Gilberto Azael Leon Perez, a Mexican national and legal permanent resident, was convicted in Nevada of attempted lewdness with a child under the age of 14. Following this conviction, the Department of Homeland Security charged him with removability under the Immigration and Nationality Act, arguing that his offense constituted an aggravated felony. Specifically, the government charged him with attempting to commit 'sexual abuse of a minor.' The immigration judge and the Board of Immigration Appeals (BIA) both agreed, applying Ninth Circuit precedent to find that the Nevada statute categorically matched the federal generic definition of the crime. Perez appealed, arguing that the Supreme Court's decision in Esquivel-Quintana v. Sessions had undermined the circuit's prior precedent, rendering the Nevada statute overbroad and his conviction ineligible for removal.
The court addressed whether the Ninth Circuit's established 'Medina-Villa generic definition' of sexual abuse of a minor remained valid following the Supreme Court's 2017 decision in Esquivel-Quintana. The petitioner argued that Esquivel-Quintana, which held that statutory rape offenses focused solely on age require the victim to be under 16, effectively overruled the Medina-Villa definition. The court rejected this, clarifying that Esquivel-Quintana was a narrow holding limited to 'statutory rape offenses focused solely on the age of the participants.' The Supreme Court explicitly cautioned against importing the specific elements of 18 U.S.C. § 2243(a) wholesale into the INA. Consequently, the Medina-Villa definition, which applies to all other offenses involving minors, remains controlling. Under this definition, the court analyzed Perez's conviction against three elements: (1) sexual conduct, (2) with a minor, and (3) that constitutes abuse. The court found the Nevada statute satisfied the first element because it required intent to arouse or gratify sexual desires. It satisfied the second element as the statute protected children under 14. Finally, the court held the conduct was 'per se abusive' under Ninth Circuit precedent because the victim was under the age of 14. Since the statute met all three elements, the conviction was a categorical match to the aggravated felony of attempted sexual abuse of a minor.
The decision confirms that noncitizens convicted of lewdness with a child under 14 in Nevada are subject to removal as having committed an aggravated felony. It preserves the Ninth Circuit's two-tiered framework for defining sexual abuse of a minor, distinguishing between statutory rape cases and other sexual offenses. The petition is denied, and the removal order stands.
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