Francisco Herrera Sanchez vs. State of Minnesota

Sanchez, who was born in Mexico, arrived in the United States with his parents as

a minor in 2005. In 2012, he applied for and received Deferred Action for Childhood

Arrivals (“DACA”), a program under which noncitizens who come to the United States as

children can receive a limited deferral from removal proceedings. See Consideration of

Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigr. Servs.,

https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals

daca (last updated Dec. 22, 2016).

In 2013, when Sanchez was 19 years old, the State charged him with two counts of

third-degree criminal sexual conduct. Minn. Stat. § 609.344, subd. 1(b). The complaint

alleged that Sanchez sexually penetrated two minor children between 13 and 16 years of

age. The State also charged Sanchez with the offense of furnishing alcohol to a minor.

Minn. Stat. § 340A.702(8) (2016); see Minn. Stat. § 340A.503, subd. 2(1) (2016).

Before trial, Sanchez pleaded guilty to one of the counts of third-degree criminal

sexual conduct and to the count of furnishing alcohol to a minor. In exchange, the State

agreed to dismiss the remaining criminal-sexual-conduct count and recommend that the

district court stay the imposition of Sanchez’s sentence, place him on probation, and require

him to serve no more than 90 days of probationary jail time. As part of the plea process,

Sanchez signed a written petition that included the following statement: “My attorney has

told me and I understand that if I am not a citizen of the United States this plea of guilty

may result in deportation, exclusion from admission to the United States of America or

denial of citizenship.” (Emphasis added.)

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During the plea hearing, defense counsel questioned Sanchez. Among other things,

defense counsel confirmed that Sanchez had reviewed the plea agreement. In response to

questioning, Sanchez agreed that he was not a citizen of the United States and “that as a

result of a plea in this particular matter that, if [he was] not a citizen of the United States,

a plea of guilty could result in either deportation, exclusion from admission to the United

States, or denial of citizenship.” (Emphasis added.) The hearing also established the

factual basis of the plea when Sanchez admitted that he had engaged in sexual intercourse

with a minor named K.R., whom he knew at the time was less than 16 years of age. He

also admitted that he provided alcohol to K.R. and her friends, each of whom was younger

than 21 years old.

At the sentencing hearing, the district court formally accepted Sanchez’s plea and

stayed imposition of his sentence, see Minn. Stat. § 609.135 (2016), which included two

concurrent terms of 90 days in jail and 10 years of supervised probation. According to the

warrant of commitment and by operation of law, successful completion of the probationary

term would convert Sanchez’s felony conviction of third-degree criminal sexual conduct

into a misdemeanor. See Minn. Stat. § 609.13, subd. 1(2) (2016).

Immediately after sentencing, officers from Immigration and Customs Enforcement

(“ICE”) took Sanchez into custody. That same day, ICE issued a final administrative

removal order. The order explained that Sanchez was subject to removal from the United

States because the offense of third-degree criminal sexual conduct involving a minor,

Minn. Stat. § 609.344, subd. 1(b), constitutes an “aggravated felony” under the

Immigration and Nationality Act (“INA”). 8 U.S.C. § 1101(a)(43)(A) (2015) (defining

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“aggravated felony” to include “sexual abuse of a minor”); see also 8 U.S.C.

§ 1227(a)(2)(A)(iii) (2012) (“Any alien who is convicted of an aggravated felony at any

time after admission is deportable.”).

With the assistance of new counsel, Sanchez filed an emergency motion to withdraw

his guilty plea under Minn. R. Crim. P. 15.05 and Minn. Stat. § 590.01 (2016). The motion

broadly claimed that Sanchez’s plea was not accurate, voluntary, or intelligent. The motion

specifically relied on a recent Supreme Court decision, Padilla v. Kentucky, to argue that

plea counsel provided constitutionally inadequate representation by giving him incorrect

advice about the immigration consequences of his guilty plea. 559 U.S. 356, 369 (2010)

(requiring criminal-defense counsel to advise noncitizen clients that a plea may result in

deportation when the immigration consequences are “unclear,” or that deportation is

presumptively mandatory when the immigration consequences are “truly clear”). Sanchez

argued that Padilla required his attorney to advise him that the plea would result in his

deportation, rather than just that deportation was a possibility. Such advice was necessary,

according to Sanchez, because his removal was “an absolute certainty” under federal law.

The postconviction court granted an evidentiary hearing on Sanchez’s motion. Both

plea counsel and Sanchez testified, but their testimony was inconsistent. The court

resolved the inconsistency by crediting counsel’s testimony over Sanchez’s testimony,

which led the court to find that counsel informed Sanchez both “that he was looking at

deportation” and that he “would be deported as a result of his plea.”

