holding that sexual conduct element was satisfied by statute requiring the perpetrator’s intent be one “of arousing, appealing to, or gratifying, the lust or passions or sexual desires of that person or of that child”
How later courts described this case
- holding that sexual conduct element was satisfied by statute requiring the perpetrator’s intent be one “of arousing, appealing to, or gratifying, the lust or passions or sexual desires of that person or of that child”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBERTO AZAEL LEON PEREZ, No. 23-204
Agency No.
Petitioner,
A205-041-313
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 5, 2024
Las Vegas, Nevada
Filed June 28, 2024
Before: Milan D. Smith, Jr., Mark J. Bennett, and Daniel P.
Collins, Circuit Judges.
Opinion by Judge Bennett
2 LEON PEREZ V. GARLAND
SUMMARY *
Immigration
Denying Gilberto Azael Leon Perez’s petition for review
of a decision of the Board of Immigration Appeals, the panel
held that the offense of attempted lewdness with a child
under the age of 14, in violation of Nev. Rev. Stat.
§§ 193.330 and 201.230(2), constitutes an attempted “sexual
abuse of a minor” aggravated felony that rendered Leon
Perez removable.
The panel held that this circuit’s precedent in United
States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009), setting
out the generic definition of sexual abuse of a minor, is not
clearly irreconcilable and is indeed consistent with Esquivel-
Quintana v. Sessions, 581 U.S. 385 (2017). The generic
definition requires proof of 1) sexual conduct, 2) with a
minor, 3) that constitutes abuse. The panel explained that
Esquivel-Quintana involved the narrow holding that, in the
context of statutory rape offenses focused solely on the age
of the participants (in that case, 21 and 17 years old), the
generic federal definition of sexual abuse of a minor requires
that the victim be less than 16 years old.
The panel further held that the BIA did not err in
concluding that Leon Perez’s conviction was a categorical
match to Medina-Villa’s generic definition of attempted
sexual abuse of a minor aggravated felony that rendered
petitioner removable.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LEON PEREZ V. GARLAND 3
COUNSEL
Alissa A. Cooley Yonesawa (argued), Thomas & Mack
Legal Clinic, William S. Boyd School of Law, University of
Nevada, Las Vegas, Nevada, for Petitioner.
Craig A. Newell, Jr. (argued), Senior Litigation Counsel
Criminal Immigration Team, Office of Immigration
Litigation, Civil Division; Jennifer J. Keeney, Assistant
Director; Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division; United States Department
of Justice, Washington, D.C.; for Respondent.
OPINION
BENNETT, Circuit Judge:
The Immigration and Nationality Act (“INA”)
authorizes the removal of any noncitizen who, after
admission to the United States, “is convicted of an
aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA
defines “aggravated felony” to include, among other
offenses, “sexual abuse of a minor,” id. § 1101(a)(43)(A),
and “an attempt . . . to commit [sexual abuse of a minor],”
id. § 1101(a)(43)(U). The Department of Homeland
Security (“DHS”) charged petitioner Gilberto Azael Leon
Perez as removable based on his conviction following a
guilty plea to attempted lewdness with a child under the age
of 14 in violation of Nev. Rev. Stat. §§ 193.330, 1
201.230(2). An immigration judge (“IJ”), applying Ninth
1
Nev. Rev. Stat. § 193.330 was renumbered as § 193.153 on October 1,
2021, after Leon Perez’s conviction.
4 LEON PEREZ V. GARLAND
Circuit precedent, found that the conviction was for an
attempted aggravated felony that rendered Leon Perez
removable from the United States. Leon Perez appealed to
the Board of Immigration Appeals (“BIA”), which
dismissed the appeal, thus affirming the IJ’s removal order.
Leon Perez petitions for review.
We must decide whether our precedent, which sets out
the generic definition of sexual abuse of a minor, is clearly
irreconcilable with Esquivel-Quintana v. Sessions, 581 U.S.
