FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN ELIAS ESTRADA-ESPINOZA, 

Petitioner, No. 05-75850

v. Agency No. 

M A76-339-422 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 25, 2008—Pasadena, California

Filed October 20, 2008

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Andrew J. Kleinfeld,

Michael Daly Hawkins, Sidney R. Thomas,

Barry G. Silverman, Ronald M. Gould, Richard A. Paez,

Richard C. Tallman, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Thomas

14755
COUNSEL

Saad Ahmad, Saad Ahmad & Associates; Fremont, California, for the petitioner. 

Gregory G. Katsas, Acting Assistant Attorney General;

Thomas H. Dupree, Jr., Deputy Assistant Attorney General;

Donald E. Keener, Deputy Director; Bryan S. Beier, Senior

Litigation Counsel; Jennifer Levings, Trial Attorney; Washington, D.C., for the respondent. 

Vikram K. Badrinath, Esquire, Vikram Badrinath, PC, Tucson, Arizona, amicus curiae for the American Immigration

Lawyers Association. 

ESTRADA-ESPINOZA v. MUKASEY 14759
Zachary Miller Nightingale and Avantika Shastri, Attorneys,

Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California, amicus curiae for the Immigration Legal

Resource Center. 

OPINION

THOMAS, Circuit Judge: 

In this appeal, we consider whether a conviction under any

of four California statutory rape provisions—California Penal

Code §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h)—

constitutes the aggravated felony “sexual abuse of a minor”

within the meaning of 8 U.S.C. § 1101(a)(43). We conclude

that each statute defines conduct that is categorically broader

than the generic definition of “sexual abuse of a minor” and

grant the petition for review.

I

Petitioner Juan Elias Estrada-Espinoza is a native and citizen of Mexico. He entered the United States in 1992, at the

age of 12. He adjusted status to become a lawful permanent

resident on June 25, 1998. After learning about EstradaEspinoza’s state statutory rape convictions stemming from his

relationship with his younger girlfriend, the Department of

Homeland Security (“DHS”) placed Estrada-Espinoza in

removal proceedings in 2005, charging him with being

removable as an alien convicted of an aggravated felony. 

Estrada-Espinoza met Sonia Arredondo in June 2001. He

was 20 years old, and Arredondo was either 15 or 16 years

old. Estrada-Espinoza claims that Arredondo and her friends

told him she was 18 at the time of their meeting, and that he

did not learn of her true age until December 2001. The two

began living together in the home of Estrada-Espinoza’s par14760 ESTRADA-ESPINOZA v. MUKASEY
ents a few months after they met. Both sets of parents

approved of the relationship and Estrada-Espinoza regularly

visited his girlfriend’s parents. After six months of living with

Estrada-Espinoza’s parents, the couple moved to a residence

of their own. During this time, Estrada-Espinoza worked in

various grocery stores to support himself, his girlfriend, and,

eventually, the child they raised together. 

On July 13, 2004, the District Attorney filed statutory rape

charges against Estrada-Espinoza, alleging fourteen counts of

various sex offenses. Estrada-Espinoza was convicted on four

counts, all of them relating to sexual activity with his girlfriend: unlawful sexual intercourse with a person under 18

and three years younger than defendant, not defendant’s

spouse, Cal. Penal Code § 261.5(c);1 sodomy of a person

under 18, § 286(b)(1); oral copulation of a person under 18,

§ 288a(b)(1); and sexual penetration by a foreign object of a

person under 18, § 289(h). The court sentenced EstradaEspinoza to 365 days in county jail, with credit for time

served, on February 15, 2005. It is unclear from the record

how he pled or whether there was a trial. 

After DHS commenced proceedings, Estrada-Espinoza

admitted the allegations but denied removability and moved

to terminate the removal proceedings. On July 8, 2005, the

Immigration Judge (“IJ”) denied the motion to terminate the

proceedings and found Estrada-Espinoza removable as an

“aggravated felon” under 8 U.S.C. § 1227(a)(2)(A)(iii),

§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act

(“INA”), as that term is defined in 8 U.S.C. § 1101(a)(43)(A).

That provision defines “aggravated felony” as “murder, rape,

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

IJ appeared to rest this decision on Estrada-Espinoza’s conviction under California Penal Code § 261.5(c), the statutory

rape law which criminalizes sexual intercourse with someone

1Hereinafter all state statutory citations are to the California Penal Code

unless otherwise noted. 

