Nelida Cabeda v. Attorney General United States ( 2020 )

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)
_______________
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
2
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
3
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,
4
“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
5
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).
6
§ 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
7
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
8
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 Rodriguez-
Rodriguez] 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.
9
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 21st
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 then-
current 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,
10
(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
11
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
12
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 Esquivel-
Quintana 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 Esquivel-
Quintana 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
13
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.
14
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 Mondragon-
Gonzalez 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 Esquivel-
Quintana, 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 Esquivel-
Quintana 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.
15
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 Esquivel-
Quintana, 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
16
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).
17
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); Rangel-
Perez, 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.
18
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
19
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”);
20
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 date-
rape 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’”).
21
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.
22
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
23
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
24
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.
25
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
26
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
27
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 “well-
settled” 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
28
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 gap-
filling 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
29
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).
30
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.
31
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.
1
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).
2
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. Duenas-
Alvarez, 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
3
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.
4
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
5
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
6
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 well-
settled 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
7
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
8
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).
9
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”).
10
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
11
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.
12
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.
13
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 con-
duct. 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 regard-
less 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—alt-
hough the result is counterintuitive if not bizarre—Cabeda’s
crime of conviction does not fit within the generic federal of-
fense of “sexual abuse of a minor,” and she can neither be re-
moved nor denied cancellation of removal on that basis.
I write separately because I reach the first of those conclu-
sions by a different path. The Majority rejects the argument
that Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), re-
quires 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.
1
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 Rodriguez-
Rodriguez rejected as an interpretive guide—as well as statu-
tory and contextual clues that those decisions discounted or ig-
nored. So in the end, the Majority looks beyond Restrepo and
finds a knowledge requirement by adopting the interpretive ap-
proach of Esquivel-Quintana.
I would reach that result more directly by holding that Es-
quivel-Quintana abrogates the bases on which Restrepo rested.
Under the approach set out in Esquivel-Quintana, before deem-
ing 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 dis-
counted sources of statutory meaning on which Esquivel-Quin-
tana relied, assessed ambiguity at the broadest level, and re-
quired deference to Rodriguez-Rodriguez for all future inter-
pretive questions involving § 1101(a)(43)(A). Restrepo is a
relic of an era when deference was far more reflexive and au-
tomatic than it is today and, after Esquivel-Quintana, we can
no longer follow Restrepo in uncritically relying on Rodriguez-
Rodriguez or § 3509(a)(8).
2
I tackle these issues in three steps. I first highlight the fun-
damental inconsistencies between Esquivel-Quintana and Re-
strepo, which reveal that the latter decision’s assessment of
ambiguity was erroneous. I then explore the case law on Ro-
driguez-Rodriguez after Esquivel-Quintana to show why I
view the issue as unsettled. Finally, I explain why the conclu-
sion that § 1101(a)(43)(A) requires knowledge—with which I
wholeheartedly agree—flows not from Restrepo or Rodriguez-
Rodriguez, but from Esquivel-Quintana.
I.
The Majority ably summarizes the contours of Esquivel-
Quintana’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 defini-
tion Cabeda put forward, and that the BIA accepted, was “the
engaging in sexual contact with a person who is below a spec-
ified age or who is incapable of giving consent because of age
3
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-Ro-
driguez. The Majority acknowledges that more complicated
question, observing that there is “some tension between” Re-
strepo 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 incon-
sistent 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 ge-
neric definition borders on the fatuous. That language, which
came from Merriam-Webster’s Dictionary of Law, see Es-
quivel-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 argu-
ment, 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).
4
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) (in-
ternal quotation marks and citation omitted). But Restrepo put
the cart before the horse, signaling that deference was appro-
priate 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 con-
sidered. Viewed through the lens of Esquivel-Quintana, Re-
strepo erred in concluding that § 1101(a)(43)(A) was across-
the-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.
5
WL 7384847; Brief for the Respondent at 36–55, Esquivel-
Quintana, 137 S. Ct. 1562 (No. 16-54), 2017 WL 345128; Re-
ply 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 fore-
close[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 applica-
tion of all the tools in its statutory toolkit. See also Epic Sys.
Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (noting that “Chev-
ron 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 mi-
nor,” 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
6
further statutory analysis—we concluded that because
§ 1101(a)(43)(A) lacks an express definition and cross-refer-
ences, its “precise definition . . . is most assuredly not clear and
unambiguous.”4 Id.
Put plainly, in Restrepo we waved the white flag of ambi-
guity far too readily, and without performing the rigorous anal-
ysis Esquivel-Quintana demands. But that is not Restrepo’s
only flaw.
B.
Esquivel-Quintana also clarified that in assessing ambigu-
ity under step one of Chevron, courts must define the interpre-
tive question narrowly. Said differently, courts must ask not
whether a statute is ambiguous in general, but whether it is am-
biguous as to the specific legal issue in the case. That, too, is
impossible to square with Restrepo, which approached the is-
sue 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 under-
stood 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. Ac-
cordingly, it appears Rodriguez-Rodriguez colored what
should have been an independent analysis of statutory meaning
at step one of Chevron.
7
every element of the federal generic offense was clear from the
text. Instead, it limited its interpretive task to the specific cat-
egory of crimes it faced: “statutory rape offenses that criminal-
ize sexual intercourse based solely on the age of the partici-
pants.” Esquivel-Quintana, 137 S. Ct. at 1568. Because it did
so, the Court could assess § 1101(a)(43)(A) through an appro-
priately tailored lens and conclude that the generic age of con-
sent, 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 en-
dorsement 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 sub-
stantial 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 doc-
ument to qualify as a “notice to appear” triggering the stop-
time rule, the Court narrowed the question presented to the one
8
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] sup-
plied a clear and unambiguous answer to the interpretive ques-
tion at hand,” id. at 2113 (emphasis added). Once again, there-
fore, the Court made clear that statutory ambiguity—without
which deference to an agency is inappropriate—must be as-
sessed through the lens of the precise dispute. See also Niel-
sen v. Preap, 139 S. Ct. 954, 963–65 (2019) (resolving an in-
terpretive 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 ad-
dress the parties’ Chevron arguments because, “after applying
traditional tools of interpretation” to the specific question pre-
sented, the Court was “left with no uncertainty that could war-
rant 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 mi-
nor’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) ambig-
uous, see id. at 793, 795. Instead, we analyzed the statute at
9
the highest level of generality, focusing on the lack of cross-
references and explanatory parentheticals, id. at 792–93, and
on general clues drawn from surrounding provisions and con-
temporaneous legislation, id. at 793–95. It is no surprise that
such a general review of the statute “le[ft] us in a state of inter-
pretive uncertainty,” id. at 795: Without the benefit of deci-
sions 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 spe-
cific 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) (Chev-
ron step one requires courts to narrow in on “the precise ques-
tion 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 re-
vealed that Restrepo’s statutory analysis was deeply flawed. In
five respects, we either misinterpreted or ignored key clues
about § 1101(a)(43)’s meaning.
10
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 Immi-
gration 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 (cod-
ified at 18 U.S.C. § 2243(a)). So Restrepo invoked the same-
act canon, urging us to interpret “sexual abuse of a minor” un-
der § 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 prece-
dent for this proposition—that terms used “in separate and dis-
tinct 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
11
consistently. See id. (second and third alterations in original)
(internal quotation marks and citation omitted). Here, the con-
flict could hardly be more evident: Restrepo held inapplicable
a canon of statutory construction that Esquivel-Quintana em-
ployed 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 Re-
strepo, 617 F.3d at 794. We rejected that argument as incon-
sistent 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 nosci-
tur a sociis canon was highly useful because it revealed “that
sexual abuse of a minor encompasses only especially egre-
gious felonies.” Id. (emphasis added). That insight is not just
12
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 deporta-
bility.” 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 Es-
quivel-Quintana. In fact, after a thorough review of the statu-
tory text and context, the Court concluded the opposite. Sec-
tion 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 (inter-
nal 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 addi-
tional, 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 of-
fenses should play in the analysis of a federal generic offense
13
like § 1101(a)(43)(A). Restrepo was convicted of a New Jer-
sey statute criminalizing “an act of sexual contact,” N.J. Stat.
Ann. § 2C:14-3(a), which includes intentional touching of in-
timate 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 de-
fined as intentional touching “not through the clothing,” id.