385 (2017). We hold that it is not. Because we also hold
that the BIA did not err in concluding that Leon Perez’s
conviction categorically constituted an attempted “sexual
abuse of a minor” aggravated felony that renders him
removable, we deny his petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Leon Perez is a 26-year-old native and citizen of Mexico.
In April 2014, he was admitted to the United States on a U-
3 nonimmigrant visa with permission to remain until May
20, 2016. In 2018, Leon Perez successfully filed for
adjustment of status and became a legal permanent resident.
In 2022, Leon Perez was convicted of attempted
lewdness with a child under the age of 14 in violation of Nev.
Rev. Stat. §§ 193.330, 201.230(2) and, not pertinent to this
appeal, attempted incest in violation of Nev. Rev. Stat.
§§ 193.330, 201.180. 2 He was sentenced to a term of
2
Nev. Rev. Stat. § 201.230(2) provides:
[A] person who commits lewdness with a child under the age of
14 years is guilty of a category A felony and shall be punished
by imprisonment in the state prison for life with the possibility
of parole, with eligibility for parole beginning when a minimum
LEON PEREZ V. GARLAND 5
between 72 and 180 months in prison, but the court
suspended the sentence and placed Leon Perez on probation.
On August 4, 2022, DHS issued Leon Perez a Notice to
Appear (“NTA”). The NTA charged him as removable
under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been
convicted of an aggravated felony as defined under 8 U.S.C.
§ 1101(a)(43)(A), i.e., “sexual abuse of a minor.” DHS later
amended the NTA, charging Leon Perez with having been
convicted of a different aggravated felony, “an
attempt . . . to commit [sexual abuse of a minor],” as defined
in 8 U.S.C. § 1101(a)(43)(U).
The IJ first found that the Nevada attempt statute is a
categorical match to 8 U.S.C. § 1101(a)(43)(U). The IJ then
found that Nev. Rev. Stat. § 201.230, while overbroad, is a
divisible statute with respect to the age of the victim:
And so, as to the, 201.230(2), that conviction
requires that the minor be under 14 years old,
and you inquired as to the divisibility in
whether the modified categorical approach
of 10 years has been served, and may be further punished by a
fine of not more than $10,000.
Nev. Rev. Stat. § 193.330 provides:
1. An act done with the intent to commit a crime, and tending
but failing to accomplish it, is an attempt to commit that crime.
A person who attempts to commit a crime, unless a different
penalty is prescribed by statute, shall be punished as follows:
(a) If the person is convicted of:
(1) Attempt to commit a category A felony, for a category
B felony by imprisonment in the state prison for a
minimum term of not less than 2 years and a maximum
term of not more than 20 years.
6 LEON PEREZ V. GARLAND
applied. And—so the court finds, because of
the age differentiations made within the
statute, that that—in the manner in which he
was convicted, as far as the age being under
14, that that supports, that that is an element,
because it requires that the age be found.
That is an element of that statute. And so, it’s
been established that while the statute is
overbroad, it is divisible. And again, that is
why the court applied the modified
categorical approach.
(emphasis added). The IJ applied the modified categorical
approach and determined that Leon Perez was convicted
under subsection (2) of Nev. Rev. Stat. § 201.230, which
requires the victim to be under the age of 14. Finally, the IJ
applied Ninth Circuit precedent and found that Leon Perez’s
conviction for attempted lewdness with a child under the age
of 14 constituted an attempted aggravated felony that
rendered him removable.
On appeal to the BIA, Leon Perez did not dispute that
Nevada’s attempt offense constitutes a generic attempt for
purposes of 8 U.S.C. § 1101(a)(43)(U). The BIA rejected
Leon Perez’s argument that the generic definition of sexual
abuse of a minor is exclusively defined by 18 U.S.C.