ESTRADA-ESPINOZA v. MUKASEY 14761
under 18 and three years younger than the defendant, who is

not the defendant’s spouse. The IJ relied at least in part on our

withdrawn opinion in Valencia v. Gonzales, 406 F.3d 1154,

1158 (9th Cir. 2005), which found that § 261.5(c) was a crime

of violence and hence an aggravated felony. The IJ recognized that Estrada-Espinoza was being removed for “sexual

abuse of a minor,” not a “crime of violence.” The IJ did not

have the benefit of the Valencia panel’s amended opinion

holding that § 261.5(c) is not a crime of violence under 8

U.S.C. § 1101(a)(43)(F). See Valencia v. Gonzales, 439 F.3d

1046, 1052-53 (9th Cir. 2006). 

Estrada-Espinoza appealed the IJ’s decision to the Board of

Immigration Appeals (“BIA”), which dismissed the appeal on

October 5, 2005. The BIA found no merit to EstradaEspinoza’s argument that because the sexual acts were consensual, “no violence was used and that there is no evidence

of potential harm to the victim.” Instead, the BIA relied heavily on its own published opinion Rodriguez-Rodriguez, 22 I.

& N. Dec. 991, 996 (BIA 1999), in which the BIA adopted

a “guide” to help identify offenses which constitute “sexual

abuse of a minor.” The BIA concluded that the state of California necessarily proved that Estrada-Espinoza engaged in

conduct which constituted “sexual abuse of a minor” within

the meaning of the guide adopted in Rodriguez-Rodriguez, in

order to convict Estrada-Espinoza under the four California

statutes. The BIA affirmed the IJ’s finding that EstradaEspinoza had been convicted of an aggravated felony, citing

all four of the statutes of conviction. This timely petition for

review followed. 

A panel of our Court denied the petition for review, holding

that our decision in Afridi v. Gonzales, 442 F.3d 1212 (9th

Cir. 2006), dictated the result. Estrada-Espinoza v. Gonzales,

498 F.3d 933, 936 (9th Cir. 2007). Two members of the panel

specially concurred, agreeing that Afridi controlled, but suggesting that Afridi be revisited en banc and overruled. Id. at

936-40 (Thomas and Leighton, concurring). Thereafter, upon

14762 ESTRADA-ESPINOZA v. MUKASEY
the vote of a majority of the nonrecused active judges, the

case was ordered reheard en banc pursuant to Ninth Circuit

Rule 35-3. Estrada-Espinoza v. Mukasey, 525 F.3d 821, 822

(9th Cir. 2008). 

We review de novo the legal question of whether a conviction under the relevant California statutes constitutes “sexual

abuse of a minor” within the meaning of 8 U.S.C.

§ 1101(a)(43)(A). See Navarro-Lopez v. Gonzales, 503 F.3d

1063, 1067-68 (9th Cir. 2007) (en banc). 

[1] To determine whether a conviction under §§ 261.5(c),

286(b)(1), 288a(b)(1), or 289(h) constitutes “sexual abuse of

a minor” within the meaning of 8 U.S.C. § 1101(a)(43)(A),

we apply the familiar “categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 602 (1990). “The categorical approach requires us to ‘make a categorical comparison of

the elements of the statute of conviction to the generic definition [of the crime], and decide whether the conduct proscribed

by [the statute] is broader than, and so does not categorically

fall within, this generic definition.’ ” Navarro-Lopez, 503

F.3d at 1067-68 (quoting Huerta-Guevara v. Ashcroft, 321

F.3d 883, 887 (9th Cir. 2003)). We do not examine the facts

underlying the offense, but “look only to the fact of conviction and the statutory definition of the prior offense.” Taylor,

495 U.S. at 602. 

II

A

[2] We begin by determining the generic elements of the

crime “sexual abuse of a minor.” In the absence of specific

congressional guidance as to the elements of a crime, courts

have been left to determine the “generic sense in which the

term is now used in the criminal codes of most States.” Id. at

598. Fortunately, we are not faced with that circumstance here

because Congress has enumerated the elements of the offense

ESTRADA-ESPINOZA v. MUKASEY 14763
of “sexual abuse of a minor” at 18 U.S.C. § 2243.2

 That section provides, in relevant part:

§ 2243. Sexual abuse of a minor or ward 

(a) Of a minor.—Whoever . . . knowingly engages in

a sexual act with another person who— 

(1) has attained the age of 12 years but has

not attained the age of 16 years; and 

(2) is at least four years younger than the

person so engaging; 

or attempts to do so, shall be fined under

this title, imprisoned not more than 15

years, or both. 

Thus, the generic offense of “sexual abuse of a minor”

requires four elements: (1) a mens rea level of knowingly; (2)

a sexual act; (3) with a minor between the ages of 12 and 16;

and (4) an age difference of at least four years between the

defendant and the minor. 

