PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19-1835

_____________

NELIDA BEATRIZ CABEDA,

 Petitioner 

v.

ATTORNEY GENERAL OF THE UNITED STATES OF 

AMERICA 

_______________

On Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA A042-791-483)

Immigration Judge: John P. Ellington

_______________

Argued

January 14, 2020

Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit 

Judges

(Filed: August 18, 2020)

_______________
2

Thomas M. Griffin [ARGUED]

Surin & Griffin

718 Arch Street, Suite 701N

Philadelphia, PA 19106

 Counsel for Petitioner

William P. Barr

Andrew J. Oliveira [ARGUED]

Gregory A. Pennington, Jr.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Counsel for Respondent

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

We deal today with another appearance of what is

known as the “categorical approach” to determining whether

and how a conviction under state law will have consequences

for the convicted criminal under federal law. We must apply

it now in an immigration case, but, in whatever context it

surfaces, it’s a fair bet that this formalistic framework may

result in some counterintuitive and hard-to-justify outcome.

And so it does here.

Argentine citizen Nelida Beatriz Cabeda, a woman in

her thirties, was convicted in Pennsylvania state court of

having involuntary deviate sexual intercourse with a teenage

boy. That conviction ultimately led immigration authorities
3

to find her removable for having committed what they 

concluded is a state-law offense qualifying as an “aggravated 

felony,” 8 U.S.C. § 1227(a)(2)(A)(iii), specifically the

“sexual abuse of a minor,” id. § 1101(a)(43)(A). Cabeda has

petitioned for review of that decision, arguing that,

notwithstanding her actual, admitted sexual abuse of a minor, 

she cannot be removed on that basis. That is so, she says,

because the Pennsylvania statute under which she was 

convicted could conceivably be violated by conduct that falls 

short of satisfying all the elements of the federally defined

crime of sexual abuse of a minor.

Regrettably, she is right. The categorical approach

mandates our accedence to Cabeda’s demand that we ignore 

what she actually did and focus instead on what someone 

else, in a hypothetical world, could have done. That’s the

analytical box the categorical approach puts us in. Thus, even

though it is indisputable on this record – and, in fact, no one

does dispute – that Cabeda repeatedly had sex with a minor,

when we assess her conviction alongside the pertinent federal

statutes, the categorical approach blinds us to the facts and

compels us to hold that the crime of which she was convicted 

does not amount to the aggravated felony of “sexual abuse of 

a minor.” It is a surpassingly strange result but required by

controlling law.

I. BACKGROUND

Cabeda is a citizen of Argentina who entered the 

United States in 1991 as a lawful permanent resident. Many

years later, as alluded to above, she repeatedly engaged in

vaginal and oral sex with a 15-year-old boy. She was 34

years old at the time and well aware of the boy’s age. The 
4

encounters occurred over a period of several weeks and 

eventually came to light after the child’s mother found text

messages of a sexual nature on his phone and took her 

concerns to the police. 

Once confronted, Cabeda confessed and pled guilty in 

Pennsylvania state court to one count of Involuntary Deviate 

Sexual Intercourse, in violation of 18 Pa. Cons. Stat. 

§ 3123(a)(7). She was sentenced to four to eight years’

imprisonment. Her crime drew the attention of federal

authorities, and, after serving the minimum required term of

her sentence, Cabeda was released into the custody of

Immigration and Customs Enforcement agents in July of

2018. She was served with a Notice to Appear charging her

with removability on two grounds: first, that she had

committed the aggravated felony of sexual abuse of a minor;

and second, that she had committed the crime of child abuse.

Cabeda appeared before an Immigration Judge (“IJ”) and 

denied the charges.

After the hearing, she filed a motion to terminate the

immigration proceedings, arguing that her Pennsylvania

conviction did not qualify as either sexual abuse of a minor or 

child abuse. The IJ denied the motion. He concluded that

Cabeda’s statute of conviction categorically qualified as the 

aggravated felony of “sexual abuse of a minor” for purposes

of federal immigration law. The analysis proceeded in two

steps. First, the IJ looked to the definition of “sexual abuse”

set forth in 18 U.S.C. § 3509(a)(8), an approach previously

endorsed by the Board of Immigration Appeals (“BIA”) in In

re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999).

The IJ next referred to the Supreme Court’s observation in

Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), that,
5

“in the context of statutory rape offenses that criminalize 

sexual intercourse based solely on the age of the participants, 

the generic federal definition of sexual abuse of a minor 

requires that the victim be younger than 16.” Id. at 1568.

Thus, since Cabeda’s crime of conviction likewise requires

that the victim be someone “less than 16 years of age,” 18 Pa. 

Cons. Stat. § 3123(a)(7), the IJ ruled that Cabeda’s crime

qualified as sexual abuse of a minor. And, since sexual abuse

of a minor is one variety of child abuse, the IJ also ruled that

Cabeda had committed the crime of child abuse and was

therefore removable on that ground too. 

Cabeda appealed the IJ’s decision to the BIA. She 

argued that the IJ had erred in two ways – first, by failing to 

apply what she claims is a new generic definition of sexual 

abuse of a minor prescribed by Esquivel-Quintana, and 

second, by concluding that her crime of conviction was a 

categorical match for the federal generic crime of sexual 

abuse of a minor.1 The BIA agreed that the IJ had erred by 

1 Cabeda additionally asserted before the BIA that her 

crime of conviction did not qualify as a “crime of child 

abuse,” 8 U.S.C. § 1227(a)(2)(E)(i). The BIA rejected her 

argument and affirmed the IJ on that count as well. She has 

not raised that argument in her petition to us, perhaps because

a conviction for sexual abuse of a minor is an aggravated 

felony and prevents her from applying for cancellation of 

removal, whereas a conviction for child abuse, which is not 

an aggravated felony, leaves open the possibility of that relief. 

See Salmoran v. Att’y Gen., 909 F.3d 73, 83 (3d Cir. 2018)

(stating that a removable alien may apply for cancellation of 

removal if crime of conviction is not an aggravated felony). 

The crime of child abuse is not listed in the Immigration and 
6

failing to use Esquivel-Quintana’s “new” definition of sexual 

abuse of a minor. But it concluded that the Pennsylvania

statutes at play in the comparison of state and federal law are 

nevertheless a categorical match to that new definition, even

though the BIA never specified what it believed that new 

definition to be. It accordingly upheld the IJ’s ruling that

Cabeda was removable as an aggravated felon.

Cabeda now petitions for review.

II. DISCUSSION2

The Immigration and Nationality Act designates

certain crimes as “aggravated felon[ies.]” 8 U.S.C.

Nationality Act section laying out the exclusive list of 

aggravated felonies; it is instead found in a separate section of 

that statute listing domestic violence grounds for 

removability. See 8 U.S.C. § 1101(a)(43) (providing list of 

aggravated felonies); id. § 1227(a)(2)(A)(iii), (E)(i)

(identifying crime of child abuse). In any event, Cabeda’s

child abuse conviction remains as an independent ground for

removal. 

2 The BIA had jurisdiction pursuant to 8 C.F.R. 

§ 1003.1(b). We have jurisdiction under 8 U.S.C. § 1252(a).

We review the BIA’s legal conclusions de novo. Partyka v. 

Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005). “[F]indings of 

fact are conclusive unless any reasonable adjudicator would 

be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B).
7

§ 1101(a)(43). If an alien commits such a crime while

present in the United States, he or she becomes subject to

removal from this country. Id. § 1227(a)(2)(A)(iii). The IJ

and BIA both determined that Cabeda had committed the

aggravated felony of sexual abuse of a minor – an

understandable conclusion, given her admitted and repeated

sexual abuse of a minor. But Cabeda’s conduct is irrelevant;

it’s her conviction that counts. Supreme Court precedent tells

us we are not to “look ... to the facts of the particular ... case,

but instead to whether the state statute defining the crime of 

conviction categorically fits within the generic federal 

definition of a corresponding aggravated felony.” Moncrieffe

v. Holder, 569 U.S. 184, 190 (2013) (internal quotation marks 

and citation omitted).

In this case that means we are required to decide

whether the pertinent Pennsylvania statutes defining and

criminalizing involuntary deviate sexual intercourse are a

categorical match to the federal generic crime of sexual abuse

of a minor. The offenses proscribed by the state statutes

“must be viewed in the abstract,” to see whether they “share[]

the nature of the federal offense that serves as a point of 

comparison.” Id. Thus, “a state offense is a categorical 

match with a generic federal offense only if a conviction of 

the state offense necessarily involved facts equating to the 

generic federal offense.” Id. (internal quotation marks, 

alterations, omission, and citation omitted).

A. The Generic Federal Offense of Sexual 

Abuse of a Minor

The term “sexual abuse of a minor,” 8 U.S.C.

§ 1101(a)(43)(A), is not defined in the Immigration and
8

Nationality Act (“INA”). See Restrepo v. Att’y Gen., 617

F.3d 787, 792 (3d Cir. 2010) (noting that the INA “contains 

no definition of this phrase”). The INA does define other

aggravated felonies by expressly cross-referencing various

criminal statutes. See, e.g., 8 U.S.C. § 1101(a)(43)(B)

(stating that 21 U.S.C.§ 802 provides the definition of “illicit

trafficking in a controlled substance”); id. § 1101(a)(43)(C)

(stating that 18 U.S.C. § 921 provides the definition of “illicit

trafficking in firearms or destructive devices”); id.

§ 1101(a)(43)(D) (making “laundering of monetary

instruments[,]” at least past a monetary threshold and as

defined in 18 U.S.C. § 1956, an aggravated felony). But no

such cross-reference is provided to give precise content to the

term “sexual abuse of a minor.” That, of course, leads to

some uncertainty in discerning the elements of that generic

federal crime.

The BIA dealt with this uncertainty in its en banc

decision in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991

(BIA 1999), by turning to 18 U.S.C. § 3509(a)(8), “a code 

section relating to the rights of child victims and witnesses in 

federal criminal cases.” Restrepo, 617 F.3d at 796. Section 

3509(a)(8) defines sexual abuse to include “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.” 18 U.S.C. § 3509(a)(8). Later,

applying the interpretive approach set forth in the Supreme

Court’s landmark decision in Chevron U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837 (1984), we

deferred to and adopted the BIA’s analysis in our opinion in

Restrepo v. Attorney General. We reasoned that the absence
9

of a definition in the statute indicated that the meaning of

“sexual abuse of a minor” is not clear and unambiguous.

Restrepo, 617 F.3d at 795-97. We noted “that the BIA’s 

definition of sexual abuse of a minor [in RodriguezRodriguez] is a reasonable one and that it [was therefore]

appropriate to exercise Chevron deference.” Id. at 796.

Accordingly, in our Circuit and for purposes of applying the

categorical approach in the context of an immigration case, an

analysis of the generic crime of “sexual abuse of a minor” 

depends upon 18 U.S.C. § 3509(a)(8) for guidance. Despite

that, at Cabeda’s urging, the BIA ruled that the Supreme

Court decision in Esquivel-Quintana effectively overruled

Restrepo and altered that prior approach. That was error.

In Esquivel-Quintana, the Supreme Court considered

the immigration ramifications of a conviction under a

California law defining statutory rape to include “sexual 

intercourse with a minor who is more than three years 

younger than the perpetrator,” 137 S. Ct. at 1567 (quoting

Cal. Penal Code § 261.5(c)). More specifically, the question

was “whether a conviction under a state statute [thus]

criminalizing consensual sexual intercourse between a 21-

year-old and a 17-year-old qualifies as sexual abuse of a

minor under the INA.” Id. The Court began by reiterating

the applicability of the categorical approach, saying that the

pertinent section of the INA “makes aliens removable based 

on the nature of their convictions, not based on their actual 

conduct.” Id. (citing 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any 

alien who is convicted of an aggravated felony at any time 

after admission is deportable.”)). The Court then focused on

the precise question before it.
10

Noting again the parameters of the California statutory

rape statute and California’s definition of a “minor” as

anyone under 18, the Court observed that “the conduct 

criminalized under this provision would be, at a minimum, 

consensual sexual intercourse between a victim who is almost 

18 and a perpetrator who just turned 21.” Id. at 1568. The

categorical analysis required the presumption that the

behavior at issue was the least culpable that could be

prosecuted under the statute, so consensual sex between one

partner a day shy of eighteen and another on his or her 21

st

birthday was the frame of reference the Court assumed for

judging whether the offense of conviction constituted sexual 

abuse of a minor under the INA.

Because the INA does not provide a definition of

“sexual abuse of a minor,” the Court turned to “the normal 

tools of statutory interpretation[,]” beginning with the words

of the statute itself. Id. at 1569. Since Congress added sexual

abuse of a minor to the INA in 1996 as an aggravated felony

triggering removal, the Supreme Court looked to a thencurrent dictionary for a definition of what constitutes “sexual

abuse,” saying the ordinary meaning of those words “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. (quoting

Merriam-Webster’s Dictionary of Law 454 (1996)). Because

the INA requires that the abuse be “of a minor,” the Court

decided the statutory focus is “on age, rather than mental or 

physical incapacity.” Id.

Turning to the parties’ arguments, the Court said that

the government wanted a federal law definition of “sexual

abuse of a minor” requiring only that behavior “(1) is illegal, 
11

(2) involves sexual activity, and (3) is directed at a person 

younger than 18 years old.” Id. (citation omitted). But, the

Court observed, that “turns the categorical approach on its 

head by defining the generic federal offense of sexual abuse 

of a minor as whatever is illegal under the particular law of 

the State where the defendant was convicted.” Id. at 1570.

That effectively means “there is no ‘generic’ definition at 

all.” Id.

Instead of accepting the government’s unrestricted

whatever-a-state-outlaws approach to defining the term, the

Supreme Court agreed with the petitioner’s much narrower

focus on the age of consent that is customary in many

statutory rape laws across the country. It was noteworthy, the

Court decided, that the word “aggravated” precedes the word

“felony” in the INA’s listing of “sexual abuse of a minor” as

a deportable crime, and that the crime is listed in the same

subparagraph of the statute as murder and rape, two of the

most heinous crimes. “The structure of the INA therefore 

suggests that sexual abuse of a minor encompasses only 

especially egregious felonies.” Id. Ultimately, after looking

at other contextual clues in the INA and surveying several

states’ policy choices on the age of consent for sexual

activity, the Court said, “the general consensus from state 

criminal codes points to the same generic definition as 

dictionaries and federal law: Where sexual intercourse is 

abusive solely because of the ages of the participants, the 

victim must be younger than 16.” Id. at 1572.

That ended the matter. The Court did not have to give

a full definition of what constitutes sexual abuse of a minor,

and it did not do so. In fact, it expressly resisted attempts to

push it past the limits of what was required to answer the
12

specific question before it. There was no need to consider

Chevron deference or any other issue that might bear more

broadly on the interpretation of the term “sexual abuse of a

minor,” “because the statute, read in context, unambiguously 

foreclose[d] the [BIA]’s interpretation[,]” which had treated

the petitioner’s crime as an aggravated felony. Id. All that

mattered was that the “petitioner was not convicted of an 

aggravated felony and [was] not, on that basis, removable.”

