12 No. 12

‐ 2353

P OSNER

, Circuit Judge

, dissenting. The ground on which

the petitioner was denied cancellation of removal (he does

not deny that he was removable, because of a conviction for

harassment and for violating an order of protection, see 8

U.S.C. §§ 1227(a)(2)(E)(i), (ii)) was that he had been convict

‐

ed in California in 2005 of engaging in sexual intercourse

with a girl who was not yet 18 and was more than three

years younger than he. Cal. Penal Code § 261.5(c). She was in

fact 15 and he 18, but the Board of Immigration Appeals did

not consider the ages of either party to the sexual relation

‐ ship. It relied entirely on the fact that the girl was under 18

and he more than three years older. She could have been one

day short of her eighteenth birthday on the day when the

relationship began and that day could have been his twenty

‐

first birthday. The crime was punished as a misdemeanor

under California law and according to his uncontradicted

affidavit his only punishment was unsupervised probation.

The crime was reported by the girl’s father and the defend

‐

ant pleaded guilty on his nineteenth birthday; the sexual re

‐ lationship had been brief and consensual; that is another fact

the Board ignored.

Now 28 years old, the petitioner has lived in the United

States since the age of 14 and is a lawful permanent resident.

The immigration judge said that “there are some extremely

strong equities in this case.” But the immigration statute pre

‐

cludes cancellation of removal of an alien who has been con

‐

victed of an “aggravated felony,” defined (for this purpose)

as including “murder, rape, or sexual abuse of a minor,” 8

U.S.C. § 1101(a)(43)(A), and the immigration judge ruled

that the California misdemeanor was “sexual abuse of a mi

‐No. 12

‐ 2353 13

nor” and therefore a categorical bar to cancellation of re

‐

moval. The Board of Immigration Appeals affirmed.

So what is “sexual abuse of a minor”? We are obliged to

give some deference to the Board’s definition of a term ap

‐ pearing in the immigration statutes. INS v. Aguirre

‐ Aguirre

,

526 U.S. 415, 424–25 (1999); Arobelidze v. Holder

, 653 F.3d 513,

519–20 (7th Cir. 2011)

. But the Board has not defined “sexual

abuse of a minor.” True, it said in this case, quoting In re Ro

‐ driguez

‐ Rodriguez

, 22 I&N Dec. 991, 995 (BIA 1999) (en banc),

that it has defined the term—defined it “as encompassing

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 con

‐

duct or the rape, molestation, prostitution, or other form of

sexual exploitation of children, or incest with children.’”

Rejecting a very narrow definition (advocated by Rodri

‐

guez

‐ Rodriguez) of “sexual abuse of a minor” elsewhere in

the federal criminal code, see 18 U.S.C. § 2243, the Board in

his case had taken the definition verbatim from a provision

of the federal criminal code that defines the rights of child

victims as witnesses. 18 U.S.C. § 3509(a)(8); see also 18 U.S.C.

§ 3509(a)(9), defining “sexually explicit conduct” very broad

‐ ly. Read literally, the definition would encompass the peti

‐

tioner’s misdemeanor, because obviously he induced the girl

to have sex with him. So if Rodriguez

‐ Rodriguez had adopted

the definition in section 3509(a)(8), as the Board in the pre

‐

sent case said it had done (while also saying, as we’ll see,

that it hadn’t), as the definition of “sexual abuse of a minor”

in the immigration statute, that would be the end of this

case. But Rodriguez

‐ Rodriguez had gone on to say that “in de

‐ fining the term ‘sexual abuse of a minor,’ we are not obliged14 No. 12

‐ 2353

to adopt a federal or state statutory provision” and “we are

not adopting this statute as a definitive standard or defini

‐

tion but invoke it as a guide in identifying the types of

crimes we would consider to be sexual abuse of a minor.” 22

I&N Dec. at 994, 996. In other words, the Board found the

definition useful given the facts of the Rodriguez

‐ Rodriguez

case (which are very different from the facts of the present

case), but did not adopt it as the canonical definition of

“sexual abuse of a minor.”

The Board in this case added that to derive the meaning

of the words “sexual,” “minor,” and “abuse” in the aggra

‐

vated

‐ felony provision of the immigration statute it would

look to the “ordinary, contemporary, and common meaning

of the words” (and for this it cited our decision in Espinoza

‐

Franco v. Ashcroft

, 394 F.3d 461, 464–65 (7th Cir. 2005), quot

‐ ing United States v. Martinez

‐ Carillo

, 250 F.3d 1101, 1104 (7th

Cir. 2001)). So neither in this case nor in Rodriguez

‐ Rodriguez

did the Board adopt either the definition in the federal crim

‐

inal code or an alternative definition.

In Rodriguez

‐ Rodriguez the specific offense of which the

petitioner had been convicted was “indecency with a child

by exposure” in violation of Texas law, and the Board point

‐

ed to “the severity of the penalty” that the petitioner had re

‐

ceived—10 years’ imprisonment, the statutory maximum—

as “demonstrat[ing] that Texas considers the crime to be se

‐

rious.

