Submitted: October 18, 2017
Petition for Review of an Order of the Board of Immigration
COLLOTON, BEAM, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
Garcia-Urbano, a citizen of Mexico, petitions for review of a
decision of the Board of Immigration Appeals. The Board
upheld the decision of an immigration judge that denied
Garcia-Urbano's application for asylum, withholding of
removal, and protection under the Convention Against Torture.
Garcia-Urbano contends that the Board erred in treating his
conviction for criminal sexual conduct in the third degree
under Minn. Stat. § 609.344, subdiv. 1(b) as an
aggravated felony under the Immigration and Nationality Act
(INA). We conclude that the Board was correct and therefore
deny the petition for review.
was admitted to the United States in April 2014 at the age of
seventeen as a lawful permanent resident. At the age of
eighteen, he pleaded guilty to criminal sexual conduct in the
third degree, in violation of Minn. Stat. § 609.344,
subdiv. 1(b), and to fleeing a police officer in a motor
vehicle, in violation of Minn. Stat. § 609.487, subdiv.
Department of Homeland Security commenced removal proceedings
against Garcia-Urbano, alleging that the two convictions were
grounds for removal from the United States. The Department
maintained that criminal sexual conduct in the third degree
constituted "sexual abuse of a minor, " and that
fleeing a police officer in a motor vehicle was a "crime
of violence." Each conviction would thus be an
"aggravated felony, " see 8 U.S.C. §
1101(a)(43)(A), (F), and each would serve as an independent
ground for removal. See id. §
applied for asylum, but the immigration judge denied the
application, and the Board dismissed Garcia-Urbano's
appeal. The Board concluded that Garcia-Urbano was ineligible
for asylum because his conviction for criminal sexual conduct
was an aggravated felony under the INA. See 8 U.S.C.
§ 1158(b)(2)(A)(ii), (B)(i). Because that conviction
sufficed to make Garcia-Urbano ineligible, the Board found it
unnecessary to address Garcia-Urbano's conviction for
fleeing a police officer in a motor vehicle.
alien who "is convicted of an aggravated felony at any
time after admission" is both removable and ineligible
for asylum. 8 U.S.C. §§ 1227(a)(2)(A)(iii),
1158(b)(2)(A)(ii) & (B)(i). "Sexual abuse of a
minor, " under either federal or state law, is an
aggravated felony. Id. § 1101(a)(43)(A).
Therefore, Garcia-Urbano's conviction in Minnesota for
criminal sexual conduct in the third degree is an aggravated
felony if it constitutes "sexual abuse of a minor"
within the meaning of the INA.
determine whether an offense of conviction is an aggravated
felony, we look only to the elements of the criminal statute
and apply the so-called categorical approach.
Esquivel-Quintana v. Sessions, 137 S.Ct. 1562,
1567-68 (2017). The Minnesota statute at issue makes it a
crime for an actor to engage in "sexual
penetration" with another when the other party is
"at least 13 but less than 16 years of age and the actor
is more than 24 months older." Minn. Stat. §
609.344, subdiv. 1(b). We must consider whether "the
least of the acts criminalized by the state statute falls
within the generic federal definition of sexual abuse of a
minor." Esquivel-Quintana, 137 S.Ct. at 1568.
If so, then Garcia-Urbano was convicted of an aggravated
did not define "sexual abuse of a minor, " and the
Board has interpreted the phrase through case-by-case
adjudication. In this case, Garcia-Urbano argued that his
offense did not qualify because there was not enough
difference in age between him and the victim: he was
eighteen, and she was fifteen. He further urged that his
offense was not sufficiently serious, because "[he] and
his girlfriend essentially had consensual sex (except that
statutory provision prevents use of consent as a
defense)." The Board rejected these contentions,
concluding that "sexual abuse of a minor" does not
require a "meaningful age difference" between a
perpetrator and a victim under the age of sixteen, and that
the state criminal offense was sufficiently serious to
qualify as an aggravated felony. The Board reasoned that
because the Minnesota statute "involves a younger
adolescent victim who is between the ages of 13 and 15 years
old (a minor), and it requires sexual abuse (e.g.,
penetration), it constitutes 'sexual abuse of a minor,
' under our definition."
Garcia-Urbano's petition for review was pending with this
court, the Supreme Court decided Esquivel-Quintana.
In determining whether statutory rape under California law
constituted "sexual abuse of a minor" under the
INA, the Court held "that in the context of statutory
rape offenses focused solely on the age of the participants,
" the INA unambiguously requires the victim of sexual
abuse to be younger than sixteen years old. 137 S.Ct. at
1572-73. Because the California statute encompassed victims
who had turned sixteen, a conviction under that law did not
qualify as an aggravated felony. Id. The Minnesota