After reviewing the relevant federal statutes and cases, the postconviction court

concluded that counsel’s advice was constitutionally adequate because the immigration

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consequences of Sanchez’s plea were not truly clear. The court reasoned that the definition

of “sexual abuse of a minor” is unsettled under federal law, making it unclear whether

third-degree criminal sexual conduct qualifies as an aggravated felony under the INA. For

that reason, the court held that it was constitutionally sufficient for plea counsel to have

informed Sanchez that he “was looking at deportation” or could be deported.

In the alternative, the postconviction court concluded that, even if the immigration

consequences were “clear and certain,” plea counsel provided effective assistance “based

upon his private advice” to Sanchez that he “would be deported.” This advice, the court

stated, was sufficient to inform Sanchez that deportation was a “certain result” of the plea.

Accordingly, regardless of the level of specificity of the advice that plea counsel was

required to give Sanchez, the court held that counsel had done enough. The court therefore

denied Sanchez’s motion to withdraw his guilty plea.

The court of appeals affirmed. Sanchez v. State, 868 N.W.2d 282 (Minn. App.

2015). In its view, plea counsel provided constitutionally sufficient advice by informing

Sanchez that deportation was a possibility, because the immigration consequences of his

guilty plea were not truly clear under federal law. Id. at 287-89. We granted Sanchez’s

petition for review to determine whether plea counsel’s advice satisfied the Sixth

Amendment to the United States Constitution.

II.

This case requires us to determine whether the postconviction court erred when it

refused to allow Sanchez to withdraw his guilty plea. In evaluating the postconviction

court’s actions, we review the denial of Sanchez’s motion for an abuse of discretion. Reed

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v. State, 793 N.W.2d 725, 729 (Minn. 2010). “A postconviction court abuses its discretion

when its decision is based on an erroneous view of the law or is against logic and the facts

in the record.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (citation omitted)

(internal quotation marks omitted). We review findings of fact for clear error and issues

of law de novo. McKenzie v. State, 872 N.W.2d 865, 870 (Minn. 2015).

Although Sanchez alternatively claims that his plea counsel was ineffective and that

he had a right to withdraw his guilty plea, both claims turn on a single legal proposition:

whether he was constitutionally entitled to specific, definitive advice about the immigration

consequences of pleading guilty. Sanchez argues that the vague and inconclusive advice

he received before pleading guilty was constitutionally inadequate under the Sixth

Amendment given the allegedly clear deportation consequences of the plea.1

To prevail on his Sixth Amendment claim, Sanchez must show: (1) that plea

counsel’s representation “fell below an objective standard of reasonableness,” and (2) “that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland v. Washington, 466 U.S. 687-88,

694 (1984); accord State v. Taylor, 869 N.W.2d 1, 21 (Minn. 2015); Campos v. State, 816

N.W.2d 480, 485-86 (Minn. 2012). We need not analyze both elements of the Strickland

test if one or the other is determinative. Staunton v. State, 784 N.W.2d 289, 300 (Minn.

2010).



1 Sanchez did not raise a separate claim under the Minnesota Constitution.

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Before the Supreme Court decided Padilla in 2010, the rule in Minnesota was that

a criminal-defense attorney had no duty to inform a noncitizen defendant of the

immigration consequences of a guilty plea because such consequences were “collateral” to

the decision of whether to plead guilty. Alanis v. State, 583 N.W.2d 573, 578-79 (Minn.

1998) (holding that defense counsel was not required to inform a noncitizen defendant that

his plea would lead to deportation because the immigration consequences did not “flow

definitely, immediately, and automatically from the guilty plea”), abrogation recognized

by Taylor v. State, 887 N.W.2d 821, 824 (Minn. 2016). Padilla altered the landscape by

establishing that one component of providing constitutionally effective representation is

informing a noncitizen defendant about the immigration consequences of pleading guilty,

and in particular, the risk of removal from the United States. 559 U.S. at 374; accord

Campos, 816 N.W.2d at 486-87.