Id. at 1568.

While there is a lot to learn from the Supreme Court’s

Esquivel-Quintana decision, the primary take-away for the

present matter is that the Court very deliberately ruled

narrowly. It did not purport to establish a full definition of

“sexual abuse of a minor,” and it did not, in either purpose or

effect, undermine our existing precedent in Restrepo in a way

that would permit us to ignore that precedent. One may sense

some tension between the statutory interpretation undertaken

in Restrepo and the analytical approach employed in

Esquivel-Quintana. Most notably, our opinion in Restrepo

was premised heavily on the broad applicability of Chevron

deference to the BIA’s expertise, see Restrepo, 617 F.3d at

793 (asserting that “Congress may have intended for the BIA 

to utilize its expertise to define the phrase” sexual abuse of a

minor), while Esquivel-Quintana relied on ordinary tools of

statutory interpretation and declined to resort to Chevron

deference in answering the specific question confronted, see

Esquivel-Quintana, 137 S. Ct. at 1572 (stating that “the 

statute, read in context, unambiguously forecloses the [BIA]’s 

interpretation” and thus Chevron did not apply). But the

implication that Chevron deference is unnecessary in one

specific instance does not “sufficiently undercut the

decisional basis” of Restrepo to allow us to say that its “rule
13

no longer has any vitality[.]” West v. Keve, 721 F.2d 91, 93 

(3d Cir. 1983) (citation omitted).

3

In short, we are still bound

by Restrepo. Esquivel-Quintana has not changed that.

4

3 That is true even though the Supreme Court’s

decision in another recent case, Kisor v. Wilkie, 139 S. Ct.

2400 (2019), casts doubt on the kind of broadly deferential

approach taken in Restrepo. See id. at 2415 (considering the

question of what judicial deference is owed to an agency’s

interpretation of its own regulations – so-called Auer

deference – and deciding that “Auer ... gives agencies their 

due, while also allowing – indeed, obligating – courts to 

perform their reviewing and restraining functions”).

4

In the accompanying opinion concurring in part, our 

colleague Judge Krause says that the tension between 

Esquivel-Quintana and Restrepo is “irreconcilable[.]”

(Concur. Op. at 4.) That is because, in her view, “[i]n 

multiple respects, the statutory analysis of Esquivel-Quintana

is entirely inconsistent with that of Restrepo.” (Concur. Op. 

at 4.) She thus concludes that “Esquivel-Quintana has so 

undermined [Restrepo’s] analysis that ... Restrepo is no 

longer good law.” (Concur. Op. at 4-5.) That is where we 

part company. 

As already acknowledged, it is true that EsquivelQuintana and Restrepo undertook the task of statutory 

interpretation on different methodological tracks. Our 

decision in Restrepo was written at a time when deference to 

agency decision making often proceeded as a matter of 

course, while the Supreme Court’s decision in EsquivelQuintana reflects what may be seen as a more searching and 

nuanced approach. But shifting interpretive methodologies 

are not usually viewed as carrying the force of stare decisis, at 

least not when the decisions employing them do not purport 
14

to overrule past precedent. We have noted that the Supreme 

Court “typically avoids methodological stare decisis[,]” Am. 

Farm Bureau Fed’n v. U.S. E.P.A., 792 F.3d 281, 307 n.8 (3d 

Cir. 2015), while observing that “federal courts do not treat 

interpretive methodology as a traditional form of ‘law[.]’” Id.

(quoting Evan J. Criddle & Glen Staszewski, Against 

Methodological Stare Decisis, 102 Geo. L.J. 1573, 1576 

(2014)). See also Philip P. Frickey, Interpretive-Regime 

Change, 38 Loy. L.A. L. Rev. 1971, 1976 (2005) (noting that 

the Supreme Court’s methodological statements “are not 

binding on the Supreme Court or even on lower courts”). We

certainly agree that cases like Esquivel-Quintana and Kisor

provide an analytical approach we ought to follow now, but 

that does not mean the substantive conclusions reached in 

earlier cases have all been overruled.

If Esquivel-Quintana did what our colleague claims for 

it – that is, if it meant that our prior precedential decisions 

were all being overruled to the extent they gave broad

Chevron deference to the BIA’s interpretation of immigration 

statutes – we think there would have been more to signal so

dramatic a step than the mere observation that, in the 

particular case then before it, the Supreme Court saw 

Chevron as having no application. See Esquivel-Quintana v. 

Sessions, 137 S. Ct. at 1572 (“We have no need to resolve 

whether the rule of lenity or Chevron receives priority in this 

case because the statute, read in context, unambiguously 

forecloses the Board's interpretation. Therefore, neither the 

rule of lenity nor Chevron applies.”).

So we are not persuaded that Restrepo has been 

overruled by Esquivel-Quintana. That is not “turn[ing] 

vertical stare decisis on its head,” as our colleague says. 
15

Indeed, we have already taken the position, at least

implicitly, that Esquivel-Quintana speaks to the question of

statutory rape, not more broadly to the definition of the

generic offense of sexual abuse of a minor.

5 See MondragonGonzalez v. Attorney General, 884 F.3d 155, 160 (3d Cir. 

2018) (noting that Esquivel-Quintana clarified the meaning of 

“the generic offense of statutory rape”).6 And other circuits

(Concur. Op. at 19.) It is giving necessary respect to our 

existing precedent, even when we ourselves might be inclined

to decide things differently now.

5

In fact, on the topic of statutory rape, the opinion has

the even narrower focus of the age of consent. See EsquivelQuintana, 137 S. Ct. at 1572-73 (“We hold that in the context 

of statutory rape offenses focused solely on the age of the 

participants, the generic federal definition of ‘sexual abuse of 

a minor’ under § 1101(a)(43)(A) requires the age of the 

victim to be less than 16.”).

6

It is notable that nowhere in Mondragon-Gonzalez

did we suggest, much less embrace, the view that EsquivelQuintana enacted a sweeping change that will affect all 

matters in which we and the BIA have been called upon to 

interpret a statute. In fact, even though Mondragon-Gonzalez

presented the question of whether to defer to the BIA’s 

definition of the crime of child abuse, we simply stated that 

“Esquivel-Quintana ha[d] no application ... at all.”

Mondragon-Gonzalez, 884 F.3d at 160. That pronouncement 

appears incompatible with the kind of sea change in our 

jurisprudence that our concurring colleague says has

occurred.
16

apparently agree. See Acevedo v. Barr, 943 F.3d 619, 623 (2d 

Cir. 2019) (holding that Esquivel-Quintana “did not foreclose 

the BIA’s use of [§ 3509(a)(8)] in other instances” and thus 

prior circuit decisions to grant deference to that approach

were still binding); Correa-Diaz v. Sessions, 881 F.3d 523,

527 (7th Cir. 2018) (noting that the Supreme Court “declined 

to rule more broadly on the generic federal definition” and 

decided only “one precise question: the definition of ‘minor’

under § 1101(a)(43)(A) in the context of statutory rape 

offenses focused solely on the age of the participants”).

Pursuant to Restrepo, then, we will continue to defer to the

BIA’s use of 18 U.S.C. § 3509(a)(8) as the primary guide to

defining the generic federal crime of sexual abuse of a minor.

That, however, does not end our task. Section

3509(a)(8) does not specify a mens rea requirement, and we

cannot defer to a nullity, so we must look elsewhere to

discern the mens rea required to establish the generic federal

crime. Following the analytical pattern laid out in EsquivelQuintana, we thus “consider the structure of the INA, the 

inherent egregious nature of an aggravated felony, and

closely-related statutes.” Acevedo, 943 F.3d at 624. Those

sign posts all lead us to the conclusion that sexual abuse of a

minor is a crime that requires, at a minimum, a knowing state

of mind.

First, “[t]he structure of the INA ... suggests that 

sexual abuse of a minor encompasses only especially 

egregious felonies.” Esquivel-Quintana, 137 S. Ct. at 1570.

Again, “the INA lists sexual abuse of a minor in the same 

subparagraph as ‘murder’ and ‘rape,’” and the “[s]urrounding
17

provisions” of the law, listing extremely serious offenses,

“guide our interpretation[.]” Id. “When considering the mens 

rea required for a crime to serve as ‘sexual abuse of a minor,’

the court must keep in mind this categorization.” Acevedo,

943 F.3d at 624. The Supreme Court’s suggestion that sexual

abuse of a minor is an “especially egregious felon[y]”

indicates that a mens rea of lower culpability such as

recklessness will not suffice as an element of the generic

crime.

Second, the term “aggravated felony” itself implies a

certain “inherent seriousness[.]” Id. After all, a conviction

for such an offense “carries significant immigration 

consequences, including providing a basis for the removal 

from the United States of a lawfully present immigrant, or, as 

in this case, disqualifying a removable immigrant alien from 

discretionary relief from removal.” Rangel-Perez v. Lynch,

816 F.3d 591, 601-02 (10th Cir. 2016) (citation omitted). An

aggravated felony conviction, then, “must be for conduct that 

Congress has determined warrants such significant and 

serious treatment.” Id. at 602. And that too signals that a

knowing mens rea is a requirement.

Third and finally, our consideration of a closely related

statute, 18 U.S.C. § 2243, confirms that, to prove sexual

abuse of a minor, the prosecution must show that the

perpetrator acted knowingly. Section 2243, titled “[s]exual

abuse of a minor or ward[,]” is a helpful analog to section

3509(a)(8). The Supreme Court reached for it when

clarifying a different part of the definition of sexual abuse of

a minor. See Esquivel-Quintana, 137 S. Ct. at 1570-71

(turning to 18 U.S.C. § 2243 to determine the age of consent

for the generic federal definition of sexual abuse of a minor).
18

Other courts, too, have looked to it when defining the mens

rea for sexual abuse of a minor. See, e.g., Acevedo, 943 F.3d

at 624 (importing mens rea from 18 U.S.C § 2243); RangelPerez, 816 F.3d at 604 (same). Section 2243 actually

incorporates two distinct mens rea requirements. First, it 

requires knowing conduct as to the sexual act in question. 18

U.S.C. § 2243(a).

7 Second, it establishes that no knowledge

at all is required with respect to the victim’s age; in that

respect, it is a strict liability statute. Id. § 2243(d)(1). We 

hold that the generic federal crime of sexual abuse of a minor 

includes at least the first of those mens rea requirements; we 

have no cause today to address whether it also includes the 

second.8

7 Our concurring colleague claims that turning to §

2243 for guidance while declining to overrule Restrepo lacks 

“logical coherence.” (Concur. Op. at 31.) But Restrepo itself 

acknowledged that Rodriguez-Rodriguez only treated section 

3509(a)(8) as a “guide” and not “as a restrictive or limiting 

definition[.]” Restrepo, 617 F.3d at 796 n.10. It is thus 

consistent to both continue to adhere to binding precedent 

calling for us to defer to the BIA’s reliance on § 3509(a)(8),

and, at the same time, to turn to other statutory aids when 

§ 3509(a)(8) fails to provide the necessary guidance.

8 With respect to the mens rea regarding the age of the 

victim, the Fifth Circuit has held that a state statute requiring 

only recklessness is a categorical match for the generic 

federal offense of sexual abuse of a minor. United States v. 

Rivas, 836 F.3d 514, 515 & n.2 (5th Cir. 2016) (citing

Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014)). As 

just noted, however, there is no need for us to reach that issue.
19

In summary, section 3509(a)(8) continues to provide

the contours of the substance of the offense, but section 2243

sets forth the necessary mental state. With the generic crime

thus sufficiently outlined, we turn next to the relevant

Pennsylvania statutes to see whether, by comparison, the least

culpable conduct for which a conviction could be had under

them would likewise fit the definition of the generic crime.

B. Pennsylvania Involuntary Deviate Sexual

Intercourse

The necessary comparison quickly shows that Cabeda

is correct in asserting that there is no categorical match

between the Pennsylvania statutes and the generic federal

offense of sexual abuse of a minor. The critical difference is

found in the mens rea requirements – the state offense can be

committed recklessly, whereas the federal generic crime

requires a knowing mental state with regard to the sexual

conduct.

Cabeda’s offense of conviction is 18 Pa. Cons. Stat. 

§ 3123(a)(7), under which, a “person commits a felony of the 

first degree when the person engages in deviate sexual 

intercourse with a complainant... who is less than 16 years of 

age and the person is four or more year older than the 

complainant and the complainant and person are not married 

to each other.” The term “deviate sexual intercourse” is in

turn defined in 18 Pa. Cons. Stat. § 3101 as “[s]exual 

intercourse per os or per anus between human beings and any 

form of sexual intercourse with an animal. The term also 

includes penetration, however slight, of the genitals or anus of 

another person with a foreign object for any purpose other
20

than good faith medical, hygienic or law enforcement 

procedures.” 

Notably absent from either of those statutory

provisions is any mens rea requirement. The Pennsylvania

criminal code has a gap-filling provision,18 Pa. Cons. Stat.

§ 302(c), for just such a circumstance: “When the culpability

sufficient to establish a material element of an offense is not

prescribed by law, such element is established if a person acts 

intentionally, knowingly or recklessly with respect thereto.” 

18 Pa. Cons. Stat. § 302(c). Thus, the Pennsylvania code 

allows for prosecution under section 3123(a)(7) on the basis

of behavior that is only reckless.

9

9 Section 302 is not divisible in a way that would make 

the modified categorical approach appropriate. Although 

§ 302(c) lists three types of mens rea in the disjunctive, 

Pennsylvania authority suggests that they are alternate means 

rather than elements. See Mathis v. United States, 136 S. Ct. 

2243, 2253 n.3 (2016) (noting that alternate “mental states are 

interchangeable means of satisfying a single mens rea 

element”). Section 302(c) itself refers to “the culpability 

sufficient to establish a material element of an offense[,]” and 

it provides alternative mental states for determining whether 

“such element is established[.]” Thus, the statute itself 

distinguishes between the elements of an offense and the 

alternative means, listed therein, of satisfying those elements. 

Pennsylvania caselaw too appears to treat the § 302(c) mental 

states as alternative means of satisfying a single statutory 

element. See, e.g., Commonwealth v. Gallagher, 924 A.2d 

636, 637 (Pa. 2007) (noting in prosecution for child luring 

that § 302(c) imposes a “duty to prove that [defendant] acted 

intentionally, knowingly, or at least recklessly”); 
21

That conclusion is confirmed by Pennsylvania

caselaw, which shows that other, closely related, statutes can

be violated recklessly. For example, section 3125 of the same

criminal code title prohibits “penetration, however slight, of 

the genitals or anus of a complainant with a part of the 

person’s body for any purpose other than good faith medical, 

hygienic or law enforcement procedures” where, among other 

possible circumstances, “the person has substantially 

impaired the complainant’s power to appraise or control his 

or her conduct by administering or employing, without the

knowledge of the complainant, drugs, intoxicants or other 

means for the purpose of preventing resistance[.]” 18 Pa. 