§ 2246(2)(D). In Restrepo, we signaled our concern that rely-
ing 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 Esquivel-
Quintana: Faced with a state statute criminalizing consensual
sex between 21- and a 17-year-old, 137 S. Ct. at 1567, it of-
fered 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 categor-
ical approach on its head by defining the generic federal of-
fense of sexual abuse of a minor as whatever is illegal under
the particular law of the State where the defendant was con-
victed.” 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 crim-
inal codes for additional evidence,” it did so only after developing
14
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 under-
standing 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 Es-
quivel-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 Es-
quivel-Quintana, we should not hesitate to ask whether we in-
appropriately “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 con-
cluded, would exclude too many state offenses from the ge-
neric 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.
15
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 prop-
osition 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 hold-
ing—namely, that a statute criminalizing the “intentional touch-
ing . . . , either directly or through clothing,” of a minor’s sensi-
tive areas “for the purpose of degrading or humiliating the vic-
tim or sexually arousing or sexually gratifying the actor” quali-
fies 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[]
16
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 inter-
pretive guidance but declines to apply the same lens to Re-
strepo. 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 incon-
sistent with current doctrine, see Maj. Op. 13 n.4—would con-
tinue 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 in-
stance, that “the Supreme Court ‘typically avoids methodolog-
ical 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 su-
preme Court.’” Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n.5
17
(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 Bu-
reau 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] de-
bate.” 792 F.3d at 307 n.8. Instead, we applied the interpretive
method called for by precedent. See id. The Majority has ap-
parently 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 sud-
denly free to discard as nonbinding the Supreme Court’s in-
structions on “interpretive methodologies,” id. at 13 n.4 (cita-
tion omitted)—for instance, that we may defer to an agency’s
interpretation only if the statute “is ambiguous” and the inter-
pretation “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 tradi-
tional canons of statutory construction,” United States v.
Shabani, 513 U.S. 10, 17 (1994). What are those if not “inter-
pretive methodologies” addressing how to understand civil and
criminal enactments?—and yet we follow them just as we fol-
low 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.
18
2019) (Chevron); United States v. Barbosa, 271 F.3d 438, 455
(3d Cir. 2001) (lenity).
Third, perhaps searching for a limiting principle, the Ma-
jority suggests we can ignore methodological guidance from
the Supreme Court “when the decisions employing [such guid-
ance] do not purport to overrule past precedent.” Maj. Op. 13–
14 n.4. Yet it is unclear exactly what “past precedent” the Es-
quivel-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 Cir-
cuit and every other Court of Appeals and identify each possi-
ble 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 over-
ruled. 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 prece-
dent,” 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 Esquivel-
Quintana and Restrepo cannot be swept aside as if they were
purely “methodological,” Maj. Op. 13 n.4. As discussed in de-
tail 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
19
and meaning, particularly the expansive reading of the statute
on which Restrepo (and Rodriguez-Rodriguez) so heavily de-
pended. Those substantive conflicts fall beyond the methodo-
logical-stare-decisis argument, whatever its merits, and go un-
addressed by my esteemed colleagues.
* * *
In brief, a close look at Esquivel-Quintana reveals that Re-
strepo found ambiguity in § 1101(a)(43)(A) too quickly, too
generally, and by ignoring or misinterpreting valuable evi-
dence of statutory meaning. And as a result, Restrepo errone-
ously suggested that under Chevron step one, it would always
be appropriate to refer to the BIA’s interpretation in Rodriguez-
Rodriguez.5
5
Because in my view § 1101(a)(43)(A) unambiguously re-
quires 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 sev-
eral of the flaws that Esquivel-Quintana has revealed in Re-
strepo. Like Restrepo, Rodriguez-Rodriguez hinged on an “ex-
pansi[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
20
As a result, I cannot agree this is simply a matter of “Chev-
ron deference[’s] [being] unnecessary in one specific instance”
and not in another, Maj. Op. 12. The Court’s analysis in Es-
quivel-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 in-
volving § 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-Ro-
driguez 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 enti-
tled to deference “[b]eyond [its] limited holding” on indecent
exposure offenses).
21
II.
My learned colleagues view the idea that Restrepo’s defer-
ence 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 conclu-
sion, 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 Es-
quivel-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 peti-
tioner’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 un-
der 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 “Es-
quivel-Quintana has no application . . . at all,” id., in a case
22
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 prece-
dent.