§ 2243(a). 3 Instead, the BIA applied one of the two Ninth
3
18 U.S.C. § 2243(a) provides:
(a) Of a Minor.—Whoever, in the special maritime and
territorial jurisdiction of the United States or in a Federal prison,
or in any prison, institution, or facility in which persons are held
in custody by direction of or pursuant to a contract or agreement
LEON PEREZ V. GARLAND 7
Circuit generic definitions of sexual abuse of a minor, which
encompasses conduct that: (1) is sexual, (2) involves a
minor, and (3) is abusive. See Mero v. Barr, 957 F.3d 1021,
1023 (9th Cir. 2020). 4 And the BIA correctly noted that in
the Ninth Circuit, sexual conduct with a child younger than
14 is “per se abusive.” See United States v. Rocha-Alvarado,
843 F.3d 802, 808 (9th Cir. 2016), cert. denied, 581 U.S.
1019 (2017). 5
The BIA next found that the elements of the lewdness
offense under Nev. Rev. Stat. § 201.230(2) are a categorical
match to the three elements under the Ninth Circuit’s generic
definition of sexual abuse of a minor. As to the first element,
the BIA determined that “[§] 201.230 explicitly prohibits
conduct that is carried out ‘with the intent of arousing,
appealing to, or gratifying the lust or passions or sexual
desires of that person or of that child,’ thereby involving
‘sexual motivation’ on the defendant’s behalf and satisfying
with the head of any Federal department or agency, knowingly
engages in a sexual act with another person who—
(1) has attained the age of 12 years but has not attained the
age of 16 years; and
(2) is at least four years younger than the person so
engaging;
or attempts to do so, shall be fined under this title, imprisoned
not more than 15 years, or both.
4
As discussed below, we refer to this generic definition of sexual abuse
of a minor as the Medina-Villa generic definition.
5
The BIA also noted that the Ninth Circuit has held that the Supreme
Court’s holding and its discussion of the generic definition of “sexual
abuse of a minor” in Esquivel-Quintana v. Sessions, 581 U.S. 385
(2017), only applies to statutory rape offenses. See Quintero-Cisneros
v. Sessions, 891 F.3d 1197, 1200 (9th Cir. 2018).
8 LEON PEREZ V. GARLAND
the requirement that the conduct be ‘sexual.’” See Quintero-
Cisneros v. Sessions, 891 F.3d 1197, 1202 (9th Cir. 2018).
The BIA found that, contrary to Leon Perez’s contention,
“[p]hysical contact between the perpetrator and victim is not
dispositive” when the conduct is committed for the purposes
of sexual gratification and the child is the direct object of the
perpetrator’s actions. See Mero, 957 F.3d at 1023. The BIA
also determined that the third element was satisfied because
the minor victim was under the age of 14, and thus the
conduct was “per se abusive.”
II. DISCUSSION
“Any alien who is convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). “One of the many crimes that
constitutes an aggravated felony under the INA is ‘sexual
abuse of a minor.’” Esquivel-Quintana, 581 U.S. at 387–88
(quoting 8 U.S.C. § 1101(a)(43)(A)). Another is an “attempt
. . . to commit [such] an [aggravated felony] offense.” 8
U.S.C. § 1101(a)(43)(U).
The INA does not expressly define sexual abuse of a
minor. To determine whether Leon Perez’s Nevada state
court conviction for attempted lewdness with a child under
the age of 14 constitutes an attempted “sexual abuse of a
minor” aggravated felony, we employ the “categorical
approach.” See Mero, 957 F.3d at 1022; Quintero-Cisneros,
891 F.3d at 1200. We “‘look only to the statutory
definitions’—i.e., the elements—of a defendant’s prior
offenses, and not ‘to the particular facts underlying those
convictions’” when comparing a conviction to a particular
federal generic offense. Descamps v. United States, 570
U.S. 254, 261 (2013) (quoting Taylor v. United States, 495
U.S. 575, 600 (1990)).