Cons. Stat. § 3125(a). The prohibition set forth in that daterape statute contains nearly identical wording to the statute

Cabeda violated, and Pennsylvania courts have said that “the

minimum mens rea for these offenses is recklessness.”

Commonwealth v. Cosby, 224 A.3d 372, 419 (Pa. Super. Ct.

2019); accord Commonwealth v. Torsilieri, No. 2300 EDA 

2018, 2019 WL 3854450, at *5 (Pa. Super. Ct. Aug. 16, 

Commonwealth v. Mayfield, 832 A.2d 418, 427 (Pa. 2003) 

(noting in prosecution for sexual assault that § 302(c) 

“require[s] the Commonwealth to prove at least 

recklessness”). We have also suggested as much. See

Aguilar v. Att’y Gen., 663 F.3d 692, 695 & n.7 (3d Cir. 2011) 

(holding that sexual assault in violation of 18 Pa. Cons. Stat. 

§ 3124.1 constitutes an INA “crime of violence” aggravated 

felony even though it can be committed recklessly under 

§ 302(c), and noting that “the trial judge instructed the jury 

that they must find ‘that the defendant acted knowingly or at 

least recklessly regarding [the complainant’s] nonconsent’”).
22

2019). The mens rea catchall provision in section 302(c) is

the underpinning for those decisions.

Similarly, section 3126(a) prohibits “indecent 

contact[,]” with indecent contact defined in section 3101 as 

“[a]ny touching of the sexual or other intimate parts of the 

person for the purpose of arousing or gratifying sexual desire, 

in any person.” Again, Pennsylvania courts have concluded 

that the crime thus defined can be committed recklessly,

based on section 302(c). See Torsilieri, 2019 WL 3854450, at 

*5 (explaining that the default mens rea of recklessness

applies); Commonwealth v. Carter, 418 A.2d 537, 540-41

(Pa. Super. Ct. 1980) (same).

That means that the Pennsylvania statutes are

categorically broader than the federal generic crime of sexual

abuse of a minor, since the federal offense must be committed

knowingly, but the Pennsylvania crimes can be committed

recklessly. Now, one might be forgiven for thinking that, as a

matter of common sense, it is scarcely conceivable that one

could, as a factual matter, recklessly commit the crime that

Pennsylvania calls involuntary deviate sexual intercourse.

10

That improbability, one might further think, should mean that

the Pennsylvania statute actually is a categorical match for the

generic crime of sexual abuse of a minor, because there is no

realistic probability that Pennsylvania could or would enforce

its statute in a way that would sweep in reckless conduct.

Following that reasoning would allow for a more sensible

10 And yet, given the breadth of the statutory language 

prohibiting penetration “however slight,” reckless violation of

the law is not as absurd as it might seem at first glance. See 

infra at n.12.
23

result here, the semantic strictures of the categorical approach

notwithstanding. Unfortunately, that analytical route is also

barred by binding precedent.

It is true the Supreme Court has stated that, at least

under certain circumstances, the categorical approach

“requires a realistic probability, not a theoretical possibility, 

that the State would apply its statute to conduct that falls 

outside the generic definition of a crime.” Gonzales v. 

Duenas-Alvarez, 549 U.S. 183, 193 (2007). And it is further

true that, in other circuits, Cabeda’s arguments may well have

failed because of the improbability of applying a statute like

Pennsylvania’s to prosecute reckless conduct. See United 

States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir. 2017)

(en banc) (“There is no exception to the actual case 

requirement articulated in Duenas-Alvarez where a court 

concludes a state statute is broader on its face.”).

“Our Court’s precedent, however, takes [an]

alternative approach.” Salmoran v. Att’y Gen., 909 F.3d 73, 

81 (3d Cir. 2018). We have held that “where the elements of 

the crime of conviction are not the same as the elements of

the generic federal offense ... the realistic probability inquiry

... is simply not meant to apply.” Id. (internal quotation

marks and citations omitted). So, once we conclude that the 

textual breadth of a statute is more expansive than the federal 

generic crime because the mens rea elements are different, a 

petitioner need not show that there is a realistic chance that 

the statute will actually be applied in an overly broad manner. 

See Zhi Fei Liao v. Att'y Gen., 910 F.3d 714, 723 (3d Cir. 

2018) (noting that “it is unnecessary to conduct a realistic

probability inquiry” when “the elements of [the state]

conviction ... [do] not match the elements of the generic
24

federal offense”); Singh v. Att’y Gen., 839 F.3d 273, 286 n.10

(3d Cir. 2016) (noting that the realistic probability inquiry

does not apply when “the elements of the crime of conviction 

are not the same as the elements of the generic federal 

offense”).

Thus, the mismatch between the mens rea of the

federal generic crime and the Pennsylvania involuntary

deviate sexual intercourse statute leads inevitably to the

conclusion that they are not a categorical match. We are left

with no option, then, but to conclude that Cabeda’s multiple

statutory rapes of a 15-year-old boy do not qualify as sexual

abuse of a minor within the meaning of the INA. What a

world.

C. The Dissent’s Analytical Path Is Unavailable

The dissent, understandably, seeks to avoid this result,

but we cannot endorse the legal reasoning it uses along the

way. Our dissenting colleague seeks to retroactively reframe 

the Salmoran line of cases as applying only when there is a 

“clear difference between the statute of conviction and the 

federal generic offense[.]” (Dissenting Op. at 3.) Thus, in his 

view, the realistic probability inquiry is foreclosed only when

the petitioner “definitively demonstrate[s] a difference”

between them. (Dissenting Op. at 5.) In close cases, then,

and only in close cases, will the inquiry apply. But nowhere 

in Salmoran is there any indication that we were laying down 

a mere tie-breaking rule. Instead, as already noted, what we 

said was that “where the elements of the crime of conviction 

are not the same as the elements of the generic federal offense

... the realistic probability inquiry ... is simply not meant to 

apply.” Salmoran, 909 F.3d at 81; see also Zhi Fei Liao, 910
25

F.3d at 723 (holding that “the BIA erred in conducting a 

‘realistic probability’ inquiry where the elements of

petitioner’s controlled substance conviction under 

Pennsylvania state law did not match the elements of the 

generic federal offense”). In line with that holding, we 

engage in an ordinary statutory interpretation analysis of the 

statute of conviction. And once we complete that analysis, 

we compare our result to the federal generic offense. We do 

not then take into account how difficult the statutory 

interpretation question was in determining whether the 

realistic-probability inquiry applies.11 Tempting as it is,

then, we cannot accept our dissenting colleague’s reading of 

Salmoran.

But even if the dissent were correct that Salmoran

requires a “clear difference” between the elements of the state

statute and the federal generic offense, such a difference is

present here. Our dissenting colleague believes that 

Pennsylvania’s Involuntary Deviate Sexual Intercourse statute 

requires “a mens rea of knowledge, if not intent.” (Dissenting 

Op. at 6.) He bases that conclusion on two premises: first, 

that a mens rea of recklessness would produce absurd results 

which the legislature could not possibly have intended; and 

second, that it is a mistake to rely on the default culpability 

requirements of § 302(c). 

11 Nor are we persuaded by the dissent’s approach of 

first looking for prosecutions and then concluding, after 

finding none, that the realistic-probability inquiry does not 

apply. That is precisely backwards. We only look through 

judicial records for prosecutions after we determine whether 

the realistic-probability analysis applies.
26

As to the first premise, it is putting the cart before the 

horse to start with the absurdity doctrine and then work 

backwards from there to interpret the text so as to avoid a 

preconceived absurd result. Instead, we first interpret the 

statute according to its text and only then analyze whether 

that text leads to an absurd result. To do otherwise leads to a 

distortion in statutory interpretation as we strain to avoid the 

pre-identified absurd result. That risk is amply demonstrated 

by the free-form and purposive approach the dissent takes to 

arrive at a preferred statutory interpretation. Regardless of 

any intuitions we may have about whether Pennsylvania’s

involuntary deviate sexual intercourse statute ought to be 

viewed as a sufficient match with the provisions of federal 

law defining the generic offense, our discomfort with the

outcome in this case doesn’t allow us to rewrite our own

precedent or Pennsylvania law.

12

 

12 The dissent’s purposive analysis fails even on its 

own terms. The dissent claims that the Pennsylvania 

Supreme Court has articulated one possible purpose of 

§ 3123(a)(7) as “to protect minors younger than 16 years of 

age from older teenage and adult sexual aggressors.” 

Commonwealth v. Albert, 758 A.2d 1149, 1154 (Pa. 2000). 

But the language relied up on by our dissenting colleague is 

from the court’s analysis of hypothetical reasons offered by 

the government in response to a rational-basis challenge to 

the statute. The court’s recognition of a legitimate state 

interest sufficient to withstand rational-basis scrutiny says 

nothing about what mens rea would suffice to accomplish the 

statute’s purpose. In fact, the court specifically noted that 

there was no statutory purpose defined anywhere. See id. at 

1152 (“At the outset, we note that neither the legislative 

provision[] at issue here nor the accompanying legislative 
27

As to the second premise – that § 302(c) is

inapplicable in this context – our dissenting colleague cites no 

authority for that proposition, save a couple of opinions 

declining to apply it in an unrelated context.13 And, as 

history ... disclose any official statement by the legislature 

regarding the rationale or policy motivating [its]

enactment.”). Moreover, it is not for us to make 

Pennsylvania’s policy choice in setting the level of culpable 

mens rea for sexual offenses. As already noted, it seems 

strange to imagine how the deviate sexual intercourse statute 

could be violated recklessly (see supra n.10 and 

accompanying text), but suppose an adult were to 

aggressively and inappropriately touch a child, and that 

conduct resulted in the penetration “however slight” required

for a violation of §§ 302(c), 3101, and 3123(a)(7). In such a 

situation, penalizing reckless conduct is not on its face 

absurd. The dissent’s example of a parent feeding her child is 

plainly inapposite. Such an innocent action carries no 

culpable mens rea whatsoever and thus is not subject to 

criminal penalty.

13 Our dissenting colleague cites Commonwealth v. 

Hart, 28 A.3d 898 (Pa. 2011), as an example of a 

Pennsylvania court engaging in broader statutory 

interpretation “rather than merely applying § 302(c).” But at 

issue in Hart was an interpretive dispute over actus reus, not 

mens rea – specifically, over “whether the mere offer of an 

automobile ride to a child constitutes an attempt to ‘lure’ the 

child.” Id. at 900. In concluding that an offer for a ride must 

be accompanied by “other enticement or inducement,” id. at 
28

900, 909, the court unsurprisingly saw little need to engage 

with section 302(c). No one argues that section 302(c) will 

answer every relevant question a criminal statute might raise. 

What matters for our purposes is whether it answers the 

relevant question we must answer – namely, the minimum 

mens rea for which a defendant could be convicted. It does. 

And the answer it gives is different from – and broader than –

the mens rea for the federal generic offense.

Nor is the dissent’s reliance on Commonwealth v. 

Ludwig, 874 A.2d 623 (Pa. 2005), persuasive. There, the 

state supreme court recognized that where a criminal statute 

“does not explicitly provide for an applicable mens rea, the 

General Assembly has provided a default culpability 

provision in Section 302(c) . . . that is to be applied.” Id. at 

630 (emphasis added). True, in applying section 302, the 

court stated that the mens rea default does not apply where a 

contrary mens rea “is . . . prescribed by law.” Id. (quoting 18 

Pa. C.S.A. § 302(c)). But it did so only because the relevant 

offense, third-degree murder, had a “consistent[]” and “wellsettled” mens rea (malice) at common law. Id. at 630–31.

There is no such common-law tradition for involuntary 

deviate sexual intercourse with a minor.

Finally, the dissent cites to a lone concurrence by one 

justice that was joined by none of the other six justices on the 

bench. See Commonwealth v. Moran, 104 A.3d 1136, 1151-

52 (Pa. 2014) (Todd, J., concurring). The justices in the 

majority reiterated their “repeated[] h[o]ld[ing] [that] § 302 

provides the default level of culpability where a criminal 

statute does not include an express mens rea.” Id. at 1149 

(majority op.) (citing Gallagher, 924 A.2d at 639; Ludwig,

874 A.2d at 630; and Mayfield, 832 A.2d at 427). Even the 
29

already discussed, Pennsylvania courts have applied § 302(c) 

to closely related statutory language.14 So while it is true that 

the text of Pennsylvania’s Involuntary Deviate Sexual

Intercourse statute does not itself contain a mens rea, the clear 

guidance from the courts is that we should apply the gapfilling provisions of § 302(c).15

 There is nothing unusual

two justices in dissent were in full agreement on that point.

See id. at 1154 (Baer, J., concurring and dissenting).

14 See supra pp. 17-18.

15 Pennsylvania courts have repeatedly emphasized the

broad applicability of § 302(c) to the Commonwealth’s

criminal laws. The state supreme court has relied on it, for 

instance, in explaining that even for a criminal statute that 

lacks any mention of mens rea, the legislature’s intent as to 

mens rea is not unclear. See Commonwealth v. Mayfield, 832 

A.2d 418, 427 (Pa. 2003) (assessing 18 Pa. C.S.A. § 3124.2 –

a provision neighboring § 3123(a)(7) – that criminalizes 

institutional sexual assault and importing a mens rea of 

recklessness). Indeed, once an interpreting court determines

that the relevant offense was not intended “to be a strict 

liability crime” the court “need . . . do[] nothing more than 

advert to § 302(c) and require the Commonwealth to prove at 

least recklessness.” Id.; see also Commonwealth v. 

Gallagher, 924 A.2d 636, 638 (Pa. 2007) (“As a rule, in . . . 

instances [where the statute does not express a mens 

rea requirement], Section 302(c) of the Crimes Code 

prescribes the default culpability requirement . . . .” (emphasis 

added)); Commonwealth v. Parmar, 710 A.2d 1083, 1088–89 

(Pa. 1998) (“The bribery statute does not have an explicit 
30

about supplementing the text of a specific provision with a

cross-reference to a generally applicable statutory provision

despite the unfortunate result it leads to when made a

component of the categorical approach to analyzing Cabeda’s

conviction.

So, while we are in complete accord with our

colleague’s desire to mitigate the workings of the categorical

approach, we cannot take the analytical path he suggests. In

the end, we are left to shake our heads at the path we are on.