[3] Although it is unnecessary to survey current criminal

law to ascertain a federal definition because Congress has

already supplied it, such a review shows that the congressional definition comports with “the ordinary, contemporary, and

common meaning of the words” of the term. United States v.

Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (internal

2Although Congress also defined “sexual abuse” in 18 U.S.C.

§ 3509(a)(8), this section does not define a crime, but merely addresses the

rights of child victims and witnesses. Since 8 U.S.C. § 1101(a)(43)(A)

defines a category of crime (aggravated felony), it is more plausible that

Congress intended the “aggravated felony” of “sexual abuse of a minor”

to incorporate the definition of “sexual abuse of a minor” in 18 U.S.C.

§ 2243, which is a criminal statute outlining the elements of the offense,

rather than the definition of “sexual abuse” found in 18 U.S.C. § 3509. 

14764 ESTRADA-ESPINOZA v. MUKASEY
quotation marks omitted). As it is our duty “to give effect, if

possible, to every clause and word of a statute,” Duncan v.

Walker, 533 U.S. 167, 174 (2001) (internal quotation marks

omitted), a conviction which constitutes “sexual abuse of a

minor” must necessarily contain an element of abuse. We

have previously construed the word “abuse” as “ ‘physical or

nonphysical misuse or maltreatment” or “ ‘use or treat[ment]

so as to injure, hurt, or damage.’ ” United States v. LopezSolis, 447 F.3d 1201, 1207 (9th Cir. 2006) (quoting United

States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001);

see also United States v. Pallares-Galan, 359 F.3d 1088,

1100 (9th Cir. 2004)). A survey of relevant statutes makes

clear that, under national contemporary standards, although

sexual activity with a younger child is certainly abusive, sexual activity with an older adolescent is not necessarily abusive. 

[4] The Model Penal Code, § 213.3(1)(a), defines statutory

rape as “[a] male who has sexual intercourse with a female

not his wife, or any person who engages in deviate sexual

intercourse or causes another to engage in deviate sexual

intercourse, . . . if: (a) the other person is less than [16] years

old and the actor is at least [four] years older than the other

person . . . .” Model Penal Code § 213.3(1)(a) (2001) (alteration in original). The majority of states set the age of sexual

consent at age 16 and forty-five states permit marriage at age

16 if the parents consent. See United States v. Thomas, 159

F.3d 296, 299 (7th Cir. 1998). California is joined by only

about six other states in criminalizing sexual intercourse

between a 21-year-old and someone about to turn 18. See

“Statutory Rape: A Guide to State Laws and Reporting

Requirements,” The Lewin Group, prepared for the Department of Health and Human Services, Dec. 15, 2004, at http://

www.lewin.com/content/publications/3068.pdf; “Statutory

Rape Laws by State,” Connecticut Office of Legislative

Research, April 14, 2003, at www.cga.ct.gov/

2003/olrdata/jud/rpt/2003-R-0376.htm. Thirty-five states permit sexual intercourse between a 22-year-old and someone

ESTRADA-ESPINOZA v. MUKASEY 14765
who just turned 16, almost two years younger than California

would permit. “Statutory Rape Laws by State”; “Statutory

Rape: A Guide to State Laws.” In addition, another seven

states permit consensual sex between someone who just

turned 21 and someone who is close to turning 17, which California would not allow. “Statutory Rape Laws by State”;

“Statutory Rape: A Guide to State Laws.” The fact that the

vast majority of states do not forbid consensual sexual intercourse with a 17-year-old male or female indicates that such

conduct is not necessarily abusive3 under the ordinary, contemporary, and common meaning of “abuse.” 

[5] Our interpretations are in accord. Recently, in construing a Tennessee statutory rape statute similar to California’s,

we held that “[c]onsensual sexual penetration of an individual

between the ages of 17 and 18 by a 22 year old does not necessarily involve physical ‘misuse,’ ‘injur[y],’ or ‘assault’ ”

because neither physical force nor resulting physical injury

are necessarily implicated and because the Tennessee law

covered consensual sexual relationships. Lopez-Solis, 447

F.3d at 1207 (alteration in original). We also held that psychological abuse was not necessarily a component of sexual penetration of a 17-year-old for two reasons. First, because the

government failed to provide any evidence showing such

harm and “[i]n the absence of evidence, we refuse to assume

the existence of harm.” Id. at 1208 (citing Thomas, 159 F.3d

at 299). Second, because “our prior caselaw—as well as common sense—suggest that, while consensual underage sex may

be psychologically harmful to a young teen, it may not be

harmful to an older one.” Id. We explained that “a teen’s

capacity to understand the nature of sexual relations increases

3California courts charged with interpreting California’s statutory rape

laws have recognized that “a minor over the age of 14 who voluntarily

engages in sexual intercourse is not necessarily a victim of sexual abuse.”