Padilla also recognized, however, that “immigration law can be complex” and that,

in some circumstances, less-than-perfect advice can be constitutionally adequate. Id. at

369. In fact, the Supreme Court determined that the specificity of the constitutionally

required advice depends on whether the immigration law that applies to a particular case is

“succinct and straightforward” or “unclear or uncertain.” Id. When the immigration

consequences of a guilty plea are “truly clear,” defense counsel must affirmatively advise

a defendant that the plea will “subject [the defendant] to automatic deportation.” Id. at

360, 369. If the law is not “succinct and straightforward,” then the attorney’s obligation is

“more limited”: all counsel must do is “advise a noncitizen client that pending criminal

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charges may carry a risk of adverse immigration consequences.” Id. at 369. The disputed

question here is to which of these two categories Sanchez’s case belongs.

III.

Padilla establishes some general principles about when immigration law is

sufficiently clear to require an attorney to give definitive advice about the immigration

consequences of a guilty plea. Padilla involved a noncitizen defendant who, on the advice

of his attorney, pleaded guilty to the transportation of a large amount of marijuana. Id. at

359. Padilla’s attorney affirmatively told him that he “did not have to worry about

immigration status since he had been in the country so long.” Id. (citation omitted) (internal

quotation marks omitted). The attorney’s advice was incorrect because Padilla’s guilty

plea rendered him presumptively deportable under federal law. Id. at 368-69.

The question before the Supreme Court was whether the immigration consequences

of Padilla’s guilty plea were “truly clear” or were “unclear or uncertain.” Id. at 369.

Padilla’s case fell into the former category, according to the Court, because “the terms of

the relevant immigration statute [were] succinct, clear, and explicit in defining the removal

consequence for Padilla’s conviction.” Id. at 368. The statute unambiguously stated that

an individual “convicted of a violation . . . relating to a controlled substance . . . other than

[personal possession of a small amount of marijuana] is deportable.” Id. (quoting 8 U.S.C.

§ 1227(a)(2)(B)(i) (2012)). The ease with which Padilla’s attorney could have provided

accurate advice by simply reading the statute led the Court to conclude that Padilla had

received constitutionally ineffective advice before entering his plea. Id. at 368-69.

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Padilla establishes that criminal-defense attorneys must take some affirmative steps

before allowing a noncitizen client to accept a plea deal. First, at a minimum, an attorney

must review the relevant immigration statutes to determine whether a conviction will

subject the defendant to a risk of removal from the United States. Second, if conviction of

the charged offense clearly subjects the defendant to removal from the United States, the

attorney has a constitutional obligation to advise the defendant of this fact before he or she

enters a guilty plea. If it does not, then a general advisory warning about the possible

immigration consequences of a guilty plea is sufficient.

What Padilla fails to resolve, however, is what an attorney must do when the

applicable immigration statutes are less than truly clear, but administrative interpretations

or case law indicate that a conviction will render the defendant deportable. See Padilla,

559 U.S. at 381 (Alito, J., concurring) (noting that the Court’s decision left unresolved the

situation in which “application of the [statutory] provision to a particular case is not clear

but a cursory examination of case law or administrative decisions would provide a

definitive answer”). A strict interpretation of Padilla suggests that an attorney’s obligation

to investigate ends at the relevant immigration statutes, even if binding case law establishes

that a conviction will subject a noncitizen defendant to removal from the United States.

See Padilla, 559 U.S. at 368-69 (analyzing only the statute to determine whether the law

was “truly clear”). In contrast, Sanchez urges us to adopt an expansive interpretation of

Padilla, which would require a criminal-defense attorney to research all relevant court

decisions and administrative interpretations because of the harsh consequences that flow

from an attorney’s erroneous advice to a noncitizen defendant. We need not decide which

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view of Padilla is correct, however, because, under either view, the immigration

consequences of Sanchez’s conviction were not truly clear.2

A.

Under the strict interpretation of Padilla, an attorney representing a noncitizen

defendant must only review the relevant immigration statutes and then advise his or her

client about the immigration consequences of a plea. 559 U.S. at 368-69. These actions

are, as stated above, the least a criminal-defense attorney must do to comply with the Sixth

Amendment.

The parties identify two statutes that render a noncitizen presumptively deportable

for the commission of an “aggravated felony.” See 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.”);

8 U.S.C. § 1228(c) (2012) (“An alien convicted of an aggravated felony shall be

conclusively presumed to be deportable from the United States.”). These two provisions



2 The concurrence recognizes that plea counsel testified inconsistently on the exact nature of his pre-plea-hearing advice to Sanchez, claiming at one point that he informed Sanchez that “he would be deported as a result of the plea,” and later denying that he told Sanchez that deportation “would be a certainty.” We need not address this inconsistency, however, because the level of specificity of the advice does not affect the outcome of this case. The evidentiary-hearing transcript supports the postconviction court’s finding that plea counsel at least told Sanchez that he could be deported, which is all that is required when the immigration consequences of a guilty plea are not truly clear. See Padilla, 559 U.S. at 369. We note that Sanchez does not make the converse argument: the law was not truly clear and that the advice given was too specific, causing him to refuse a favorable plea deal based on inaccurate plea advice. An argument of this nature may have required us to evaluate the postconviction court’s finding that plea counsel told Sanchez that he would be deported. But because Sanchez does not make such an argument, we need not resolve the factual dispute about plea counsel’s testimony.