Because nothing in Mondragon-Gonzalez addressed the ef-
fect 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 Rodri-
guez-Rodriguez in the aftermath of Esquivel-Quintana.
Many of those circuits reject outright the notion that Rodri-
guez-Rodriguez is entitled to deference. Several reached that
conclusion before Esquivel-Quintana. See Estrada-Espi-
noza 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 de-
fined elements of the generic federal offense, did not set down
a definitive interpretation entitled to Chevron deference), over-
ruled 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-Es-
pinoza); Rangel-Perez v. Lynch, 816 F.3d 591, 598–601 (10th
Cir. 2016) (same), abrogated in other part by Esquivel-Quin-
tana, 137 S. Ct. 1562; see also Contreras v. Holder, 754 F.3d
286, 292–93 (5th Cir. 2014) (suggesting that Rodriguez-
23
Rodriguez’s definition may “not [be] a reasonable one”). An-
other has implicitly joined the fold since. See Garcia-Ur-
bano 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 interpreta-
tion). 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 Sec-
ond, 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 any-
thing but uniform. To be sure, in Correa-Diaz v. Sessions,
881 F.3d 523 (7th Cir. 2018), the court adhered to pre-Es-
quivel-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 side-
stepped § 3509(a)(8) altogether and instead performed a wide-
24
ranging analysis of “the structure of the INA, the inherent egre-
gious nature of an aggravated felony, and closely-related stat-
utes,” id. at 624—including § 2243, which Esquivel-Quintana
had cited and which Rodriguez-Rodriguez had rejected. In es-
sence, 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 stat-
utory analysis and reluctance to give unwarranted deference to
the BIA. It rejected the BIA’s interpretation that “rape” in-
cludes 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 defend-
ant was convicted,” 137 S. Ct. at 1570. And, as in Esquivel-
Quintana, Keeley found “no need” to resort to Chevron defer-
ence after fully exhausting the tools of statutory construction.
910 F.3d at 885–86 (citation omitted). So although Rodriguez-
Rodriguez’s vitality in the Sixth Circuit is uncertain, Keeley ar-
guably laid the groundwork for independent statutory interpre-
tation 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
25
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 crim-
inalized by the state statute.” Esquivel-Quintana, 137 S. Ct. at
1568. The Majority does so by focusing on the fact that invol-
untary deviate sexual intercourse under Pennsylvania law has
a minimum mens rea of recklessness as to the proscribed sex-
ual 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 an-
other 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 Penn-
sylvania 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.
26
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. Pe-
nal 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 inde-
cent 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
27
§ 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. Ma-
teen, 806 F.3d 857, 861 (6th Cir. 2015) (collecting cases).
I therefore would approach this case by asking two ques-
tions: (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 de-
sire 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 in-
stead 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 recog-
nized 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 touch-
ing or manipulating during caretaking responsibilities, or inter-
actions with a minor or vulnerable adult that an objective, rea-
sonable person would recognize as normal and reasonable un-
der 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.
28
“leave[s] nothing to the ‘legal imagination,’” Zhi Fei Liao v.
Att’y Gen., 910 F.3d 714, 724 (3d Cir. 2018) (quoting Gonza-
les v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)), and, because
the state offense sweeps in less culpable conduct than the ge-
neric 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 conclu-
sion 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 (“Sec-
tion 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 Ҥ 3509(a)(8) fails to provide the neces-
sary guidance”). There are two things to note about that ana-
lytical move. First, it recognizes what many of our sister cir-
cuits 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
29
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” (cita-
tion omitted)).
Second, Acevedo’s analytical move begs the question
whether the lack of language on mens rea in § 3509(a)(8) re-
flects open-ended silence on the required mental state—rather
than, say, an indication that the definition has no required men-
tal state. Answering that question is ultimately a matter of stat-
utory interpretation,7 but Acevedo assumes it away. In my
view, the reason it does so is plain: “Given the inherent seri-
ousness 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 omit-
ted)—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).
30
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 mi-
nor,” read in context, unambiguously embodies a knowledge
requirement. But I would ground that analysis in an acknowl-
edgment 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 as-
pect of § 1101(a)(43)(A) is ambiguous.
31