In re Kyle F., 112 Cal. App. 4th 538, 543 (Cal. Ct. App. 2003) (citing

County of San Luis Obispo v. Nathaniel J., 50 Cal. App. 4th 842, 845 (Cal.

Ct. App. 1996)). 

14766 ESTRADA-ESPINOZA v. MUKASEY
gradually as he or she grows older. Thus, an almost 18 year

old typically will have a higher level of sophistication about

sex . . . than a younger teen or child.” Id. at 1209. 

We and our sister circuits have been careful on other occasions to distinguish laws governing the sexual behavior of

younger teenagers from those governing the behavior of 16-

and 17-year-olds. See, e.g., United States v. Melton, 344 F.3d

1021, 1028 (9th Cir. 2003) (recognizing the trend of treating

older teenagers differently but distinguishing Alaska law

because it applies to those under 18 only when incest or similar familial relationships are involved); Pallares-Galan, 359

F.3d at 1101; Thomas, 159 F.3d at 299; United States v. Kirk,

111 F.3d 390, 395 n.8 (5th Cir. 1997) (“Importantly, the circumstances surrounding sexual contact between [a 19-yearold and a 16-year-old] are far different from those surrounding sexual contact between a young child and a much older

adult.”). 

We have extended that line of thought in the context of

other generic offenses as well. In Valencia, 439 F.3d 1046, we

held that § 261.5(c) is not categorically a “crime of violence”

and thus is not an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(F). As Valencia explained, a crime of violence

is defined as any offense “ ‘that, by its nature, involves a substantial risk that physical force against the person or property

of another may be used in the course of committing the

offense.’ ” Id. at 1049 (quoting 18 U.S.C. § 16). We recognized that other circuits had held that “the non-consent of the

victim is the touchstone for determining whether a conviction

constitutes a crime of violence under § 16(b)” because “a

touching without the victim’s consent presents a substantial

risk that force may be used.” Id. at 1050 (internal quotation

marks omitted). However, “[n]one of our sister circuits has

considered whether consensual sexual intercourse with a

minor between the ages of seventeen and eighteen”—the full

range of conduct involved here—“is a crime of violence

under § 16(b).” Id. As a result, because “California sets the

ESTRADA-ESPINOZA v. MUKASEY 14767
age of majority at eighteen, Cal. Penal Code § 261.5(a), this

case requires us to break new ground.” Id. Thus, we acknowledged a significant difference between sexual relations with

someone under 16 and sexual relations with someone between

the ages of 16 and 18. 

Moreover, we found that “the assumption that a minor’s

legal incapacity implies that the proscribed sexual intercourse

is non-consensual . . . may be valid where the minor is a

younger child [but] does not hold true where the victim is an

older adolescent, who is able to engage in sexual intercourse

voluntarily, despite being legally incapable of consent.” Id. at

1051. We then examined a number of California cases clarifying that § 261.5(c) criminalizes completely voluntary conduct

by two consenting parties. Id. at 1051-52. After taking all of

this into consideration, we held that because § 261.5(c) “includes consensual sexual intercourse between a twenty-oneyear-old and a minor one day shy of eighteen,” and because

“a minor of this age is ‘fully capable of freely and voluntarily

consenting’ ” there is no substantial risk that physical force

will be used in committing the offense. Id. at 1052-53. See

also Thomas, 159 F.3d at 299-300 (holding that statutory rape

between a 22-year-old male and a 17-year-old female is not

a “violent felony”). 

Judge Posner, writing for the Seventh Circuit, has found

that although “a 13 year old is unlikely to appreciate fully or

be able to cope effectively with the disease risks and fertility

risks of intercourse and [is likely to have] a high risk pregnancy . . . ,” the government was unable to provide “any

studies or reasons that would support a conclusion that sex

between a 16 year old girl (perhaps, we said, a day short of

17) and a 22 year old man poses a potential risk of physical

injury to the girl.” Thomas, 159 F.3d at 299. See also LopezSolis, 447 F.3d at 1208 (refusing to assume psychological

harm where the government failed to provide any evidence of

it). The Seventh Circuit acknowledged that “there is evidence

that a 16 year old girl is at greater risk of physical injury, in

14768 ESTRADA-ESPINOZA v. MUKASEY
the event that she becomes pregnant, than if she were older

. . . ,” as well as at greater risk of disease, but concluded that

“the risk of sex to 13 year old girls is much greater than the

risk to 16 year olds.” Thomas, 159 F.3d at 299, 300. The Seventh Circuit based its reasoning in part on the fact that 45

states permit marriage at age 16 and that “[m]ore than 40 percent of the 16 year old girls in our society have had sexual

intercourse.” Id. at 299. The same arguments apply with

greater force to the California statutory rape laws, which

criminalize sex acts with a male or female of age 17 as well.