... In consideration of these factors, [the Board found]

that indecent exposure in the presence of a child by one in

‐

tent on sexual arousal is clearly sexual abuse of a minor

within the meaning of” the immigration statute. 22 I&N Dec.

at 996.No. 12

‐ 2353 15

So Rodriguez

‐ Rodriguez did not define “sexual abuse of a

minor” in the immigration statute to encompass every crimi

‐

nal sexual activity involving a minor, as section 3509(a)(8) of

the federal criminal code seems to do. Instead it gave rea

‐

sons pertinent to the case before it, in particular the severity

of the punishment meted out by the state court, for conclud

‐ ing that the petitioner’s particular criminal offense had been

serious enough to merit designation as sexual abuse of a mi

‐

nor for purposes of immigration law. In the present case the

Board gave no reason for its similar, but less plausible, con

‐

clusion. Given the language it quoted in this case from the

earlier decision, it couldn’t have thought that Rodriguez

‐ Rodriguez had adopted the text of section 3509(a)(8) as the

definition of “sexual abuse of a minor” in the immigration

statute. But if it did think Rodriguez

‐ Rodriguez had done that,

it was wrong, was therefore misapplying Board precedent,

and for that reason (among others) its decision could not

stand. Huang v. Mukasey

, 534 F.3d 618, 620 (7th Cir. 2008);

Ssali v. Gonzales

, 424 F.3d 556, 564–66 (7th Cir. 2005); Hernan

‐

dez v. Ashcroft

, 345 F.3d 824, 846–47 (9th Cir. 2003). Treating

the federal statute as merely a guide obliged the Board in

this case to go beyond the definition of sexual abuse in the

federal criminal code, and it failed to do that, the critical

omission being a failure to consider the gravity of the peti

‐

tioner’s crime and punishment in relation to the crime and

punishment in Rodriguez

‐ Rodriguez

.

Characteristically (see, e.g., Benitez Ramos v. Holder

, 589

F.3d 426, 430 (7th Cir. 2009) ; Miljkovic v. Ashcroft

, 376 F.3d

754, 756–57 (7th Cir. 2004)), the Justice Department tries to

remedy the deficiencies of the Board’s analysis by supplying

reasons (including references to social science data) for why

the petitioner’s offense should be regarded as grave; in do

‐16 No. 12

‐ 2353

ing so the Department flouts SEC v. Chenery Corp

., 318 U.S.

80 (1943).

The inadequacy of the Board’s analysis would not be fa

‐

tal if the correctness of the conclusion could not be ques

‐

tioned (for then the Board’s error would be harmless). It

could not be questioned if, for example, the petitioner had

been convicted of a violent rape. But voluntary sexual inter

‐

course between a just

‐ turned 21 year old and an about

‐ to

‐

turn 18 year old (the premise of the Board’s opinion, for it

declined to consider the actual facts of the petitioner’s mis

‐ demeanor) is illegal in only eight states. The petitioner’s sen

‐

tence to unsupervised probation should tell us what Califor

‐

nia, though one of the eight, thinks of the gravity of his of

‐

fense. The age of consent is 16 in a majority (34) of the states

(including the District of Columbia) as well as in the Model

Penal Code, § 213.3(1)(a). (The source of my statistics is Le

‐ gal Age of Consent for Marriage and Sex for the 50 United

States,” http://globaljusticeinitiative.files.wordpress.com/20

11/12/united

‐ states

‐ age

‐ of

‐ consent

‐ table11.pdf (visited Sept.

24, 2014), as were the other websites cited in this opinion.)

By age 17, 40 percent of American girls have had sexual in

‐

tercourse. Guttmacher Institute, Fact Sheet, “American

Teens’ Sexual and Reproductive Health” (May 2014), www.

guttmacher.org/pubs/FB

‐ ATSRH.html.

The question the Board should be addressing is the grav

‐ ity of particular sexual offenses involving minors, rather

than assuming that any of them, however trivial, makes the

perpetrator unfit to be allowed to live in the United States.

Some are serious, some are trivial. Apparently California

didn’t think the petitioner’s offense serious, classifying it as

a misdemeanor and giving him a nominal sentence of unsu

‐No. 12

‐ 2353 17

pervised probation. Although the girl was 15, the Board of

Immigration Appeals, averse to making distinctions, treats

the offense as if it involved a barely 21 year old man having

sex with an almost 18 year old girl. It’s difficult to imagine a

more trivial sexual offense. California thinks it trivial. Why

does the Board think it serious? How can the Board believe

that for a 21

‐ year

‐ old man to have consensual sex with a girl

one day shy of her 18th birthday renders the 21

‐ year

‐ old un

‐

fit to remain in the United States? Could we not at least ask

the Board to explain why it thinks a minor misdemeanor sex

offense is grounds for deportation? If a 10

‐ year prison sen

‐

tence informs the Board’s judgment of whether a sexual of

‐

fense involving a minor should be deemed an aggravated

felony, as we learn from Rodriguez

‐ Rodriguez that it does,

then a sentence of unsupervised probation should inform

the Board’s judgment as well, yet it is not mentioned in the

Board’s opinion in this case.

Nor is this a case in which the immigration judge pro

‐

vided the analysis and the Board relied on it. The immigra

‐

tion judge provided no analysis but said merely that she was

bound by Rodriguez

‐ Rodriguez and that the petitioner’s con

‐

viction “constitutes sexual abuse of a minor and although

treated as a misdemeanor, under state law and in [Velasco

‐

Giron’s] case by its terms constitutes an aggravated felony

under” the immigration statute. The passage I’ve just quoted

is garbled, but implies that the Board has laid down a rule

that any unlawful sexual activity involving a minor, howev

‐

er trivial, is an aggravated felony. It has never laid down

such a rule.18 No. 12

‐ 2353

The majority opinion misreads Rodriguez

‐ Rodriguez as

having adopted a rule that governs this case. The same mis

‐ reading invalidates the Board’s decision in this case.