But, having followed that path as required, we conclude that

there is not a categorical match between Cabeda’s statute of

conviction and the corresponding generic federal crime.

mens rea requirement on its face, but it is subject to the 

culpability requirements of Section 302 . . . . Th[ose] 

culpability requirements . . . apply to all crimes in the Crimes 

Code, like bribery, [as well as] those outside the Crimes Code 

. . . .”). The Pennsylvania code itself bears out § 302(c)’s 

broad application. As the state supreme court explained in 

Parmar, see 710 A.2d at 1089, although the legislature 

crafted exceptions to section 302(c)'s general rule, those 

exceptions apply only to "summary offenses" and those for 

which "a legislative purpose to impose absolute ability . . . 

plainly appears[.]" 18 Pa. C.S.A. § 305(a)(1)–(2). Neither of 

those exceptions, however, applies here. We are thus bound

to apply § 302(c).
31

III. CONCLUSION

For the foregoing reasons, we will grant the petition 

for review, vacate the BIA’s decision, and remand for further 

proceedings consistent with this opinion.

16

16 Nothing in our decision today means that Cabeda is

entitled to cancellation of removal, if and when she applies 

for it. Our holding simply means that she is not subject to the 

automatic deportation that results from a conviction for an 

aggravated felony.
1

GREENAWAY, JR., Circuit Judge, concurring in part, 

dissenting in part, and dissenting in the judgment.

At the outset, I join the majority’s well-reasoned 

analysis with respect to the three conclusions in Section II.A: 

(1) Esquivel-Quintana did not provide a new federal generic 

definition of a crime of sexual abuse of a minor; (2) we 

continue to defer to 18 U.S.C. § 3509(a)(8) as the primary 

guide to defining the generic offense; and (3) the mens rea of 

the federal crime of sexual abuse of a minor is “knowing

conduct as to the sexual act in question.”1 Maj. Op. at 18.

I also share my colleagues’ frustration with the depths 

of the mental gymnastics that the categorical approach 

manufactures and the counterintuitive results it often produces; 

however, here the proper application of the categorical 

approach does not result in such a head-scratching outcome.

Initially, where I part with my colleagues is in their

reliance on Salmoran v. Attorney General to excuse Cabeda 

from demonstrating that there is “a realistic probability, not a 

theoretical possibility, that the State would apply its statute to 

conduct that falls outside the generic definition of a crime.” 

909 F.3d 73, 77 (3d Cir. 2018) (Greenaway, J.) (internal 

quotations and citations omitted). Their analysis in Section 

II.B leads to the challenging interpretation that a defendant 

could be culpable for recklessly “engag[ing] in deviate sexual 

1 Because I find that Esquivel-Quintana did not provide 

a new federal generic definition of a crime of sexual abuse 

of a minor, I respectfully decline to join JUDGE KRAUSE’s 

concurrence. 
2

intercourse” with a minor, whatever that actually entails. 18 

Pa. Cons. Stat. § 3123(a).

In contrast, my view is that the categorical approach 

does not require us to go down that rabbit hole. I therefore 

reach the opposite result, that Cabeda was convicted of an 

aggravated felony consisting of the sexual abuse of a minor. 8 

U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(A). 

Accordingly, I would deny the petition for review for lack of 

jurisdiction.2

In explaining how I reach this conclusion, I will first 

situate Salmoran within the context of this Court’s treatment 

of the realistic probability requirement. Then I will offer two

reasons why Cabeda is not excused from demonstrating a 

realistic probability that Pennsylvania courts would apply a 

mens rea of recklessness to the sexual act under Cabeda’s

statute of conviction, 18 Pa. Cons. Stat. § 3123(a)(7). Namely, 

this case is distinguishable from Salmoran and other cases 

where we found it unnecessary to engage in a realistic 

probability inquiry, and that the majority’s interpretation of 

§ 3123(a)(7) is flawed, or, at best, inconclusive and does not

render the realistic probability requirement moot. Because I 

find that Cabeda cannot meet that additional burden (of 

proving a realistic probability), her crime is a match for the 

2 This Court has jurisdiction to review final orders of 

removal pursuant to 8 U.S.C. § 1252(a), but we lack 

jurisdiction to review an order to remove an alien who commits 

an aggravated felony, 8 U.S.C. § 1252(a)(2)(C). However, this 

Court may retain jurisdiction to address the prerequisite of 

“whether an alien was convicted of a non-reviewable 

aggravated felony.” Stubbs v. Att’y Gen., 452 F.3d 251, 253 

n.4 (3d Cir. 2006). 
3

federal generic offense and aggravated felony of sexual abuse 

of a minor.

I. The Categorical Approach and the Realistic

Probability Requirement

As the majority explains, the categorical approach 

requires us to determine if the material elements of the federal 

generic offense match those of the state statute of conviction. 

Maj. Op. at 6–7 (citing Moncrieffe v. Holder, 569 U.S. 184, 

190 (2013)). Where the petitioner claims that an element of a 

statute encompasses more conduct than the federal crime, the 

petitioner must have some practical basis for his or her

argument. Moncrieffe, 569 U.S. at 191; Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007); Lewin v. Att’y Gen., 885 

F.3d 165, 168 (3d Cir. 2018). In other words, the petitioner’s 

interpretation of the statute cannot be based on “legal 

imagination.” Duenas-Alvarez, 549 U.S. at 193. 

However, this Court has clarified that where the 

petitioner has already demonstrated a clear difference between 

the statute of conviction and the federal generic offense, the 

realistic probability requirement is superfluous. Salmoran, 909 

F.3d at 82. Indeed, we have found that the statute of conviction 

“plainly encompasses more conduct than its federal 

counterpart” based on a comparison of the plain texts of the 

statute and the federal generic crime, e.g., id.; Singh v. Att’y 

Gen., 839 F.3d 273, 285–86 (3d Cir. 2016); cf. Jean-Louis v. 

Att’y Gen., 582 F.3d 462, 481 (3d Cir. 2009), and where the 

state court has definitively articulated an interpretation of the 

statute that sweeps in more culpable conduct than that

contemplated by the federal offense, e.g., Zhi Fei Liao v. Att’y 

Gen., 910 F.3d 714, 723–24 (3d Cir. 2018). Having supported 

the argument with statutory text or state-court interpretations 
4

of the law in these cases, we determined it was unnecessary

for the petitioner to further demonstrate a realistic probability 

that the state courts would interpret the statute in the 

petitioner’s favor; nothing was left to “legal imagination” in 

these cases. Duenas-Alvarez, 549 U.S. at 193.

II. The Realistic Probability Inquiry Applies

In my view, the outcome-determinative question in this 

case is whether Cabeda should be required to demonstrate a 

realistic probability that the Pennsylvania courts would require 

only recklessness as to the act of deviate sexual intercourse 

under § 3123(a)(7).3 See 18 Pa. Cons. Stat. § 3101 (defining 

deviate sexual intercourse as “[s]exual intercourse per os or per 

anus between human beings and any form of sexual intercourse 

with an animal. The term also includes penetration, however 

slight, of the genitals or anus of another person with a foreign 

object for any purpose other than good faith medical, hygienic 

or law enforcement procedures.”). For the following reasons, 

I conclude, unlike my colleagues in the majority, that Cabeda 

must make that showing.

3 The majority correctly points to two mens rea 

requirements in the federal generic offense of sexual abuse of 

minor. Maj. Op. at 18. The second, strict liability with respect 

to the victim’s age, is not the subject of debate here. 

Subsequent references to the mens rea at issue will refer only 

to the culpable mental state as to the conduct of deviate sexual 

intercourse as defined under § 3127(a)(7) and § 3101.
5

A. The Present Case is Distinguishable from Our 

Precedent, so Cabeda is not Excused from Demonstrating 

a Realistic Probability

The lack of a clear difference between the mens rea as 

to the conduct under § 3123(a)(7) and the federal generic 

crime’s mens rea of knowledge distinguishes this case from 

those in the Salmoran line of cases. As such, this is not a case 

“where the elements of the crime of conviction are not the same 

as the elements of the generic federal offense.” Salmoran, 909 

F.3d at 81. 

Cabeda’s statute of conviction does not reference any 

mens rea, so there is no textual hook for differentiation. Nor 

have I or any of my colleagues found an occasion where the 

Pennsylvania courts have definitively spoken to the mens rea 

of the sexual act under § 3123(a)(7). This case therefore falls 

outside of those in which we have found it unnecessary to 

inquire about the realistic probability that the state would 

interpret the law in the petitioner’s favor. Because we are left 

without sufficient “guidance as to how the statute applies,” Zhi 

Fei Liao, 910 F.3d at 723, I would require Cabeda to 

demonstrate that there is a realistic probability that the 

Pennsylvania courts would find reckless conduct culpable.

B. We Must Engage in a Realistic Probability Inquiry

Because the Majority’s Statutory Interpretation Does Not 

Definitively Demonstrate a Difference Between the Statute 

of Conviction and the Federal Generic Offense

In an attempt to avoid this uncertainty, the majority 

presses to apply a gap-filling provision. This leads my 

colleagues to the uncomfortable presumption that one could be 

convicted for recklessly committing the act of deviate sexual 
6

intercourse. Maj. Op. at 19–20. The majority then relies on 

this awkward reading of the statute to differentiate 

§ 3123(a)(7) from the federal generic offense. 

Unfortunately, neither the curious conclusion at which 

my colleagues arrive nor their path in reaching it alleviates the 

concern that the statutory interpretation they embrace is 

flawed. The approach I embrace demonstrates that 

Pennsylvania courts would more likely apply at least a mens 

rea of knowledge, if not intent. At the very least, this

competing approach shows that the majority’s interpretation is 

far from definitive. Left without sufficient guidance to

construe the statute confidently, we cannot forego the 

application of the realistic probability test.

1. The Majority Fails to Fully Consider Pennsylvania’s 

Approach to Statutory Interpretation

The majority would apply 18 Pa. Cons. Stat. § 302(c), 

the default culpability provision, to insert a “recklessness” 

mens rea as to the conduct. While the majority stops there, 

Pennsylvania courts have a more involved approach to

statutory interpretation. As the Pennsylvania Supreme Court 

describes, “[t]he object of all interpretation and construction of

statutes is to ascertain and effectuate the intention of the

General Assembly.” Commonwealth v. Hart, 28 A.3d 898, 

908 (Pa. 2011) (citing 1 Pa. Cons. Stat. § 1921(a)). 

Importantly, “[c]oncomitant with these considerations, 

the Statutory Construction Act also sets forth certain

presumptions regarding the General Assembly’s enactment of

statutes which are to be applied when attempting to ascertain

its legislative intent.” Id. The Pennsylvania Supreme Court

has noted that, “[i]n particular, when interpreting a statutory

provision we must presume that the legislature[] does not
7

intend a result that is unreasonable, absurd, or impossible of

execution, 1 Pa. Cons. Stat. § 1922(1).” Id. Indeed,

Pennsylvania courts have refrained from a strict application of

§ 302(c). See, e.g., id. at 909–10 (choosing to ascertain a mens 

rea as to the act of “luring a child into a motor vehicle” from 

the language of the statute with guidance from the Statutory 

Construction Act, rather than merely applying § 302(c)); 

Commonwealth v. Ludwig, 874 A.2d 623, 630 (Pa. 2005) 

(declining to apply § 302(c) where “[t]he law is clear and wellsettled regarding the mens rea for third degree murder”); see 

also Commonwealth v. Moran, 104 A.3d 1136, 1151–52 (Pa. 

2014) (Todd, J., concurring) (“Neither the plain language

of Section 302, nor our prior caselaw, requires the automatic

application of Section 302’s default culpability requirements

in every situation where a criminal statute does not expressly

state a requisite level of culpability for the conduct it seeks to

penalize. . . . Rather, Section 302 has a narrower application: it

applies only where the ‘culpability sufficient to establish a

material element of an offense is not prescribed by law.’”

(quoting 18 Pa. Cons. Stat. § 302)).

After applying Pennsylvania’s approach to interpreting 

its own law, it is clear that a mens rea of recklessness does not 

comport with the legislature’s intent and would produce 

unreasonable results. We therefore should not apply the 

default culpability provision in § 302 to supply a mens rea in § 

3123(a)(7). Instead, we should find that the sexual act under § 

3123(a)(7) requires a mens rea of at least knowledge.

Although the Pennsylvania legislature did not enact a 

specific statement of legislative intent, the Pennsylvania 

Supreme Court has noted that § 3123(a)(7) serves a legitimate

state interest in “protecting children from sexual predators” 

and “assuring that a significantly older individual cannot take 
8

advantage of a young child's complete lack of knowledge, 

inexperience or poor judgment.” Commonwealth v. Albert,

758 A.2d 1149, 1153 (Pa. 2000) (“We agree with

the Commonwealth that the subject legislation serves a

legitimate state interest, i.e., to protect minors younger than 16

years of age from older teenage and adult sexual aggressors.

Such an interest recognizes that older, more mature individuals

are in a position that would allow them to take advantage of the

immaturity and poor judgment of very young minors.”); see 

also Commonwealth v. Bruner, 527 A.2d 575, 576 (Pa. 1987) 

(“As to the necessity and purpose of the involuntary deviate 

sexual intercourse statute, the Commonwealth . . . does have a 

strong interest in . . . protecting minors from being sexually 

abused by adults.”). It is clear that a mens rea of at least 

knowledge, if not intent, complies with § 3123(a)(7)’s 

legislative purpose.4 

Faced with these statements by the Pennsylvania 

Supreme Court, it is difficult to square the intent to punish 

sexual predators, sexual abusers, and older individuals who 

take advantage of children with a reading of the statute that 

would find reckless sexual acts culpable. § 3123(a)(7).

5

4 The Pennsylvania Supreme Court’s definition of the 

sexual act under § 3123(a)(7) as “oral and anal sex” also 

supports a mens rea of knowledge or intent. See 

Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa. 2002); cf.

Commonwealth v. Hitchcock, 565 A.2d 1159, 1161 (Pa. 1989) 

(describing involuntary deviate sexual intercourse as “forcible

sexual penetration of a person by another”).

5 Several other circuits have also interpreted similar 

state statutes to require knowledge or intent. See, e.g., Acevedo 
9

Reading recklessness into the mens rea is also in tension with 

how Pennsylvania courts have so far interpreted the required 

mental state for committing deviate sexual intercourse.

Indeed, to my knowledge, they have never found a defendant 

culpable for anything less than what appears to be knowing 

conduct. See, e.g., Commonwealth v. Elia, 83 A.3d 254, 266 

(Pa. Super. Ct. 2013) (finding evidence that victim performing

oral sex on defendant after previously engaging in other sexual 

acts was sufficient for conviction under § 3123(a)(7));

v. Barr, 943 F.3d 619, 626–27 (2d Cir. 2019) (affirming BIA’s 

decision to use § 3509 as the generic offense and finding New 

York conviction for attempted oral or anal sexual conduct with 

person under the age of fifteen constituted sexual abuse of a 

minor); Correa-Diaz v. Sessions, 881 F.3d 523, 529 (7th Cir. 

2018) (continuing to apply § 3509 as a guide and concluding a 

conviction for attempted sexual misconduct with a minor 

constituted sexual abuse of a minor); Bedolla-Zarate v. 