In other words, while pregnancy and disease pose serious

risks of physical injury to people 15 and under, they do not

necessarily pose that same risk to the far more sophisticated

group of 17-year-old young women and men. 

[6] In sum, Congress has defined the crime of “sexual

abuse of a minor,” and its definition is in accord with the contemporary meaning attached to the crime by a majority of the

states. 

B

In opposing a generic federal definition based on the plain

words adopted by Congress, the government argues that when

Congress amended 8 U.S.C. § 1101(a)(43)(A) to include

“sexual abuse of a minor,” see Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, § 321(a)(1), Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627,

it did not intend to refer to the federal criminal offense of

“sexual abuse of a minor.” 

In support of its argument, the government notes that while

Congress has cross-referenced provisions of the federal code

to define other aggravated felonies, it did not cross-reference

any such provision when it added “sexual abuse of a minor.”

The fallacy of this argument is apparent upon a comprehensive examination of the list of aggravated felonies. Section

1101(a)(43) includes 21 subsections, some of which crossESTRADA-ESPINOZA v. MUKASEY 14769
reference other statutory provisions, and some of which do

not. Significantly, there is a clear distinguishing characteristic

between the aggravated felonies that are linked to other statutory provisions and those that are not. Those that refer to a

broad category of offenses, using a potentially ambiguous

phrase, reference other statutory provisions for clarification.

On the other hand, those that refer to a specific crime which

is already clearly defined in criminal law have no need for a

cross-reference. Compare, e.g., 8 U.S.C. § 1101(a)(43)(B)

(“illicit trafficking in a controlled substance,” crossreferencing 18 U.S.C. § 921) and 8 U.S.C. § 1101(a)(43)(F)

(“a crime of violence,” cross-referencing 18 U.S.C. § 16) with

8 U.S.C. § 1101(a)(43)(A) (“murder, rape,” no crossreference) and 8 U.S.C. § 1101(43)(G) (“a theft offense . . .

or burglary offense,” no cross-reference). 

“Sexual abuse of a minor” falls into the latter category,

because it refers to a specific crime. As we have discussed,

“sexual abuse of a minor” is a federal criminal offense. See

18 U.S.C. § 2243. It is also a common title for offenses under

state criminal codes.4 In all cases, the offenses define what

4

See Alaska Stat. § 11.41.434 (“Sexual abuse of a minor”); Ariz. Rev.

Stat. Ann. § 13-1417 (“Continuous sexual abuse of a child”); Cal. Penal

Code § 288.5 (“Continuous sexual abuse of a child”); Del. Code Ann. tit.

11 § 778 (“Continuous sexual abuse of a child”); D.C. Code § 22-3009.01

(“sexual abuse of a minor”); Idaho Code Ann. § 18-1506 (“Sexual abuse

of a child”); 720 Ill. Comp. Stat. 150/5.1 (“Permitting sexual abuse of a

child”); Me. Rev. Stat. Ann. tit. 17-A, § 254 (“Sexual abuse of minors”);

Md. Code Ann., Criminal Law, § 3-602 (“Sexual abuse of a minor”);

Mass. Gen. Laws ch. 265, § 13L (“creating a risk of . . . sexual abuse to

a child”); Mont. Code Ann. § 45-5-625 (“Sexual abuse of children”); N.D.

Cent. Code § 12.1-20-03.1 (“Continuous sexual abuse of a child”); Okla.

Stat. tit. 21 § 51.1a (“sexual abuse of a child”); 18 PA. Stat. Ann. § 6312

(“Sexual abuse of children”); S.D. Codified Laws § 26-10-30 (“Permitting

. . . sexual abuse of a child”); Tex. Penal Code Ann. § 21.02 (“Continuous

Sexual Abuse of a Young Child or Children”); Utah Code Ann. § 76-5-

401.1 (“Sexual abuse of a minor”); Va. Code Ann. § 18.2-67.4:2 (“Sexual

abuse of a child”); Wash. Rev. Code § 9.68A.100 (“Commercial sexual

abuse of a minor”); Wyo. Stat. Ann. § 6-2-314 (“Sexual abuse of a

minor”); V.I. Code Ann. tit. 14, § 486 (“Knowledge of sexual abuse of a

minor”). 