LEON PEREZ V. GARLAND 9
For the limited purpose of “help[ing to] implement the
categorical approach,” id. at 263, the Supreme Court has
recognized a “narrow range of cases” in which courts may
apply the “modified categorical approach,” id. at 261
(quoting Taylor, 495 U.S. at 602). The modified categorical
approach allows us to look beyond the statutory text to a
limited set of documents to determine the elements of the
state offense of conviction when certain alternative elements
of the state crime would match the federal generic crime, and
others would not. See id. at 262. The Descamps Court
explained that the modified categorical approach may be
used only when a statute is divisible—i.e., “lists multiple,
alternative elements, and so effectively creates ‘several
different . . . crimes.’” Id. at 264 (alteration in original)
(quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)).
Leon Perez does not dispute that Nev. Rev. Stat.
§ 193.330 is a categorical match to the generic definition of
attempt in 8 U.S.C. § 1101(a)(43)(U). Nor does he dispute
that Nev. Rev. Stat. § 201.230 is a divisible statute with
respect to whether the victim was under the age of 14. Thus,
the only issue for us to decide is whether the offense of
lewdness with a child under the age of 14 under Nev. Rev.
Stat. § 201.230(2) constitutes “sexual abuse of a minor”
under 8 U.S.C. § 1101(a)(43)(A).
“We have developed two definitions specifying the
elements of the federal generic offense of sexual abuse of a
minor.” Quintero-Cisneros, 891 F.3d at 1200. The first was
set forth in Estrada-Espinoza v. Mukasey, 546 F.3d 1147
(9th Cir. 2008) (en banc), overruled on other grounds as
recognized by Ho Sang Yim v. Barr, 972 F.3d 1069, 1082
(9th Cir. 2020), and applies to statutory rape types of
offenses (“Estrada-Espinoza generic definition”).
10 LEON PEREZ V. GARLAND
Quintero-Cisneros, 891 F.3d at 1200. 6 “The second
definition, which applies to all other offenses,” id., was first
set forth in United States v. Medina-Villa, 567 F.3d 507 (9th
Cir. 2009), and then clarified in Quintero-Cisneros, 891 F.3d
at 1200, and Mero, 957 F.3d at 1023 (“Medina-Villa generic
definition”). The Medina-Villa generic definition “requires
proof of three elements: ‘(1) sexual conduct, (2) with a
minor, (3) that constitutes abuse.’” Mero, 957 F.3d at 1023
(quoting Quintero-Cisneros, 891 F.3d at 1200). “[A] state
offense will be a categorical match for ‘sexual abuse of a
minor’ if it fits either definition.” United States v. Farmer,
627 F.3d 416, 421 (9th Cir. 2010).
A. The Medina-Villa Generic Definition Is Not Clearly
Irreconcilable with Esquivel-Quintana.
The government argues that the BIA correctly applied
the Medina-Villa generic definition. Leon Perez, however,
6
We have established these elements for the Estrada-Espinoza generic
definition: “(1) a mens rea level of knowingly; (2) a sexual act; (3) with
a minor between the ages of 12 and 16; and (4) an age difference of at
least four years between the defendant and the minor.” Estrada-
Espinoza, 546 F.3d at 1152, 1158. We took those elements from 18
U.S.C. § 2243:
We begin by determining the generic elements of the
crime “sexual abuse of a minor.” In the absence of
specific congressional guidance as to the elements of
a crime, courts have been left to determine the “generic
sense in which the term is now used in the criminal
codes of most States.” Fortunately, we are not faced
with that circumstance here because Congress has
enumerated the elements of the offense of “sexual
abuse of a minor” at 18 U.S.C. § 2243.
Estrada-Espinoza, 546 F.3d at 1152 (citation omitted) (quoting Taylor,
495 U.S. at 598).
LEON PEREZ V. GARLAND 11
essentially argues that we should overrule the Medina-Villa
generic definition because it is clearly irreconcilable with
intervening higher authority: Esquivel-Quintana, 581 U.S.
385. Leon Perez argues that after overruling the Medina-
Villa generic definition, our next step should be comparing
the Nevada offense to 18 U.S.C. § 2243(a).
