analysis here. 

In cases where, as here, the full range of conduct covered

by the statute of conviction includes conduct that does not fall

within the generic meaning of sexual abuse of a minor, we

then employ the modified categorical approach. Shepard v.

United States, 544 U.S. 13, 25 (2005) (plurality opinion);

Estrada-Espinoza v. Gonzales, 498 F.3d 933, 935 (9th Cir.

2007) (per curiam). Under this approach, a court may generally consider only “the terms of the charging document, the

terms of a plea agreement or transcript of colloquy between

judge and defendant in which the factual basis for the plea

was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26

5698 REBILAS v. MUKASEY
(majority opinion). Here, the only relevant documents of conviction in the record are the indictment, the plea agreement

and the judgment of conviction. 

[3] The indictment charges Rebilas with committing two

counts of public indecency to a minor. Both counts state that

“Rebilas, on or about the 21st day of June, 2003, in the presence of [a minor], intentionally or knowingly engaged in an

act of sexual contact and was reckless about whether a minor

under the age of fifteen years was present.” As stated above,

a defendant who violates ARS § 13-1403(B) by “sexual contact” may do so with conduct that does not meet the generic

definition of sexual abuse of a minor. Therefore, the information contained in the indictment does not change the analysis.

[4] Neither the judgment of conviction nor the plea agreement contains the factual basis for the crime. The plea colloquy was not admitted into this record. The pre-sentence

report, which does appear in the record, contains factual allegations of the crime, but the pre-sentence report is not one of

the documents we can consider when conducting a modified

categorical approach. United States v. Corona-Sanchez, 291

F.3d 1201, 1212 (9th Cir. 2002) (en banc) (holding that the

pre-sentence report alone may not be used to determine the

facts supporting a petitioner’s guilty plea under the modified

categorical approach if the sources of the facts therein are not

“identified, acceptable” sources). Therefore, there are no relevant documents of conviction which provide facts establishing Rebilas was convicted of an offense constituting

attempted sexual abuse of a minor under 8 U.S.C.

§ 1101(a)(43)(A) and (U). 

[5] We hold Rebilas’ conviction for attempted public sexual indecency to a minor under ARS §§ 13-1001, 13-1403(B)

does not constitute an attempt to commit the sexual abuse of

a minor under 8 U.S.C. § 1101(a)(43)(A) and (U), under

either the categorical or modified categorical approach. 

REBILAS v. MUKASEY 5699
Accordingly, we grant the petition for review, and order the

government to release Rebilas. 

PETITION GRANTED.

5700 REBILAS v. MUKASEY