14770 ESTRADA-ESPINOZA v. MUKASEY
would, in more common parlance, be referred to as statutory

rape. Thus, like murder, rape, theft, and burglary—among

others—“sexual abuse of a minor” needs no cross-reference,

as the term already denotes a clearly defined criminal offense.

If Congress had intended the aggravated felony “sexual abuse

of a minor” to be defined differently than the criminal offense

“sexual abuse of a minor,” it could have provided a definition,

cross-referenced a different federal code provision, or even

specified that the definition was not limited to the criminal

definition. As we often observed, “Congress knows how to

define terms when it wants to give them specific definitions

at odds with everyday understanding.” United States v.

Young, 458 F.3d 998, 1007 (9th Cir. 2006). Because Congress

did not elect any of these options, the logical inference is that

Congress intended “sexual abuse of a minor” to carry its standard criminal definition, on par with “murder” or “rape.” 

In short, the government’s argument is not supported by the

statutory text, and we must reject it. 

C

The government also urges us to reject the congressional

definition of “sexual abuse of a minor” on the basis of Chevron deference. See Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843-44 (1984). Of course, we

recognize that when interpreting a provision of the INA, we

accord Chevron deference to interpretations in published BIA

decisions within the BIA’s area of expertise. Garcia-Quintero

v. Gonzales, 455 F.3d 1006, 1014 (9th Cir. 2006);

Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006).

However, Chevron deference does not apply to the instant

case. 

The government first urges that we accord Chevron deference to the one-judge, non-precedential, unpublished BIA

order in this case. However, Chevron deference does not

apply to unpublished, non-precedential BIA decisions.

ESTRADA-ESPINOZA v. MUKASEY 14771
Garcia-Quintero, 455 F.3d at 1014. As we noted in GarciaQuintero, 455 F.3d at 1013, under the relevant regulations,

only “selected decisions of the Board rendered by a threemember panel or by the Board en banc may be designated to

serve as precedents.” 8 C.F.R. § 1003.1(g). A single-judge,

unpublished, non-precedential BIA decision does not satisfy

the standards established for Chevron deference by the

Supreme Court in United States v. Mead Corp., 533 U.S. 218,

226-27 (2001). Garcia-Quintero, 455 F.3d at 1012-13.5

Therefore, we must reject the government’s suggestion.6

The government next argues that we should accord Chevron deference to the BIA’s decision in Rodriguez-Rodriguez,

in which the BIA described a “guide” to help identify offenses

which constitute “sexual abuse of a minor.” However, Chevron deference does not apply in these circumstances because

Rodriguez-Rodriguez did not interpret a statute within the

meaning of Chevron, but only provided a “guide” for later interpretation.7

5Our sister circuits are in accord. See Cruz v. Attorney Gen. of U.S., 452

F.3d 240, 250 (3d Cir. 2006) (recognizing that unpublished BIA decisions

are not designated as precedential); Ajdin v. Bureau of Citizenship &

Immigration Servs., 437 F.3d 261, 264-65 (2d Cir. 2006) (per curiam)

(“[U]npublished opinions of the BIA have no precedential value.”); Ang

v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005) (“[A]n unpublished opinion

[issued by the Attorney General] . . . has no precedential force.”); LealRodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993) (“We will not bind

the BIA with a single non-precedential, unpublished decision any more

than we ourselves are bound by our own unpublished orders.”). 

6We further note that the BIA decision in this case did not comport with

the “guide” suggested by the BIA in Rodriguez-Rodriguez because it discarded the requirement of “abuse.” See supra Part II.A. 

7Even if we were to apply the familiar Chevron analysis, we would necessarily conclude, at step one, that the Rodriguez-Rodriguez guide does

not warrant Chevron deference. Under the Chevron framework, courts

employ a two-step test in reviewing administrative agency interpretations.

The first step is to determine congressional intent. If congressional intent

is clear, both the court and the agency must “give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 843. Only if

Congress has not spoken clearly would we proceed to step two. When

Congress has spoken directly to the issue, as it has here, our inquiry is

over and Chevron deference does not apply. Id. at 842. 

14772 ESTRADA-ESPINOZA v. MUKASEY
According Chevron deference to Rodriguez-Rodriguez

would be inappropriate because the BIA did not construe the

statute and provide a uniform definition in the decision.

Rather, it developed an advisory guideline for future case-bycase interpretation. The Supreme Court has instructed that

“[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals,

and enforcement guidelines, all of which lack the force of law

—do not warrant Chevron-style deference.” Christensen v.