Sessions, 892 F.3d 1137, 1141–42 (10th Cir. 2018) (applying 

§ 3509 as a guide for concluding Wyoming conviction for 

sexual contact with minor constitutes sexual abuse of a minor); 

Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014) 

(comparing Virginia statute of conviction for “carnal 

knowledge of child between thirteen and fifteen years of age” 

to § 3509 to find conviction qualifies as sexual abuse of a 

minor); cf. Garcia-Urbano v. Sessions, 890 F.3d 726, 730 (8th 

Cir. 2018) (applying Esquivel-Quintana’s age requirement to 

find Minnesota conviction for sexual conduct with person 

under sixteen years of age qualifies as sexual abuse of a minor); 

Bahar v. Ashcroft, 264 F.3d 1309, 1313 (11th Cir. 2001) 

(relying on the BIA’s decision in Rodriguez to find conviction 

for taking “indecent liberties” with a child under sixteen years 

of age constitutes sexual abuse of a minor).
10

Commonwealth v. Mawhinney, 915 A.2d 107, 111 (Pa. Super.

Ct. 2006), appeal denied 932 A.2d 1287 (Pa. 2007) (finding 

multiple acts of anal and oral sex sufficient evidence for § 

3123(a)(7) conviction); Commonwealth v. Castelhun, 889 

A.2d 1228, 1232–33 (Pa. Super. Ct. 2005) (same); see also 

Commonwealth v. Williams, 439 A.2d 765, 768 (Pa. Super. Ct. 

1982) (describing involuntary deviate sexual intercourse as a 

“general intent crime[]”). The majority’s attenuated reading 

only drives needless uncertainty into a consistently-applied 

statute.6 Cf. 1 Pa. Cons. Stat. § 1922(2) (advising that courts

6 As indication that the Pennsylvania courts would 

apply a recklessness mens rea to § 3123(a)(7), the majority 

relies on three Pennsylvania cases interpreting two similar 

statutes in which the courts applied the default culpability 

provision. But these cases are plainly inapposite; not one 

speaks to the mens rea of the sexual act, only to the mens rea 

of other elements that are not present under § 3123(a)(7). 

Commonwealth v. Cosby, 224 A.3d 372, 419–20 (Pa. Super. 

Ct. 2019) (applying recklessness to whether the defendant has 

the “complainant’s consent,” knows that “the complainant is 

unaware that the penetration is occurring,” or “has 

substantially impaired the complainant’s power to appraise or 

control his or her conduct”); Commonwealth v. Torsilieri, No. 

2300 EDA 2018, 2019 WL 3854450, at *5 (Pa. Super. Ct. Aug. 

16, 2019) (not precedential) (same); Commonwealth v. Carter, 

418 A.2d 537, 540-41 (Pa. Super. Ct. 1980) (applying § 302(c) 

to find there was sufficient evidence showing “a substantial 

risk that [the victim] was of such mental infirmity as to render 

her incapable of consent”).
11

should presume that the legislature “intends the entire statute

to be effective and certain”).

Importantly, reading recklessness into the mens rea of 

the sexual act under § 3123(a)(7) plainly violates 

Pennsylvania’s tenet that courts must presume that the

legislature “does not intend a result that is absurd, impossible

of execution, or unreasonable.” 1 Pa. Cons. Stat. § 1922(1);

see also United States v. Schneider, 14 F.3d 876, 880 (3d Cir. 

1994) (“It is the obligation of the court to construe a statute to 

avoid absurd results, if alternative interpretations are available 

and consistent with the legislative purpose.”). Certainly, the 

Pennsylvania General Assembly did not intend to make a

mother or father criminally liable for “penetrat[ing]” their

baby’s mouth, “however slight,” with a hot spoon, while 

holding the baby and cooking dinner. 18 Pa. Cons. Stat. § 

3101.

2. The Competing Interpretations Present the Precise 

Challenge in Duenas-Alvarez

Clearly, I have failed to convince my colleagues that 

knowledge or intent is the appropriate mens rea. So, I humbly 

proffer that my approach is at least as reasonable as that of the 

majority. If we accept there are two equally good ways to 

interpret the mens rea under § 3123(a)(7), then the majority’s 

conclusion that Pennsylvania would apply recklessness to the 

statute is far from definitive and cannot be relied upon to show 

a clear difference between the state statute and the federal 

generic offense.

This case therefore falls under the same circumstances 

as in Duenas-Alvarez. In Duenas-Alvarez, the petitioner 

posited an interpretation of state law, which had been neither
12

confirmed nor denied by the state courts. 549 U.S. at 190–93. 

Faced with two possible interpretations, the Supreme Court 

erred on the side of what was realistically probable. Id. at 193. 

So, too, must this Court. 

Instead, the majority favors a theorical possibility and 

therefore unnecessarily risks superseding the state’s authority 

as the primary interpreter of its own laws. See Pinho v.

Gonzales, 432 F.3d 193, 212 (3d Cir. 2005) (“[T]he authority 

of state courts to determine state-law questions is clear: 

‘[C]omity and respect for federalism compel us to defer to 

decisions of state courts on issues of state law. That practice 

reflects our understanding that the decisions of state courts are 

definitive pronouncements of the will of the States as 

sovereigns.’” (citations omitted)). In rejecting the realistic 

probability inquiry, the majority regrettably ignores the 

Supreme Court’s admonition to avoid “legal imagin[ings].” 

Duenas-Alvarez, 549 U.S. at 193.

Unrestricted by Salmoran, and for the reasons supplied 

above, I would require Cabeda to show a realistic probability 

that the Pennsylvania courts would apply a mens rea of 

recklessness to the act of deviate sexual intercourse.7

7 The depths of the disagreements between myself and 

my colleagues in analyzing Pennsylvania cases is further 

evidence that we should tread lightly in interpreting § 

3123(a)(7). So, rather than “put[] the cart before the horse,” 

Maj. Op. at 26, this application of Salmoran’s realistic 

probability requirement draws from the Supreme Court’s own 

cautionary approach.
13

III. Cabeda Cannot Meet the Realistic Probability 

Requirement

“To show that realistic probability, an offender . . . may 

show that the statute was so applied in [the petitioner’s] own 

case. . . . or other cases in which the state courts in fact did 

apply the statute in the special (nongeneric) manner for which 

[the petitioner] argues.” Duenas-Alvarez, 549 U.S. at 193. We 

have not found a Pennsylvania case that has applied a mens rea 

of recklessness to the conduct criminalized under § 3123(a)(7), 

so Cabeda could not have met the realistic probability 

requirement here.

***

I would therefore find Cabeda’s statute of conviction a 

categorical match to the federal generic offense of an 

aggravated felony consisting of sexual abuse of a minor. 

Having found Cabeda was convicted of an aggravated felony 

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), I would deny the 

petition for lack of jurisdiction, which would preclude Cabeda

from applying for cancellation of removal.
1

KRAUSE, Circuit Judge, concurring in part and concurring in 

the judgment.

I join JUDGE JORDAN’s excellent opinion (the Majority) in 

its three major respects. First, the generic definition of “sexual 

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

rea of knowledge with respect to the proscribed sexual conduct. Second, Cabeda’s Pennsylvania offense requires a mens 

rea of only recklessness as to that conduct. Third, under our 

case law, that is the end of the matter: Where the elements of 

a state offense differ from and are broader than those of the 

generic federal offense, there is no categorical match regardless whether the petitioner can show a “realistic probability” 

that the state will prosecute the offense in an overbroad way.1 

Salmoran v. Att’y Gen., 909 F.3d 73, 81 (3d Cir. 2018) (citation 

omitted). Based on these three conclusions, I agree that—although the result is counterintuitive if not bizarre—Cabeda’s 

crime of conviction does not fit within the generic federal offense of “sexual abuse of a minor,” and she can neither be removed nor denied cancellation of removal on that basis.

I write separately because I reach the first of those conclusions by a different path. The Majority rejects the argument 

that Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), requires us to revisit Restrepo v. Attorney General, 617 F.3d 787 

(3d Cir. 2010), which, in interpreting “sexual abuse of a 

1 That is, I join in full not only JUDGE JORDAN’s analysis of 

the contents of Pennsylvania law, Maj. Op. 19–22, but also his 

application of our holdings in the Salmoran line of cases, id. at 

22–24, and his rejection of the alternative lines of reasoning 

offered in dissent by JUDGE GREENAWAY, id. at 24–30.
2

minor,” deferred to the Board of Immigration Appeals’s (BIA) 

decision in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 

(BIA 1999) (en banc). Its reasoning is that Esquivel-Quintana

reaches no further than its context—fixing the age of consent 

for statutory rape offenses based solely on the participants’ 

ages—and gives us no basis to depart from Restrepo. Yet once 

the Majority turns to defining the generic federal offense, it

does not rely on Restrepo, Rodriguez-Rodriguez, or even 

18 U.S.C. § 3509(a)(8), the statutory provision on which those

decisions were based. Instead, its analysis turns on 18 U.S.C. 

§ 2243—a distinct provision that both Restrepo and RodriguezRodriguez rejected as an interpretive guide—as well as statutory and contextual clues that those decisions discounted or ignored. So in the end, the Majority looks beyond Restrepo and 

finds a knowledge requirement by adopting the interpretive approach of Esquivel-Quintana.

I would reach that result more directly by holding that Esquivel-Quintana abrogates the bases on which Restrepo rested. 

Under the approach set out in Esquivel-Quintana, before deeming a provision ambiguous under Chevron, courts must engage 

in vigorous textual and contextual statutory analysis tailored to 

the precise interpretive question presented. That approach is 

impossible to square with Restrepo, which ignored or discounted sources of statutory meaning on which Esquivel-Quintana relied, assessed ambiguity at the broadest level, and required deference to Rodriguez-Rodriguez for all future interpretive questions involving § 1101(a)(43)(A). Restrepo is a 

relic of an era when deference was far more reflexive and automatic than it is today and, after Esquivel-Quintana, we can 

no longer follow Restrepo in uncritically relying on RodriguezRodriguez or § 3509(a)(8). 
3

I tackle these issues in three steps. I first highlight the fundamental inconsistencies between Esquivel-Quintana and Restrepo, which reveal that the latter decision’s assessment of

ambiguity was erroneous. I then explore the case law on Rodriguez-Rodriguez after Esquivel-Quintana to show why I 

view the issue as unsettled. Finally, I explain why the conclusion that § 1101(a)(43)(A) requires knowledge—with which I 

wholeheartedly agree—flows not from Restrepo or RodriguezRodriguez, but from Esquivel-Quintana.

I.

The Majority ably summarizes the contours of EsquivelQuintana’s holding. I agree Esquivel-Quintana resolved only 

one aspect of the generic federal definition of “sexual abuse of 

a minor”: the meaning of “minor” “in the context of statutory 

rape offenses that criminalize sexual intercourse based solely 

on the age of the participants.” 137 S. Ct. at 1568. The Court 

did not set down an all-encompassing definition of “sexual 

abuse of a minor”; in fact, it expressly reserved interpretive 

questions not before it. See, e.g., id. at 1572. So I join the 

Majority in rejecting the argument, which the BIA endorsed,2

2 The BIA “agree[d] with [Cabeda]” about the contents of 

the new definition and cited the pages of Cabeda’s brief laying 

out that definition. A.R. 4. As those pages reveal, the definition Cabeda put forward, and that the BIA accepted, was “the 

engaging in sexual contact with a person who is below a specified age or who is incapable of giving consent because of age 
4

that Esquivel-Quintana created a new, comprehensive generic 

federal definition to be applied in future cases. So far, so easy.

What is not so easy, though, is the distinct question whether 

Esquivel-Quintana’s analysis—the sources and evidence the 

Court considered and the order in which the Court considered 

them—undermines Restrepo’s analysis of § 1101(a)(43)(A) or 

its choice to defer to the BIA’s interpretation in Rodriguez-Rodriguez. The Majority acknowledges that more complicated 

question, observing that there is “some tension between” Restrepo and Esquivel-Quintana. Maj. Op. 12; accord id. at 13 

n.4. I see that tension as irreconcilable. In multiple respects, 

the statutory analysis of Esquivel-Quintana is entirely inconsistent with that of Restrepo. Indeed, Esquivel-Quintana has 

or mental or physical incapacity.” A.R. 15 (emphasis omitted) 

(quoting Esquivel-Quintana, 137 S. Ct. at 1569). 

But the idea that the quoted language established a new generic definition borders on the fatuous. That language, which 

came from Merriam-Webster’s Dictionary of Law, see Esquivel-Quintana, 137 S. Ct. at 1569, was just one of many 

pieces of evidence the Court considered en route to deciding 

the age of consent for a subset of statutory rape offenses. See 

id. at 1568–72. Nothing in the Court’s opinion even hints at an 

endorsement of that language as a definitive encapsulation of 

the generic federal definition. Nor, contrary to Cabeda’s argument, is there any evidence to suggest that by quoting the 

phrase “sexual contact” as part of the dictionary definition, the 

Court meant to silently adopt the definition of that phrase from 

18 U.S.C. § 2246(3).
5

so undermined that analysis that I believe Restrepo is no longer

good law.

Under the first step of Chevron, we may “defer to [an] 

agency’s reasonable interpretation of a statute only if the text 

of the statute is unclear and we cannot discern congressional 

intent by utilizing various tools of statutory construction.” 

Quinteros v. Att’y Gen., 945 F.3d 772, 784 (3d Cir. 2019) (internal quotation marks and citation omitted). But Restrepo put 

the cart before the horse, signaling that deference was appropriate before engaging in statutory interpretation. What’s 

more, Restrepo’s eventual statutory analysis cannot withstand 

scrutiny after Esquivel-Quintana, which demanded a much 

more targeted approach and which took a contrary position on 

essentially all the sources of statutory meaning Restrepo considered. Viewed through the lens of Esquivel-Quintana, Restrepo erred in concluding that § 1101(a)(43)(A) was acrossthe-board ambiguous under Chevron.

A.

Perhaps the most noteworthy aspect of Esquivel-Quintana

cannot be gleaned only from reading the Court’s opinion. As 

it came to the Court, Esquivel-Quintana was very much a case 

about Chevron deference in general and about the wisdom of 

deferring to the BIA’s reliance on a procedural statute like

§ 3509(a)(8) in particular.3 See, e.g., Brief for the Petitioner at 

35–48, Esquivel-Quintana, 137 S. Ct. 1562 (No. 16-54), 2016 

3 As noted by the Majority, § 3509 deals with the rights of 

child victims and witnesses in federal criminal proceedings. 

See 18 U.S.C. § 3509. It does not criminalize any conduct.
6

WL 7384847; Brief for the Respondent at 36–55, EsquivelQuintana, 137 S. Ct. 1562 (No. 16-54), 2017 WL 345128; Reply Brief for Petitioner at 17–23, Esquivel-Quintana, 137 S. Ct. 