Nev. Rev. Stat. § 201.230 punishes “any lewd or
lascivious act.” Id. § 201.230(1)(a). Leon Perez argues that
the generic definition of sexual abuse of a minor in 18 U.S.C.
§ 2243 (the Estrada-Espinoza generic definition) requires,
“at minimum, intentional touching of genitalia underneath
[the minor’s] clothing.” See 18 U.S.C. § 2246(2)(A)–(D)
(defining “sexual act” as an act involving actual physical
contact with genitalia or the anus, id. § 2246(2)(A)–(C), or
“the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of
16 years,” id. § 2246(2)(D)). Leon Perez contends that
because the Medina-Villa generic definition can no longer
be used, and because the Nevada statute punishes a wider
range of conduct than the Estrada-Espinoza generic
definition, the Nevada statute is overbroad. Thus, according
to Leon Perez, his conviction is not for an aggravated felony
and cannot render him removable.
We need not decide whether Leon Perez is correct in
arguing that Nev. Rev. Stat. § 201.230(2) is not a categorical
match to 18 U.S.C. § 2243, as we decline to overrule the
Medina-Villa generic definition. Even assuming there is
doubt as to whether we have already affirmed that the
Medina-Villa generic definition is fully consistent with
Esquivel-Quintana, we clarify today that the Medina-Villa
generic definition is consistent with (and certainly not
irreconcilable with) Esquivel-Quintana.
12 LEON PEREZ V. GARLAND
First, the Court’s decision in Esquivel-Quintana is
narrow. The Court was “decid[ing] whether a conviction
under a state statute criminalizing consensual sexual
intercourse between a 21-year-old and a 17-year-old
qualifies as sexual abuse of a minor under the INA.”
Esquivel-Quintana, 581 U.S. at 388. The Court held 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.” Id. at 398 (emphasis
added). The Court considered a “closely related federal
statute, 18 U.S.C. § 2243[(a)],” finding that it “provide[d]
further evidence that the generic federal definition of sexual
abuse of a minor incorporates an age of consent of 16.” Id.
at 394.
But the Court neither established a complete generic
definition for “sexual abuse of a minor,” nor even suggested
that § 2243(a) should provide the exclusive generic
definition for “sexual abuse of a minor.” Instead, the Court
cabined its holding to “the context of statutory rape offenses
focused solely on the age of the participants.” Id. at 398. In
reaching its holding, the Court cautioned against
“import[ing] [§ 2243(a)] wholesale into the INA.” Id. at
395. “One reason,” as the Court noted, is that “the INA does
not cross-reference § 2243(a), . . . [while] other aggravated
felonies in the INA are defined by cross-reference to other
provisions of the United States Code.” Id. (emphasis added).
“Another” reason “is that § 2243(a) requires a 4-year age
difference between the perpetrator and the victim,” and
“[c]ombining that element with a 16-year age of consent
would categorically exclude the statutory rape laws of most
[s]tates.” Id. For these two reasons, the Court “rel[ied] on
§ 2243(a) for evidence of the meaning of sexual abuse of a
LEON PEREZ V. GARLAND 13
minor, but not as providing the complete or exclusive
definition.” Id. (emphasis added).
The narrow holding of Esquivel-Quintana thus does not
impact or undermine our reliance on the Medina-Villa
generic definition for all other sex offenses involving
children, other than the type of offense explicitly addressed
in Esquivel-Quintana. See Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc) (“[T]he relevant court of last
resort must have undercut the theory or reasoning underlying
the prior circuit precedent in such a way that the cases are
clearly irreconcilable.”).
Indeed, the Court’s refusal to treat § 2243(a) “as
providing the complete or exclusive definition” of sexual
abuse of a minor, Esquivel-Quintana, 581 U.S. at 395, is
consistent with what we originally noted in Medina-Villa.