Harris County, 529 U.S. 576, 587 (2000). Although

Rodriguez-Rodriguez has the force of decisional law, its

“guide” for ascertaining the meaning of “sexual abuse of a

minor” suffers from the same imprecision that internal agency

guidelines possess. As the Seventh Circuit has noted, when

the BIA “hasn’t done anything to particularize the meaning”

of a term, “giving Chevron deference to its determination of

that meaning has no practical significance.” Mei v. Ashcroft,

393 F.3d 737, 739 (7th Cir. 2004). 

This wisdom is particularly apt when courts are engaged in

a Taylor analysis of a prior conviction. The underlying theory

of Taylor is that a national definition of the elements of a

crime is required so as to permit uniform application of federal law in determining the federal effect of prior convictions.

Taylor, 495 U.S. at 590. A Taylor analysis requires a comparison between the prior conviction and the nationallyestablished generic elements of the offense at issue. Without

defined elements, a comparison of the state statute with the

federally-defined generic offense is not possible.8 In apparent

recognition of the problem of deferring to a guideline that

contemplates case-by-case variance, the government suggests

8This problem is aptly illustrated by the tension between Lopez-Solis,

447 F.3d 1201, and Afridi, 442 F.3d 1212. In Afridi we held that California

Penal Code § 261.5(c) constitutes “sexual abuse in a minor,” whereas in

Lopez-Solis we held that a virtually identical Tennessee statute does not.

The Supreme Court in Taylor strove to prevent precisely such inconsistencies. 495 U.S. at 590. 

ESTRADA-ESPINOZA v. MUKASEY 14773
that the Rodriguez-Rodriguez guide was meant to embrace all

the varying state statutes that could conceivably encompass

the concept of “sexual abuse of a minor.” However, it was

just this approach that the Supreme Court rejected in Taylor.

See 495 U.S. at 590 (“It seems to us to be implausible that

Congress intended the meaning of “burglary” for purposes of

§ 924(e) to depend on the definition adopted by the State of

conviction.”).9 The Rodriguez-Rodriguez guide is simply not

the type of agency action to which Chevron deference would

apply.10

D

In sum, we conclude that when Congress added “sexual

abuse of a minor,” to the list of aggravated felonies in the

INA it meant “sexual abuse of a minor” as defined in the federal criminal code. The elements of the generic offense are

thus: (1) a mens rea level of knowingly; (2) a sexual act; (3)

with a minor between the ages of 12 and 16; and (4) an age

difference of at least four years between the defendant and the

minor. 

9

See also Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119-20

(1983) (absent plain indication to the contrary, federal laws are not to be

construed so that their application is dependent on state law, “because the

application of federal legislation is nationwide and at times the federal

program would be impaired if state law were to control”); United States

v. Turley, 352 U.S. 407, 411 (1957) (“[I]n the absence of a plain indication

of an intent to incorporate diverse state laws into a federal criminal statute,

the meaning of the federal statute should not be dependent on state law”).

10Because we conclude that Chevron deference does not apply to a mere

guideline, we need not reach Estrada-Espinoza’s argument that we ought

not defer to the BIA’s interpretation of a criminal offense, such as “sexual

abuse of a minor.” See, e.g., Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843

(9th Cir. 2003) (according no deference where the statute in question “is

not a statute which the BIA administers or has any particular expertise in

interpreting, no deference is accorded to the BIA’s interpretation.”). 

14774 ESTRADA-ESPINOZA v. MUKASEY
III

Once we have determined the elements of the generic

offense, the next step in the Taylor analysis is to compare

those elements to the relevant state statute. Navarro-Lopez,

503 F.3d at 1070. The four California statutes of conviction

provide, in relevant part: 

Any person who engages in an act of unlawful sexual intercourse with a minor[11] who is more than

three years younger than the perpetrator is guilty of

either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding

one year, or by imprisonment in the state prison. 

§ 261.5(c); 

Except as provided in Section 288, any person who

participates in an act of sodomy with another person

who is under 18 years of age shall be punished by

imprisonment in the state prison, or in a county jail

for not more than one year. 

§ 286(b)(1) (emphasis added); 

Except as provided in Section 288, any person who

participates in an act of oral copulation with another

person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a

county jail for a period of not more than one year. 

§ 288a(b)(1) (emphasis added); 

Except as provided in Section 288, any person who

participates in an act of sexual penetration with

11“Minor” is defined, for the purposes of subsection (c), as a person

under the age of 18. See § 261.5(a). 

ESTRADA-ESPINOZA v. MUKASEY 14775
another person who is under 18 years of age shall be

punished by imprisonment in the state prison or in

the county jail for a period of not more than one

year. 

§ 289(h) (emphasis added). 