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are, like the statute in Padilla, truly clear that a noncitizen defendant will be subject to

removal from the United States if he or she commits certain crimes. In fact, 8 U.S.C.

§ 1227(a)(2)(A)(iii) describes the immigration consequences in the same terms as the

statute from Padilla, stating that a noncitizen “is deportable” if he or she has been convicted

of a qualifying offense.

Unlike the statute in Padilla, however, the statutes in this case are not clear about

which offenses qualify as aggravated felonies. In Padilla, the statute said that a noncitizen

felon is deportable after a conviction of any controlled-substance offense “other than a

single offense involving possession for one’s own use of 30 grams or less of marijuana.”

8 U.S.C. § 1227(a)(2)(B)(i). In contrast, the list of aggravated felonies is long and includes,

as relevant here, the “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).

The INA does not define the phrase, “sexual abuse of a minor.”

Sanchez makes a credible argument that the phrase “sexual abuse of a minor” should

include sexual penetration of a person between 13 and 16 years of age, the definition of

third-degree criminal sexual conduct under Minnesota law. But even a rudimentary textual

or common-sense argument is not determinative under federal immigration law, which, as

the Supreme Court stated in Padilla, is “complex” and is “a legal specialty of its own.”

559 U.S. at 369. Rather, when an immigration statute fails to define a particular offense

or “a broad classification of crimes,” id. at 368, federal courts and immigration judges

examine administrative interpretations and other federal statutes to clarify which offenses

are included. See, e.g., Lopez v. Gonzales, 549 U.S. 47, 55 (2006) (drawing from the

definition of “drug trafficking crime” within the federal Controlled Substances Act to

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determine which felonies qualify as “illicit trafficking” under the INA); Solano-Chicas v.

Gonzales, 440 F.3d 1050, 1055 (8th Cir. 2006) (noting that, in the absence of a statutory

definition of “moral turpitude,” courts look to administrative interpretations).

In Padilla, the Supreme Court recognized that the result might have been different

if the statute in that case, instead of specifically describing the type of offense, had involved

“a broad classification of crimes.” Id. at 368-69. As Justice Alito stated in his concurring

opinion in Padilla, the aggravated-felony provisions of the INA reflect broad

classifications, not specific crimes, which makes defense counsel’s task difficult. 559 U.S.

at 378-79 (Alito, J., concurring) (“Defense counsel who consults a guidebook on whether

a particular crime is an ‘aggravated felony’ will often find that the answer is not ‘easily

ascertained.’ ”); see also Nijhawan v. Holder, 557 U.S. 29, 37 (2009) (identifying several

of the crimes listed in 8 U.S.C. § 1101(a)(43), including “murder, rape, or sexual abuse of

a minor,” as “generic crimes”). Consistent with Justice Alito’s observation, federal courts

have not reached a consensus on the meaning of the phrase “sexual abuse of a minor.”

Rangel-Perez v. Lynch, 816 F.3d 591, 599-601 (10th Cir. 2016) (analyzing the split among

federal courts regarding the meaning of “sexual abuse of a minor”). We therefore conclude,

using Padilla’s reasoning, that the relevant immigration statutes were not truly clear about

whether Sanchez would be subject to removal after pleading guilty to third-degree criminal

sexual conduct.

If we were to conclude here that the aggravated-felony provisions were truly clear,

criminal-defense attorneys would be tempted to make an “educated guess” about the

coverage of federal immigration law rather than potentially subject themselves to an

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ineffective-assistance-of-counsel claim. Cf. Padilla, 559 U.S. at 382 (Alito, J., concurring)

(“Incomplete legal advice may be worse than no advice at all because it may mislead and

may dissuade the client from seeking advice from a more knowledgeable source.”).

Specific advice that is incorrect may cause defendants to mistakenly reject plea deals that

would otherwise be advantageous to them, which is at least as problematic as providing

defendants with generalized advice that induces them to mistakenly accept plea deals that

could lead to their deportation, which was the situation presented in Padilla. This is why

Padilla itself recognizes that criminal-defense attorneys who face “unclear or uncertain”

statutes must only “advise a noncitizen client that pending criminal charges may carry a

risk of adverse immigration consequences,” 559 U.S. at 369 (emphasis added), which is

what Sanchez’s plea counsel did in this case.