1562 (No. 16-54), 2017 WL 632460. Yet for all the space it 

commanded in the briefing, Chevron ended up relegated to a 

short paragraph at the tail end of the Court’s opinion. After 

reviewing the text along with dictionary definitions, statutory 

context, related federal statutes, and analogous state laws, the 

Court found “no need” to resort to Chevron deference at all

“because the statute, read in context, unambiguously foreclose[d] the [BIA]’s interpretation.” Esquivel-Quintana, 

137 S. Ct. at 1572. In other words, when faced with a question 

about the phrase “sexual abuse of a minor,” the Court treated 

Chevron as a canon of last resort, to be used if—but only if—

the Court could not dispel ambiguity through a robust application of all the tools in its statutory toolkit. See also Epic Sys. 

Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (noting that “Chevron leaves the stage” where the “court, employing traditional 

tools of statutory construction,” can discern the meaning of the

contested provision (citations omitted)).

Not so with Restrepo. In analyzing “sexual abuse of a minor,” we first noted that, unlike other aggravated felonies listed 

in the Immigration and Nationality Act (INA), § 1101(a)(43)(A)

contains neither cross-references to other statutory provisions 

nor explanatory parentheticals about the nature of the offense. 

Restrepo, 617 F.3d at 792. Then—before looking to any other 

textual or contextual clues—we suggested that “Congress 

ha[d] explicitly left a gap for the agency to fill,” “intend[ing] 

for the BIA to utilize its expertise to define the phrase.” Id. at 

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

Inc., 467 U.S. 837, 843 (1984)). And—once again without
7

further statutory analysis—we concluded that because 

§ 1101(a)(43)(A) lacks an express definition and cross-references, its “precise definition . . . is most assuredly not clear and 

unambiguous.”4 Id. 

Put plainly, in Restrepo we waved the white flag of ambiguity far too readily, and without performing the rigorous analysis Esquivel-Quintana demands. But that is not Restrepo’s 

only flaw.

B.

Esquivel-Quintana also clarified that in assessing ambiguity under step one of Chevron, courts must define the interpretive question narrowly. Said differently, courts must ask not 

whether a statute is ambiguous in general, but whether it is ambiguous as to the specific legal issue in the case. That, too, is 

impossible to square with Restrepo, which approached the issue of ambiguity practically in the abstract.

In analyzing the phrase “sexual abuse of a minor,” the 

Court in Esquivel-Quintana did not trouble itself with whether 

4 We revealed we were jumping the gun on ambiguity in 

other ways, too. Among Restrepo’s brief statutory analysis is 

a footnote discussing the legislative history, which we understood to suggest Congress had intended § 1101(a)(43)(A) to be 

read “expansive[ly].” 617 F.3d at 795 n.6. We considered that 

reading consistent “with the structure of § 1101(a)(43)(A)”—

but also “with the BIA’s interpretation” of the phrase. Id. Accordingly, it appears Rodriguez-Rodriguez colored what 

should have been an independent analysis of statutory meaning 

at step one of Chevron.
8

every element of the federal generic offense was clear from the

text. Instead, it limited its interpretive task to the specific category of crimes it faced: “statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants.” Esquivel-Quintana, 137 S. Ct. at 1568. Because it did 

so, the Court could assess § 1101(a)(43)(A) through an appropriately tailored lens and conclude that the generic age of consent, at least where the statutory rape offense is based only on 

age (rather than, say, a relationship of trust between the adult 

and the minor), is sixteen. Id. at 1569–72. That narrow focus 

allowed the Court to avoid the broader dispute about whether 

it was appropriate to defer to a BIA interpretation based on a 

procedural statute like § 3509. See id. at 1572. 

Since Esquivel-Quintana, the Court has reaffirmed its endorsement of this approach. Take Pereira v. Sessions, 138 S. 

Ct. 2105 (2018), a case involving the INA’s “stop-time rule,” 

which if triggered ends a noncitizen’s period of continuous

physical presence for purposes of cancellation of removal. Id.

at 2109. As in Esquivel-Quintana, in Pereira the issue of 

Chevron deference was hotly contested and commanded substantial space in the briefing. See Brief for Petitioner at 24–55, 

Pereira, 138 S. Ct. 2105 (No. 17-459), 2018 WL 1083742; 

Brief for the Respondent at 21–52, Pereira, 138 S. Ct. 2105 

(No. 17-459), 2018 WL 1557067; Reply Brief for Petitioner at 

3–23, Pereira, 138 S. Ct. 2105 (No. 17-459), 2018 WL 

1792078. Yet in its opinion, the Court criticized the parties for 

approaching the interpretive question too “broadly.” Pereira, 

138 S. Ct. at 2113. Rather than asking whether “all ‘items 

listed’ in [8 U.S.C.] § 1229(a)(1)” must be included for a document to qualify as a “notice to appear” triggering the stoptime rule, the Court narrowed the question presented to the one
9

item missing from Pereira’s notice: “the date and time of [the] 

removal proceedings.” Id. Once it had sufficiently “narrowe[d]

[the] question” presented, the Court found it “need not resort 

to Chevron deference” at all. Id. Instead, after reviewing the 

statutory text, neighboring provisions, and “common sense,” 

id. at 2114–16, it concluded the stop-time provision “ha[d] supplied a clear and unambiguous answer to the interpretive question at hand,” id. at 2113 (emphasis added). Once again, therefore, the Court made clear that statutory ambiguity—without 

which deference to an agency is inappropriate—must be assessed through the lens of the precise dispute. See also Nielsen v. Preap, 139 S. Ct. 954, 963–65 (2019) (resolving an interpretive dispute related to an INA provision governing the 

apprehension and detention of noncitizens based on a close 

analysis of the text and without citing Chevron, even though 

the parties had sharply litigated the deference issue); SAS Inst. 

Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018) (declining to address the parties’ Chevron arguments because, “after applying 

traditional tools of interpretation” to the specific question presented, the Court was “left with no uncertainty that could warrant deference”); Wis. Cent. Ltd. v. United States, 138 S. Ct. 

2067, 2074 (2018) (similar); Sturgeon v. Frost, 139 S. Ct. 

1066, 1080 n.3 (2019) (similar).

Now consider Restrepo. The specific question presented 

was a narrow one: whether inappropriate contact with a minor’s sensitive areas “through her clothing” qualified as sexual 

abuse. See 617 F.3d at 800. But you would hardly know it 

from reading the opinion because the first time we grappled 

with that specific issue occurred well over halfway in, id. at 

799—and long after we had deemed § 1101(a)(43)(A) ambiguous, see id. at 793, 795. Instead, we analyzed the statute at 
10

the highest level of generality, focusing on the lack of crossreferences and explanatory parentheticals, id. at 792–93, and 

on general clues drawn from surrounding provisions and contemporaneous legislation, id. at 793–95. It is no surprise that 

such a general review of the statute “le[ft] us in a state of interpretive uncertainty,” id. at 795: Without the benefit of decisions like Esquivel-Quintana and Pereira, we hadn’t defined 

the precise question we were meant to answer. 

We have, since Restrepo, gotten it right, stating that we 

must assess the ambiguity of a statute “with respect to the specific issue of law in the case.” Da Silva v. Att’y Gen., 948 F.3d 

629, 634 (3d Cir. 2020) (citation omitted); accord, e.g.,

S.E.R.L. v. Att’y Gen., 894 F.3d 535, 549 (3d Cir. 2018) (Chevron step one requires courts to narrow in on “the precise question at issue” (citation omitted)). Had we followed that path in 

Restrepo, we may or may not have found ambiguity over 

whether “sexual abuse of a minor” encompasses “inappropriate 

touching of a minor through the clothing,” 617 F.3d at 799—

but we would not have concluded that § 1101(a)(43)(A) was 

ambiguous across the board, and consequently we could not 

have purported to require “defin[ing] sexual abuse of a minor 

by reference to § 3509(a)” in all future cases, id. at 796. After 

Esquivel-Quintana, we must revisit that misstep.

C.

Finally, and apart from those issues about the timing and 

framing of the ambiguity inquiry, Esquivel-Quintana has revealed that Restrepo’s statutory analysis was deeply flawed. In 

five respects, we either misinterpreted or ignored key clues 

about § 1101(a)(43)’s meaning.
11

First, Restrepo discounted a longstanding “rule of statutory 

construction”: that “identical words used in different parts of 

the same act are intended to have the same meaning.” Dep’t of 

Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994) 

(citation omitted). Congress added “sexual abuse of a minor” 

to the INA’s list of aggravated felonies in 1996. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 

Pub. L. No. 104-208, div. C, § 321(a)(1), 110 Stat. 3009, 3009-

627 (codified at 8 U.S.C. § 1101(a)(43)(A)). As part of the 

same omnibus legislation, Congress also amended the code 

provision criminalizing sexual abuse of a minor. Amber 

Hagerman Child Protection Act of 1996, Pub. L. No. 104-208, 

div. A, tit. I, § 121, subsec. 7(c), 110 Stat. 3009, 3009-31 (codified at 18 U.S.C. § 2243(a)). So Restrepo invoked the sameact canon, urging us to interpret “sexual abuse of a minor” under § 1101(a)(43)(A) in line with § 2243. See Restrepo, 

617 F.3d at 793. But we rejected that canon as “inapplicable” 

to omnibus legislation, concluding—without citing any precedent for this proposition—that terms used “in separate and distinct statutes” were not subject to the rule. Id. at 793–94.

Esquivel-Quintana took a contrary approach. There, the 

Court leaned heavily on § 2243, which it described as “[a] 

closely related federal statute” providing valuable “evidence 

[of] the generic federal definition of sexual abuse of a minor.” 

137 S. Ct. at 1570. It did so not just because § 2243 “contains 

the only definition of that phrase in the United States Code,” 

but also because Congress had amended § 2243 “in the same 

omnibus law that added sexual abuse of a minor to the INA.” 

Id. As the Court explained, the temporal proximity between 

revisions to § 1101(a)(43)(A) and § 2243 “provide[s] stron[g] 

suppor[t]” for the argument that the two should be interpreted 
12

consistently. See id. (second and third alterations in original) 

(internal quotation marks and citation omitted). Here, the conflict could hardly be more evident: Restrepo held inapplicable 

a canon of statutory construction that Esquivel-Quintana employed in interpreting the same provision.

Second, Restrepo also neglected another longstanding 

canon: noscitur a sociis, under which “a word is known by the 

company it keeps.” Yates v. United States, 135 S. Ct. 1074, 

1085 (2015). Here, the words are “sexual abuse of a minor,” 

and the company they keep is sinister indeed: “murder” and 

“rape.” 8 U.S.C. § 1101(a)(43)(A). Invoking noscitur a sociis, 

Restrepo argued that the severity of murder and rape should 

inform our interpretation of sexual abuse of a minor. See Restrepo, 617 F.3d at 794. We rejected that argument as inconsistent with “the broader context of the legislation at issue,” id., 

which—looking beyond § 1101(a)(43)(A) to unrelated parts of 

the INA—we characterized as an effort “to expand both the 

protections afforded to minors and the penalties applicable to 

aliens who commit crimes against minors.” Id. (More on that 

in a moment.) We otherwise did not explore how the phrase’s 

proximity to murder and rape should affect our analysis.

Once again, Esquivel-Quintana revealed the error in our 

thinking. The Court emphasized that “the INA lists sexual 

abuse of a minor in the same subparagraph as ‘murder’ and 

‘rape,’” which are “among the most heinous crimes it defines 

as aggravated felonies.” Esquivel-Quintana, 137 S. Ct. at 1570 

(quoting 8 U.S.C. § 1101(a)(43)(A)). For the Court, the noscitur a sociis canon was highly useful because it revealed “that 

sexual abuse of a minor encompasses only especially egregious felonies.” Id. (emphasis added). That insight is not just 
13

missing from Restrepo—it is directly contrary to how Restrepo

characterized § 1101(a)(43)(A). 

Third, Restrepo ignored another valuable contextual clue 

about the contours of § 1101(a)(43)(A). Restrepo emphasized 

that when Congress added sexual abuse of a minor to the list 

of aggravated felonies, “it simultaneously amended the INA to 

classify crimes of domestic violence, stalking, child abuse, 

child neglect, and child abandonment as grounds for deportability.” 617 F.3d at 794. We took that to mean that “Congress 

intended to implement comprehensive protections for minor 

victims that were expansive in nature.” Id. at 795 n.6. That 

“expansive” reading was critical to our analysis, as it supported

our conclusion that it “would be counterintuitive” to adopt an 

interpretation of § 1101(a)(43)(A) that excluded certain state 

offenses. See id. at 795.

Restrepo’s expansive reading is nowhere to be found in Esquivel-Quintana. In fact, after a thorough review of the statutory text and context, the Court concluded the opposite. Section 1101(a)(43)(A), the Court emphasized, is “an ‘aggravated’ 

offense,” meaning “one made worse or more serious by [the] 

circumstances.” Esquivel-Quintana, 137 S. Ct. at 1570 (internal quotation marks and citation omitted). And unlike the 

broader grounds for removal discussed in Restrepo, sexual 

abuse of a minor is an aggravated felony carrying the additional, and severe, sanction of ineligibility for cancellation of 

removal. That signal was a key reason the Court concluded

that § 1101(a)(43)(A) “encompasses only especially egregious 

felonies,” id., but unfortunately it is one we missed in Restrepo.

Fourth, Restrepo misunderstood the role state criminal offenses should play in the analysis of a federal generic offense 
14

like § 1101(a)(43)(A). Restrepo was convicted of a New Jersey statute criminalizing “an act of sexual contact,” N.J. Stat. 

Ann. § 2C:14-3(a), which includes intentional touching of intimate areas “through clothing,” id. § 2C:14-1(d). But § 2243’s 

actus reus is a “sexual act,” 18 U.S.C. § 2243(a), which is defined as intentional touching “not through the clothing,” id.

§ 2246(2)(D). In Restrepo, we signaled our concern that relying on § 2243 would exclude the New Jersey offense from the 

generic federal definition, something we felt would conflict 

with the “expansive” reading discussed above. See 617 F.3d 

at 794–95 nn.6 & 7. So instead we turned to § 3509, whose 

definition includes intentional touching “through clothing,”

8 U.S.C. § 3509(a)(9)(A). See Restrepo, 617 F.3d at 799–800. 

Esquivel-Quintana reveals we were wrong to let the state 

crime drive our interpretation of the generic federal offense. 

Indeed, the government tried something similar in EsquivelQuintana: Faced with a state statute criminalizing consensual 

sex between 21- and a 17-year-old, 137 S. Ct. at 1567, it offered up a definition broad enough to capture the statute, 

namely that sexual abuse covers sexual activity “directed at a 

person younger than 18.” Id. at 1569 (citation omitted). But 

the Court criticized the government for “turn[ing] the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under 

the particular law of the State where the defendant was convicted.” Id. at 1570. Under that conception of the categorical 

approach, the Court explained, “there is no ‘generic’ definition 

at all.” Id. 