[7] Three of these four statutes are missing the fourth element of the generic statute: an age difference of at least four

years between the defendant and the minor. Only § 261.5(c)

requires a minimum age difference. However, because

§ 261.5(c) requires a difference of only three years and one

day, the statute is broader than the generic offense. Additionally, because each statute applies to persons under 18 years of

age, all four statutes are broader than the generic offense with

respect to the third element—the age of the minor.12 Thus, the

conduct proscribed by each of the four statutes is broader than

the generic offense, and so none of the four statutes fall, categorically, within the generic definition.13 See Navarro-Lopez,

503 F.3d at 1068. 

IV

[8] Given that the offenses of conviction do not categorically qualify as “sexual abuse of a minor,” we next consider

whether the offenses may qualify under Taylor’s modified

categorical approach. As we held in Navarro-Lopez, the mod12We note that all four statutes list separate offenses for sexual acts with

minors under the age of 16 by defendants over the age of 21. See Cal.

Penal Code §§ 261.5(d); 286(b)(2); 288a(b)(2); 289(i). The criminal complaint against Estrada-Espinoza charged him only with the subsections

which prohibit sexual conduct with a minor under age 18 and did not

charge him with any of the subsections which prohibit conduct with a

minor under the age of 16 by a defendant over the age of 21. 

13The mens rea requirement for each of these offenses is not apparent

from the text of the statutes. Because we find each statute to be broader

than the generic statute with respect to other elements, we need not consider whether the mens rea element is also broader. 

14776 ESTRADA-ESPINOZA v. MUKASEY
ified categorical approach does not apply “[w]hen the crime

of conviction is missing an element of the generic crime altogether, [because under such circumstances] we can never find

that ‘a jury was actually required to find all the elements of’

the generic crime.” Id. at 1073 (quoting Li v. Ashcroft, 389

F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring)).

[9] As we have discussed, three of the four California statutes are missing the element of the generic crime which

requires a four-year age difference between the defendant and

the minor. Because a jury could not have been actually

required to find this element to convict Estrada-Espinoza

under §§ 286(b)(1), 288a(b)(1), or 289(h), we cannot apply

the modified categorical approach to conform EstradaEspinoza’s conviction under those three statutes to the generic

definition of “sexual abuse of a minor.” 

[10] Section 261.5(c), however, is not missing an entire element of the generic offense. We thus must more carefully

consider whether the modified categorical approach applies to

§ 261.5(c). We have previously explained that the modified

categorical approach is appropriate when the statute of conviction is divisible into several crimes, some of which fall

under the relevant category, and some of which do not. See

Carty v. Ashcroft, 395 F.3d. 1081, 1084 (9th Cir. 2005). In

this case, although § 261.5 as a whole is divisible into separate crimes,14 subsection (c) defines only one singular crime:

“unlawful sexual intercourse with a minor [under the age of

18] who is more than three years younger than the perpetrator,” § 261.5(c). The government does not allege that EstradaEspinoza was charged with, or convicted under, any subsection of § 261.5 other than subsection (c). Two documents are

available on the record to confirm the charges: the criminal

complaint and the judgment of conviction. Both documents

cite only § 261.5(c). Because § 261.5(c) applies to minors

under the age of 18 and defendants who are only three years

14See supra note 7. 

ESTRADA-ESPINOZA v. MUKASEY 14777
and one day older, it is not possible that “a jury was actually

required to find all the elements of” the generic offense,

Taylor, 495 U.S. at 602. As such, the modified categorical

approach cannot be used to conform Estrada-Espinoza’s conviction to the generic definition of “sexual abuse of a minor.”

V

In sum, we conclude that convictions under §§ 261.5(c),

286(b)(1), 288a(b)(1), or 289(h) do not categorically constitute “sexual abuse of a minor.” 15 This conclusion becomes

even more apparent when we reconsider the facts of this case.

There is no suggestion of abuse in any form. The couple had

a relationship, approved by both parents, and lived together in

the home of the petitioner’s parents. They had a child

together, ultimately moved into a separate residence, and

Estrada-Espinoza worked to support this family. If they had

solemnized their relationship by marriage, no prosecution

would have been possible under § 261.5(c). 

[11] The BIA erred in finding that Estrada-Espinoza’s convictions under California Penal Code §§ 261.5(c), 286(b)(1),

288a(b)(1), and 289(h) constituted the aggravated felony

“sexual abuse of a minor” within the meaning of 8 U.S.C.

§ 1101(a)(43). We grant the petition for review. 

PETITION GRANTED.

15In so holding we necessarily overrule Afridi v. Gonzales, 442 F.3d

1212 (9th Cir. 2006), which held that California Penal Code § 261.5(c)

categorically constitutes “sexual abuse of a minor.” 

14778 ESTRADA-ESPINOZA v. MUKASEY