There, we had to decide whether a California state offense
similar to the one here constituted “sexual abuse of a minor”
and thus was a “crime of violence” that warranted a sixteen-
level increase under U.S.S.G. § 2L1.2. Medina-Villa, 567
F.3d at 509. Holding that it did, we noted that “one of the
elements of the generic offense that we extrapolated from
§ 2243 is that the minor be between the ages of twelve and
sixteen,” and “[i]f the generic elements articulated in
Estrada-Espinoza comprise all the conduct constituting
‘sexual abuse of a minor,’ then no child under the age of
twelve would be contemplated by the term ‘minor,’ and
sexual crimes against children under twelve would not be
‘crimes of violence’ subjecting the offenders to a sixteen-
level increase.” Id. at 516.
Second, we have already reaffirmed—if not directly
stated—the applicability of the Medina-Villa generic
definition in two post-Esquivel-Quintana opinions. In both
14 LEON PEREZ V. GARLAND
Quintero-Cisneros, 891 F.3d at 1200, and Mero, 957 F.3d at
1022–23, we explicitly referenced Esquivel-Quintana, while
reiterating that the Ninth Circuit has “developed two
different definitions of ‘sexual abuse of a minor,’ one
applicable to statutory rape offenses, the other applicable to
all other offenses,” Mero, 957 F.3d at 1023; see also
Quintero-Cisneros, 891 F.3d at 1200 (“We have developed
two definitions specifying the elements of the federal generic
offense of sexual abuse of a minor. The first definition is not
relevant for our purposes, as it applies mainly to statutory
rape offenses.”).
Third, we find persuasive the decisions by other circuit
courts which have also recognized that Esquivel-Quintana
did not impact their prior precedent on the generic definition
of “sexual abuse of a minor,” except in their application to
statutory rape types of offenses. For example, in Cabeda v.
Attorney General, 971 F.3d 165 (3d Cir. 2020), the Third
Circuit held:
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
[v. Attorney General, 617 F.3d 787 (3rd Cir.
2010)] in a way that would permit us to
ignore that precedent.
Id. at 171. The Second and Seventh Circuits have reached
similar conclusions. See Acevedo v. Barr, 943 F.3d 619, 623
LEON PEREZ V. GARLAND 15
(2d Cir. 2019) (holding that Esquivel-Quintana did not
impact the Second Circuit’s prior grant of deference to the
BIA’s reliance on 18 U.S.C. § 3509(a)(8) as the generic
definition for sexual abuse of a minor); Correa-Diaz v.
Sessions, 881 F.3d 523 (7th Cir. 2018) (explaining that the
Supreme Court “declined to rule more broadly on the generic
federal definition,” id. at 527, 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,” id. at 528).
Because the Medina-Villa generic definition is not
clearly irreconcilable—and is indeed consistent—with
Esquivel-Quintana, it remains a controlling test that we must
apply. See Miller, 335 F.3d at 900.
B. The BIA Did Not Err in Its Categorical Analysis.
Leon Perez was convicted under Nev. Rev. Stat.
§ 193.330 (the attempt statute) and § 201.230(2). Under
Nev. Rev. Stat. § 201.230(1)(a), a defendant is guilty of the
offense of lewdness with a child if the defendant “[i]s 18
years of age or older” and “willfully and lewdly commit[ted]
any lewd or lascivious act, other than acts constituting the
crime of sexual assault, upon or with the body, or any part
or member thereof, of a child under the age of 16 years, with
the intent of arousing, appealing to, or gratifying, the lust or
passions or sexual desires of that person or of that child.”
When the victim of the lewdness offense is under the age of
14, then subsection (2) of Nev. Rev. Stat. § 201.230 applies:
“[A] person who commits lewdness with a child under the
age of 14 years is guilty of a category A felony . . . .” Id.
§ 201.230(2). Again, we need not decide whether Nev. Rev.
Stat. § 201.230(2) is a categorical match to the Estrada-
16 LEON PEREZ V. GARLAND
Espinoza generic definition, because it is a categorical match
to the Medina-Villa generic definition.