Further, although the Court ultimately “look[ed] to state criminal codes for additional evidence,” it did so only after developing 
15

an independent view on the meaning of § 1101(a)(43)(A) and,

just as critical, only after a comprehensive cross-jurisdictional 

survey. Esquivel-Quintana, 137 S. Ct. at 1571–72; see id. at 

1573 app. That survey allowed the Court to confirm its understanding of the statute’s meaning by reference to a majority of 

jurisdictions—even though its conclusion excluded over a 

dozen states’ laws from the generic definition, id. at 1576 app. 

Although we referred to a few states’ laws in Restrepo, 

617 F.3d at 795 n.7 (Pennsylvania and Delaware); see id. at 

799 n.16 (citing, but not analyzing, sexual-abuse-of-a-minor 

analogs from five states and the District of Columbia), we 

stopped far short of the cross-jurisdictional analysis used in Esquivel-Quintana. 

We are not alone in having misunderstood the import and 

role of state crimes in analyzing a generic federal offense. See, 

e.g., Bedolla-Zarate v. Sessions, 892 F.3d 1137, 1141 n.4 (10th 

Cir. 2018) (noting that Esquivel-Quintana abrogated circuit 

precedent on looking to state criminal statutes). But after Esquivel-Quintana, we should not hesitate to ask whether we inappropriately “turn[ed] the categorical approach on its head,” 

137 S. Ct. at 1570, in crafting § 1101(a)(43)(A) to capture the 

offense before us. 

Fifth, Restrepo unnecessarily painted itself into a corner. 

Restrepo portrayed an interpretive dilemma in which it would 

have to choose either § 2243 or § 3509 as the definitive lodestar 

for “sexual abuse of a minor.” Choosing § 2243, we concluded, would exclude too many state offenses from the generic federal definition. Restrepo, 617 F.3d at 795. So instead 

we chose § 3509(a)—and purported to do so for all future cases 

involving § 1101(a)(43)(A). See id. at 796.
16

But Esquivel-Quintana has shown that to be a false choice. 

There, although the Court relied heavily on § 2243, it did so 

only because it judged § 2243 to be a sensible guide for the 

problem it was facing. And it made clear it was not adopting 

§ 2243 “as . . . the complete or exclusive definition” of

§ 1101(a)(43)(A). Esquivel-Quintana, 137 S. Ct. at 1571. If 

we had had the benefit of Esquivel-Quintana’s guidance, we 

would have understood that our choice between the two 

sources of statutory meaning was neither as absolute nor as 

consequential as we made it seem.

D.

Although the Majority recognizes that “Esquivel-Quintana

reflects . . . a more searching and nuanced approach” than the 

one we took in Restrepo, Maj. Op. 13 n.4, it attributes those 

differences to “shifting interpretive methodologies [that] are 

not usually viewed as carrying the force of stare decisis.” Id. 

I disagree in four respects.

First, I cannot help but note the irony in embracing this proposition when the delta between my and my colleagues’ views

comes down to “interpretive methodologies” on both sides. If 

all that were binding on us were Restrepo’s substantive holding—namely, that a statute criminalizing the “intentional touching . . . , either directly or through clothing,” of a minor’s sensitive areas “for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor” qualifies as “sexual abuse of a minor” under § 1101(a)(43)(A), see 

617 F.3d at 800 & n.18 (citation omitted)—we would be in 

complete alignment about how to resolve this appeal. It is only 

what Restrepo had to say about its interpretive method—i.e., 

that in analyzing “sexual abuse of a minor,” we would “refer[] 
17

to § 3509(a)” as “a guide,” id. at 796 n.10 (citation omitted)—

that is at issue between us. In essence, the Majority dismisses 

Esquivel-Quintana’s contributions as merely providing interpretive guidance but declines to apply the same lens to Restrepo. But “what is sauce for the goose is normally sauce for 

the gander,” Heffernan v. City of Paterson, 136 S. Ct. 1412, 

1418 (2016), and there is no reason why our own prior views 

on interpretive methods—especially views that are inconsistent with current doctrine, see Maj. Op. 13 n.4—would continue to demand adherence when the Supreme Court’s more 

recent views would not. 

Second, the rule on which the Majority relies is, in my view, 

far narrower than as described. My colleagues assert, for instance, that “the Supreme Court ‘typically avoids methodological stare decisis,’” Maj. Op. 14 n.4 (quoting Am. Farm Bureau 

Fed’n v. U.S. EPA, 792 F.3d 281, 307 n.8 (3d Cir. 2015)), and 

to be sure, some Justices have suggested that statements in [the 

Court’s] opinions about . . . generally applicable interpretive 

methods, like the proper weight to afford historical practice in 

constitutional cases or legislative history in statutory cases,” 

are not entitled to the “full force” of stare decisis, e.g., Kisor v. 

Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring 

in the judgment). But that principle addresses only the extent 

to which “future Justices” are bound by methodology in the 

Supreme Court’s prior decisions—that is, it addresses only 

“horizontal” stare decisis. Id. at 2444. And that distinction is 

critical: Whatever might be said of how the Court chooses to 

treat “its own precedents,” “[b]y contrast, vertical stare decisis

is absolute, as it must be in a hierarchical system with ‘one supreme Court.’” Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n.5 
18

(2020) (Kavanaugh, J., concurring in part) (emphasis added 

and omitted) (citation omitted). 

Nor have we held that, as a Court of Appeals, we are free 

to discard the Supreme Court’s instructions on “interpretive 

methodology” as not a “form of ‘law’” that binds us, Maj.

Op. 14 n.4 (quoting Am. Farm Bureau, 792 F.3d at 307 n.8). 

What my colleagues omit in discussing American Farm Bureau is that there, although we outlined an academic debate 

about so-called methodological stare decisis, we concluded we 

had “no occasion to explore further the contours of th[at] debate.” 792 F.3d at 307 n.8. Instead, we applied the interpretive 

method called for by precedent. See id. The Majority has apparently opted to embrace one side of that debate, but we as a 

Court did not do so in American Farm Bureau or any other

decision of which I am aware.

Indeed, the “sea change in our jurisprudence,” Maj. Op. 15 

n.6, if anything, would be if the Courts of Appeals were suddenly free to discard as nonbinding the Supreme Court’s instructions on “interpretive methodologies,” id. at 13 n.4 (citation omitted)—for instance, that we may defer to an agency’s 

interpretation only if the statute “is ambiguous” and the interpretation “reasonable,” Nat’l Cable & Telecomms. Ass’n v. 

Brand X Internet Servs., 545 U.S. 967, 980 (2005), or that we 

may apply the rule of lenity “only . . . after consulting traditional canons of statutory construction,” United States v. 

Shabani, 513 U.S. 10, 17 (1994). What are those if not “interpretive methodologies” addressing how to understand civil and 

criminal enactments?—and yet we follow them just as we follow all other binding statements from the High Court, see, e.g., 

Mejia-Castanon v. Att’y Gen., 931 F.3d 224, 232–33 (3d Cir. 
19

2019) (Chevron); United States v. Barbosa, 271 F.3d 438, 455 

(3d Cir. 2001) (lenity). 

Third, perhaps searching for a limiting principle, the Majority suggests we can ignore methodological guidance from 

the Supreme Court “when the decisions employing [such guidance] do not purport to overrule past precedent.” Maj. Op. 13–

14 n.4. Yet it is unclear exactly what “past precedent” the Esquivel-Quintana Court was supposed to note it was overruling. 

After all, Esquivel-Quintana was the Court’s first occasion to 

address § 1101(a)(43)(A). And surely the Majority does not 

mean to suggest that the Supreme Court, to guarantee that its 

dictates will be followed, must canvas the case law of this Circuit and every other Court of Appeals and identify each possible point of abrogation. That suggestion would all but erase 

the very concept of abrogation, restricting changes in circuit 

law to those occasions when our decisions are expressly overruled. But that has never been our practice. To the contrary, 

“[a] panel of this Court may reevaluate the holding of a prior 

panel which conflicts with intervening Supreme Court precedent,” even if only “impliedly.” In re Krebs, 527 F.3d 82, 83–

84 (3d Cir. 2008). Here, however, the Majority turns vertical 

stare decisis on its head, elevating a concededly outmoded 

panel decision over a contrary and more recent statement from 

the Supreme Court. 

Fourth, the fundamental inconsistencies between EsquivelQuintana and Restrepo cannot be swept aside as if they were 

purely “methodological,” Maj. Op. 13 n.4. As discussed in detail above, see supra 10–16, Esquivel-Quintana has revealed 

Restrepo to be flawed not only in its methodology, but also in 

its substantive conclusions about § 1101(a)(43)(A)’s context 
20

and meaning, particularly the expansive reading of the statute

on which Restrepo (and Rodriguez-Rodriguez) so heavily depended. Those substantive conflicts fall beyond the methodological-stare-decisis argument, whatever its merits, and go unaddressed by my esteemed colleagues.

* * *

In brief, a close look at Esquivel-Quintana reveals that Restrepo found ambiguity in § 1101(a)(43)(A) too quickly, too 

generally, and by ignoring or misinterpreting valuable evidence of statutory meaning. And as a result, Restrepo erroneously suggested that under Chevron step one, it would always 

be appropriate to refer to the BIA’s interpretation in RodriguezRodriguez.

5

5 Because in my view § 1101(a)(43)(A) unambiguously requires a mens rea of knowledge with respect to the proscribed 

sexual conduct, I take no position on whether the BIA’s view 

in Rodriguez-Rodriguez is “arbitrary, capricious, or manifestly 

contrary to the statute,” Egan v. Del. River Port Auth., 851 F.3d 

263, 271 (3d Cir. 2017) (citation omitted), either in terms of

the statute’s text or its “design and structure . . . as a whole,” 

Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014)

(citation omitted). 

I note, though, that Rodriguez-Rodriguez suffers from several of the flaws that Esquivel-Quintana has revealed in Restrepo. Like Restrepo, Rodriguez-Rodriguez hinged on an “expansi[ve]” view of § 1101(a)(43)(A), see 22 I. & N. Dec. at 

994, one that ignored multiple pieces of evidence “suggest[ing] 

that sexual abuse of a minor encompasses only especially 
21

As a result, I cannot agree this is simply a matter of “Chevron deference[’s] [being] unnecessary in one specific instance” 

and not in another, Maj. Op. 12. The Court’s analysis in Esquivel-Quintana not only implicates, but directly undermines, 

everything we said and did in Restrepo. That is more than 

enough to “‘undercut the decisional basis’ of Restrepo,” id. at 

12–13 (quoting West v. Keve, 721 F.2d 91, 93 (3d Cir. 1983)), 

and accordingly we are not bound by that decision’s suggestion 

that we must uncritically defer to § 3509(a)(8) in all cases involving § 1101(a)(43)(A).

egregious felonies,” Esquivel-Quintana, 137 S. Ct. at 1570. 

And, again like Restrepo, Rodriguez-Rodriguez seems to have 

reverse-engineered the generic federal definition to fit the state 

offense, see 22 I. & N. Dec. at 995–96, thereby “turn[ing] the 

categorical approach on its head,” Esquivel-Quintana, 137 S. 

Ct. at 1570. Although it is possible that Rodriguez-Rodriguez’s 

bottom-line conclusion, 22 I. & N. Dec. at 993, that “sexual 

abuse of a minor” encompasses non-contact indecent exposure 

offenses was correct, future panels of this Court faced with 

genuine ambiguity may have to decide whether Rodriguez-Rodriguez offers up a reasonable interpretation. If so, they will 

also have to confront the fact that Rodriguez-Rodriguez looked 

to § 3509(a)(8) only as a “guide,” id. at 996, and only in one 

specific context. Cf., e.g., Amos v. Lynch, 790 F.3d 512, 520 

(4th Cir. 2015) (holding that Rodriguez-Rodriguez is not entitled to deference “[b]eyond [its] limited holding” on indecent 

exposure offenses).
22

II.

My learned colleagues view the idea that Restrepo’s deference to Rodriguez-Rodriguez survives Esquivel-Quintana as 

something of a fait accompli, which we and other Courts of 

Appeals have already decided. In my view, neither we nor, 

with one exception, any other circuit has reached that conclusion, and in fact most of our sister circuits’ case law suggests 

we must revisit Restrepo in light of Esquivel-Quintana.

A.

Relying on Mondragon-Gonzalez v. Attorney General, 

884 F.3d 155 (3d Cir. 2018), the Majority infers, as a general 

matter, that “we have already taken the position . . . that Esquivel-Quintana speaks specifically to the question of statutory 

rape, not more broadly to the definition of the generic offense 

of sexual abuse of a minor.” Maj. Op. 15. I do not believe 

Mondragon-Gonzalez sweeps so broadly; indeed, that case did 

not involve the aggravated felony of “sexual abuse of a minor” 

at all.

In Mondragon-Gonzalez, the issue was whether the petitioner’s Pennsylvania conviction of unlawful contact with a 

minor constituted a “crime of child abuse” under 8 U.S.C. 

§ 1227(a)(2)(E)(i). 884 F.3d at 157. After Esquivel-Quintana

came down, the petitioner argued that “a child for purposes 

of . . . the term ‘crime of child abuse’ means someone under 

the age of 16,” and not (as the BIA had concluded) anyone under eighteen. See id. at 160. In rejecting that argument, we 

emphasized Esquivel-Quintana’s limits, noting that the Court 

had addressed only the “sexual abuse of a minor” aggravated 

felony provision. Id. Unsurprisingly, we concluded that “Esquivel-Quintana has no application . . . at all,” id., in a case 
23

turning on the meaning of the word “child” in the statutory 

phrase “crime of child abuse.” There is little that is “notable,” 

Maj. Op. 15 n.6, in that decision; to the contrary, the surprise 

would have been if a panel addressing an entirely unrelated 

INA provision had launched into an unnecessary analysis of 

whether Esquivel-Quintana had abrogated unrelated precedent.

Because nothing in Mondragon-Gonzalez addressed the effect of Esquivel-Quintana’s reasoning on Restrepo’s statutory 

analysis, that issue remains open in our Circuit.

B.

To the extent we may draw wisdom from our sister circuits, 

they generally favor revisiting Restrepo’s deference to Rodriguez-Rodriguez in the aftermath of Esquivel-Quintana.

