Nelida Cabeda v. Attorney General United States

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