The Medina-Villa generic definition of sexual abuse of a
minor “requires proof of three elements: ‘(1) sexual conduct,
(2) with a minor, (3) that constitutes abuse.’” Mero, 957
F.3d at 1023 (quoting Quintero-Cisneros, 891 F.3d at 1200).
The first element—“sexual conduct”—of the Medina-
Villa generic definition is satisfied because Nev. Rev. Stat.
§ 201.230 includes a mens-rea requirement that the
perpetrator’s intent be one “of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person
or of that child.” Id. § 201.230(1)(a); see Rocha-Alvarado,
843 F.3d at 808. In Rocha-Alvarado, we held that a
conviction under a similar Oregon statute “necessarily
involves conduct that is ‘sexual.’” 843 F.3d at 808. That is
because “[t]he Oregon statute require[d] simply that the
touching was done for the purpose of sexual gratification,
placing the focus on the intent rather than the manner of the
touching.” Id. “[R]egardless of the manner of touching, i.e.,
outside or inside of the clothes, the Oregon statute . . .
criminalizes conduct that is sexual as it expressly defines
‘sexual contact’ through its relation to sexual gratification.”
Id.
The second element—“with a minor”—is also satisfied.
That generic element asks “whether the statute protects a
minor.” Medina-Villa, 567 F.3d at 513. And here, the
statute protects minors, as it requires the victim of the sexual
conduct to be a minor. See Nev. Rev. Stat. § 201.230(2)
(applying to offenses under § 201.230 in which the victim is
under the age of 14).
The third element—“that constitutes abuse”—is also
satisfied. The sexual conduct prohibited by Nev. Rev. Stat.
LEON PEREZ V. GARLAND 17
§ 201.230(2) is per se abusive because the victim must be a
child under the age of 14. See Quintero-Cisneros, 891 F.3d
at 1202 (“We have held that sexual conduct involving
children under the age of 14 is per se abusive.”). 7 Leon
Perez argues that our reliance on the “per se abusive” Ninth
Circuit precedent is incorrect because “it absolves courts of
their obligation to apply the categorical approach and it
misapplies the precedent from which it originated.” But
Leon Perez points to no “change in the relevant statutes or
regulations, nor in any governing authority, notably an
intervening decision of the Supreme Court.” United States
v. Ramos-Medina, 706 F.3d 932, 938 (9th Cir. 2013).
“Absent such a change, only an en banc panel of our court
may overrule or revise the binding precedent established by
a published opinion.” Id. at 938–39. We are thus bound to
apply this court’s “per se abusive” line of precedent. See
supra Note 7.
Because Nevada’s offense of lewdness with a child
under the age of 14 under Nev. Rev. Stat. § 201.230(2)
categorically matches all three elements of the Medina-Villa
generic definition of “sexual abuse of a minor,” Leon Perez’s
conviction for attempting to commit that offense qualifies as
7
See Rocha-Alvarado, 843 F.3d at 808 (“[O]ur precedent establishes that
sexual contact with a child below the age of fourteen is per se abusive.”);
see also United States v. Valencia-Barragan, 608 F.3d 1103, 1107 (9th
Cir. 2010) (“Sexual conduct with younger children is per se abusive.”);
Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 (9th Cir. 2003) (“[U]se
of young children as objects of sexual gratification [as prohibited by
former Nev. Rev. Stat. § 201.230] is corrupt, improper, and contrary to
good order. It constitutes maltreatment, no matter its form.”) (reaching
the same conclusion on a pre-2015 version of the same statute that only
applied to offenses involving victims under the age of 14).
18 LEON PEREZ V. GARLAND
an attempted “sexual abuse of a minor” aggravated felony
that renders him removable from the United States.
III. CONCLUSION
The Medina-Villa generic definition remains controlling
as it is not clearly irreconcilable—and is indeed consistent—
with Esquivel-Quintana, 581 U.S. 385. And the BIA did not
err in concluding that Leon Perez’s conviction categorically
constituted an attempted “sexual abuse of a minor”
aggravated felony that renders him removable.
PETITION FOR REVIEW DENIED.