Many of those circuits reject outright the notion that Rodriguez-Rodriguez is entitled to deference. Several reached that 

conclusion before Esquivel-Quintana. See Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1157–58 (9th Cir. 2008) (en 

banc) (holding that Rodriguez-Rodriguez, which looked to

§ 3509(a)(8) only as a “guide” and which did not identify defined elements of the generic federal offense, did not set down 

a definitive interpretation entitled to Chevron deference), overruled on other grounds by United States v. Aguila-Montes de 

Oca, 655 F.3d 915 (9th Cir. 2011) (en banc); Amos v. Lynch, 

790 F.3d 512, 519–20 (4th Cir. 2015) (following Estrada-Espinoza); Rangel-Perez v. Lynch, 816 F.3d 591, 598–601 (10th 

Cir. 2016) (same), abrogated in other part by Esquivel-Quintana, 137 S. Ct. 1562; see also Contreras v. Holder, 754 F.3d 

286, 292–93 (5th Cir. 2014) (suggesting that Rodriguez-
24

Rodriguez’s definition may “not [be] a reasonable one”). Another has implicitly joined the fold since. See Garcia-Urbano v. Sessions, 890 F.3d 726, 728 (8th Cir. 2018) (noting that 

the BIA has “interpreted the phrase [‘sexual abuse of a minor’] 

through case-by-case adjudication,” not a definitive interpretation). In the Fourth, Fifth, Eighth, Ninth, and Tenth Circuits,

therefore, there is simply no Restrepo analog for those courts 

to reconsider after Esquivel-Quintana. 

And in the few circuits with a Restrepo analog—the Second, see Mugalli v. Ashcroft, 258 F.3d 52, 60 (2d Cir. 2001), 

Sixth, see Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1026–

27 (6th Cir. 2016), rev’d in part, 137 S. Ct. 1562 (2017), and 

Seventh, see Velasco-Giron v. Holder, 773 F.3d 774, 776 (7th 

Cir. 2014)—the reaction to Esquivel-Quintana has been anything but uniform. To be sure, in Correa-Diaz v. Sessions, 

881 F.3d 523 (7th Cir. 2018), the court adhered to pre-Esquivel-Quintana precedent deferring to Rodriguez-Rodriguez, 

reasoning that the Supreme Court’s decision made Chevron

deference inappropriate only “as to [the] one precise question” 

presented there. Id. at 527–28. So the Seventh Circuit, at least, 

is firmly in the Majority’s camp.

The same cannot be said, though, for the Second Circuit. 

In Acevedo v. Barr, 943 F.3d 619 (2d Cir. 2019), the court 

noted that although Esquivel-Quintana “avoided any issue of 

Chevron deference with respect to . . . § 3509(a)(8)” as to the 

issue before it, “it also did not foreclose the BIA’s use of that 

statute in other instances,” and thus circuit precedent deferring 

to Rodriguez-Rodriguez “survives Esquivel-Quintana.” Id. at 

623. That is fair, as far as it goes. But Acevedo then sidestepped § 3509(a)(8) altogether and instead performed a wide-
25

ranging analysis of “the structure of the INA, the inherent egregious nature of an aggravated felony, and closely-related statutes,” id. at 624—including § 2243, which Esquivel-Quintana

had cited and which Rodriguez-Rodriguez had rejected. In essence, ongoing deference to Rodriguez-Rodriguez was more 

honored in the breach than in the observance.

The Sixth Circuit’s view is yet unclear. But in Keeley v. 

Whitaker, 910 F.3d 878 (6th Cir. 2018), a case involving the 

nearby aggravated felony of “rape,” 8 U.S.C. § 1101(a)(43)(A),

the court showed both sensitivity to the need for rigorous statutory analysis and reluctance to give unwarranted deference to 

the BIA. It rejected the BIA’s interpretation that “rape” includes digital penetration, reasoning that the BIA had given 

short shrift to statutory language in order to sweep more state 

laws into the aggravated felony category. See Keeley, 910 F.3d 

at 883–84. That criticism echoed Esquivel-Quintana’s caution

that the government cannot “turn[] the categorical approach on 

its head by defining the generic federal offense . . . as whatever 

is illegal under the particular law of the State where the defendant was convicted,” 137 S. Ct. at 1570. And, as in EsquivelQuintana, Keeley found “no need” to resort to Chevron deference after fully exhausting the tools of statutory construction. 

910 F.3d at 885–86 (citation omitted). So although RodriguezRodriguez’s vitality in the Sixth Circuit is uncertain, Keeley arguably laid the groundwork for independent statutory interpretation beyond § 3509(a)(8).

To review: The Seventh Circuit’s decision in Correa-Diaz, 

to date, remains an outlier. Of the three Courts of Appeals to 

have followed Restrepo’s path before Esquivel-Quintana, one 

has stayed the course; another has swept § 3509(a)(8) to the 
26

side; and the third has yet to return to the issue but has signaled 

a muscular view of courts’ responsibility to engage in statutory 

interpretation before deferring to the BIA. And in five other 

circuits, Rodriguez-Rodriguez commands no deference at all. 

That is the conclusion compelled by Esquivel-Quintana in this 

context and the position we should adopt today.

III.

To follow the course the Court has charted, we must assess 

§ 1101(a)(43)(A) through the lens of “the least of the acts criminalized by the state statute.” Esquivel-Quintana, 137 S. Ct. at 

1568. The Majority does so by focusing on the fact that involuntary deviate sexual intercourse under Pennsylvania law has 

a minimum mens rea of recklessness as to the proscribed sexual conduct.6

 18 Pa. C.S.A. §§ 3101, 3123(a)(7); see id.

6 Although I take no issue with this approach, I note another 

feature of the Pennsylvania offense: that it can be committed

by “penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than 

good faith medical, hygienic or law enforcement procedures.” 

18 Pa. C.S.A. § 3101; see id. § 3123(a). That feature sets Pennsylvania law apart from that of other states, almost all of which 

define such inappropriate sexual contact in terms of a specific 

“intent to abuse, humiliate, harass, or degrade a person or to 

arouse or gratify the sexual desire of a person.” E.g., Alaska 

Stat. § 26.05.890(h)(5)(B); accord Ala. Code § 13A-6-60(3); 

Ariz. Rev. Stat. Ann. § 13-1419(D)(1)(a); Ark. Code Ann. § 5-

14-101(11); Cal. Penal Code § 288(a); Colo. Rev. Stat. § 18-6-

403(2)(c); Conn. Gen. Stat. § 53a-65(3); Del. Code Ann. 

tit. 11, § 1356(4); D.C. Code § 22-3001(9); Fla. Stat. 

§ 827.071(1)(h); Ga. Code Ann. § 16-6-4(a)(1); Haw. Rev. 
27

Stat. § 712-1210; Idaho Code § 18-1507(1)(c); 720 Ill. Comp. 

Stat. 5/11-0.1; Ind. Code § 35-42-4-3(b); Iowa Code 

§ 709.8(1); Kan. Stat. Ann. § 21-5506(a)(1); Ky. Rev. Stat. 

Ann. § 510.010(7); La. Stat. Ann. § 14:81(A); Me. Stat. tit. 17-

A, § 251(1)(C)(3); Md. Code Ann., Crim. Law § 3-

301(d)(1)(v); Mich. Comp. Laws § 750.145c(1)(g); Miss. Code 

Ann. § 97-5-23(1); Mo. Rev. Stat. § 566.010(6); Mont. Code 

Ann. § 45-5-701(9); Neb. Rev. Stat. § 28-318(5); Nev. Rev. 

Stat. § 201.520(4)–(5); N.H. Rev. Stat. Ann. § 632-A:1(IV); 

N.J. Stat. Ann. § 2C:14-1(d); N.Y. Penal Law § 130.00(3); 

N.C. Gen. Stat. § 14-202.1(a)(1); N.D. Cent. Code § 12.1-20-

02(5); Ohio Rev. Code Ann. § 2907.01(B); Okla. Stat. tit. 44, 

§ 920(F)(1)(c); Or. Rev. Stat. § 163.305(6); 11 R.I. Gen. Laws 

§ 11-37-1(7); S.C. Code Ann. § 16-3-655(C); S.D. Codified 

Laws § 22-22-7.1; Tenn. Code Ann. § 39-15-501(13); Tex. Penal Code Ann. § 21.01(2); Utah Code Ann. § 76-5-404.1(2); 

Vt. Stat. Ann. tit. 13, § 2602(a)(1); Va. Code Ann. § 18.2-

67.10(6); Wash. Rev. Code § 9A.44.010(2); W. Va. Code § 61-

8B-1(6); Wis. Stat. § 948.01(5)(a); Wyo. Stat. Ann. § 6-2-

301(a)(vii)(A); see 18 Pa. C.S.A. § 3101 (defining “[i]ndecent 

contact” as “[a]ny touching of the sexual or other intimate parts 

of the person for the purpose of arousing or gratifying sexual 

desire, in any person”); id. § 3126(a)(8) (criminalizing indecent contact by certain defendants with a “complainant . . . less 

than 16 years of age”); see also 9 Guam Code Ann. 

§ 25.10(a)(8); V.I. Code Ann. tit. 14, § 1699(d). And many of 

our sister circuits, interpreting § 1101(a)(43)(A) or similarly 

worded sentencing enhancements, have concluded that “sexual 

abuse, consistent with its common meaning, connotes the use 

or treatment of so as to injure, hurt, or damage for the purpose 
28

§ 302(c). It concludes, quite rightly, that the generic federal 

offense of “sexual abuse of a minor” requires knowledge as to

the sexual conduct. Under our precedent, this facial difference 

in the elements of the state and generic federal offenses 

of sexual or libidinal gratification.” E.g., United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015) (collecting cases). 

I therefore would approach this case by asking two questions: (i) whether “sexual abuse of a minor,” 8 U.S.C. 

§ 1101(a)(43)(A), in the context of a statute criminalizing de 

minimis penetration with a foreign object, requires an intent to 

humiliate, harass, degrade, or arouse or gratify the libidinal desire of any person; and, if so, (ii) whether Pennsylvania’s 

carveout for “good faith medical, hygienic or law enforcement 

procedures,” 18 Pa. C.S.A. § 3101, is sufficiently broad or instead leaves less culpable conduct subject to prosecution, cf., 

e.g., Alaska Code § 11.81.900(b)(61)(B) (excluding from the 

definition of “sexual contact” acts “that may reasonably be 

construed to be normal caretaker responsibilities for a child” or 

that are “performed for the purpose of administering a recognized and lawful form of treatment that is reasonably adapted 

to promoting the physical or mental health of the person being 

treated”); Ariz. Rev. Stat. § 13-1401(A)(3)(b) (excluding from 

the definition of “sexual contact” any “direct or indirect touching or manipulating during caretaking responsibilities, or interactions with a minor or vulnerable adult that an objective, reasonable person would recognize as normal and reasonable under the circumstances”). Still, I join the Majority in analyzing 

the Pennsylvania statute through the lens of the more general 

mens rea requirement and leave for another day the question of 

any libidinal-gratification-or-degradation requirement.
29

“leave[s] nothing to the ‘legal imagination,’” Zhi Fei Liao v. 

Att’y Gen., 910 F.3d 714, 724 (3d Cir. 2018) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)), and, because 

the state offense sweeps in less culpable conduct than the generic federal offense, our categorical approach analysis is at an 

end. Again, I agree in all respects. See supra 1 & n.1.

We part company on the basis for concluding that 

§ 1101(a)(43)(A) contains a knowledge requirement, a conclusion my esteemed colleagues view as consistent with ongoing 

fealty to Restrepo. Although this approach mirrors the Second 

Circuit’s in Acevedo, I find it unconvincing. In my view, that 

conclusion is more consistent with the open-ended statutory 

construction that Esquivel-Quintana demands than it is with 

the reflexive deference that Restrepo calls for.

The key analytical move in Acevedo is that § 3509(a)(8) 

“does not . . . provide guidance as to the mens rea a defendant 

must possess.” 943 F.3d at 623–24; accord Maj. Op. 16 (“Section 3509(a)(8) does not specify a mens rea requirement, and 

we cannot defer to a nullity . . . .”); id. at 19 (asserting that 

§ 3509(a)(8) addresses “the contours of the substance of the 

offense” but not “the necessary mental state”); id. at 18 n.7

(again asserting that “§ 3509(a)(8) fails to provide the necessary guidance”). There are two things to note about that analytical move. First, it recognizes what many of our sister circuits have acknowledged: that Rodriguez-Rodriguez did not 

adopt § 3509(a)(8) “as a definitive standard or definition” in 

interpreting “sexual abuse of a minor” in all cases. Amos, 

790 F.3d at 519–20 (quoting Rodriguez-Rodriguez, 22 I. & N. 

Dec. at 996); see Rangel-Perez, 816 F.3d at 601 (holding that 

§ 3509(a)(8) is not “the exclusive touchstone for defining the 
30

INA’s generic ‘sexual abuse of a minor’ [offense]”). Rather, 

§ 3509(a)(8) is merely “a guide,” Rodriguez-Rodriguez, 22 I. 

& N. Dec. at 996, and not a comprehensive one. At very least, 

therefore, Restrepo’s statement that “we will define sexual 

abuse of a minor by reference to § 3509(a),” 617 F.3d at 796, 

is not as absolute as it may seem, and there may be times when 

§ 3509(a)(8) offers limited guidance or no guidance at all. See 

id. at 796 n.10 (recognizing that § 3509 is only “a guide” (citation omitted)). 

Second, Acevedo’s analytical move begs the question

whether the lack of language on mens rea in § 3509(a)(8) reflects open-ended silence on the required mental state—rather 

than, say, an indication that the definition has no required mental state. Answering that question is ultimately a matter of statutory interpretation,7 but Acevedo assumes it away. In my 

view, the reason it does so is plain: “Given the inherent seriousness of an aggravated felony and the harsh immigration 

consequences that come from that categorization”—not to 

mention other indications of statutory meaning, including the 

“closely related” provision in 18 U.S.C. § 2243—it is simply 

untenable that any mens rea less than knowledge could form

part of the generic federal definition. Acevedo, 943 F.3d at 

7

It might, for instance, depend on the extent to which

“‘mere omission from a criminal enactment of any mention of 

criminal intent’ [can] be read ‘as dispensing with it,’” United 

States v. Elonis, 135 S. Ct. 2001, 2009 (2015) (citation omitted)—an issue further complicated by whether § 3509(a) 

counts as a “criminal enactment” and whether recklessness can 

be read into such an enactment, see id. at 2012 (reserving this 

question).
31

624. And because § 3509(a)(8) does not require knowledge, it 

is cast aside as not “provid[ing] guidance.” Id. at 623. That 

approach may allow for avoiding an impression of revisiting a 

prior panel decision in light of intervening precedent, but it 

does so at the cost of logical coherence.

To be clear, I take no issue with the Majority’s statutory 

analysis, which cogently explains why “sexual abuse of a minor,” read in context, unambiguously embodies a knowledge 

requirement. But I would ground that analysis in an acknowledgment that at least here, deferring to Rodriguez-Rodriguez is 

inappropriate and, to the extent Restrepo suggests otherwise, it 

is no longer good law.

IV.

For now, Restrepo limps on. Yet there may come a day 

when the conflict between § 3509(a)(8) and other sources of 

statutory meaning is less easily avoided. Should that day 

come, I would recognize that § 3509(a)(8) is but one of many 

sources we must consider in analyzing, using all the tools of 

statutory construction at our disposal, whether a particular aspect of § 1101(a)(43)(A) is ambiguous.