B.

We now turn to the expansive interpretation of Padilla, which would require

criminal-defense attorneys to review not only the relevant federal immigration statutes, but

also case law and administrative interpretations, when evaluating whether the law is truly

clear. Though Padilla does not provide direct support for this interpretation, it does discuss

“the duty of counsel to provide [a] client with available advice about an issue like

deportation.” Id. at 371 (emphasis added). Further, Padilla states that an attorney’s

obligation turns on whether “the law” is “succinct and straightforward.” Id. at 369

(emphasis added). These general statements in Padilla about “available advice” and “the

law” are arguably references to the full array of legal sources, including case law and

administrative interpretations, not just relevant statutes. See, e.g., State v. Ortiz

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Mondragon, 866 N.W.2d 717, 727-34 (Wis. 2015) (examining case law and administrative

interpretations to determine the clarity of the undefined phrase, “crime involving moral

turpitude”).

Without deciding whether the expansive interpretation of Padilla is correct, we will

review the relevant case law and administrative interpretations of “sexual abuse of a

minor,” 8 U.S.C. § 1101(a)(43)(A), to determine if they provide any more clarity than

applying the aggravated-felony statutes alone. Relying on these sources, Sanchez argues

that the case law in particular makes it truly clear that his guilty plea to third-degree

criminal sexual conduct exposed him to presumptively mandatory removal. We disagree.

Under the expansive interpretation, the lack of a statutory definition of “sexual

abuse of a minor” requires us to look to other sources, including federal-court decisions

and administrative interpretations from the Board of Immigration Appeals (“BIA”), to

determine its meaning. In 1999, the BIA, in an en banc decision, held that “sexual abuse

of a minor” includes “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.” In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995

(BIA 1999) (en banc) (quoting 18 U.S.C. § 3509(a)(8) (2012)). In adopting this definition,

the BIA relied on a federal statute addressing child victims and witnesses, rather than the

federal offense of “sexual abuse of a minor or ward.” Id. at 995-96; see 18 U.S.C. § 2243

(2012). It rejected definitions from other federal criminal statutes because it viewed those

definitions as being “too restrictive to encompass the numerous state crimes that can be

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viewed as sexual abuse and the diverse types of conduct that would fit within the term as

it is commonly used.” Rodriguez-Rodriguez, 22 I. & N. Dec. at 996.

Even though the BIA decision is binding on immigration courts operating within

Minnesota, see Afolayan v. I.N.S., 219 F.3d 784, 788 (8th Cir. 2000), the law in Sanchez’s

case was still not truly clear for at least three reasons. First, there is presently a split among

federal courts on how to determine whether a particular crime qualifies as “sexual abuse of

a minor” under 8 U.S.C. § 1101(a)(43)(A). For example, the United States Courts of

Appeals for the Second, Third, and Sixth Circuits have decided to defer to the BIA’s

interpretation in Rodriguez-Rodriguez. Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1025

(6th Cir. 2016) (deferring to the BIA’s interpretation of “sexual abuse of a minor”), cert.

granted, ___ U.S. ___ , 137 S. Ct. 368 (Oct. 28, 2016); Restrepo v. Att’y Gen., 617 F.3d

787, 796 (3d Cir. 2010) (same); Mugalli v. Ashcroft, 258 F.3d 52, 60 (2d Cir. 2001) (same).

In contrast, the United States Court of Appeals for the Ninth Circuit has rejected the BIA’s

interpretation and instead concluded that a federal criminal statute, not the statute on child

victims and witnesses, provides the applicable definition. See Estrada-Espinoza v.

Mukasey, 546 F.3d 1147, 1152-58 (9th Cir. 2008) (en banc) (rejecting the BIA’s definition

of “sexual abuse of a minor,” which the court determined was not subject to deference, in

favor of the definition in 18 U.S.C. §§ 2242-46 (2012)), overruled on other grounds by

United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). This lack

of consensus demonstrates that the law is not truly clear on which crimes constitute “sexual

abuse of a minor.”

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Second, unlike these other circuits, the United States Court of Appeals for the Eighth

Circuit has not yet addressed the interpretive question presented by this case. BIA

decisions, which federal courts treat as the equivalent of administrative interpretations, are

only binding on immigration courts in the absence of an interpretation by either the judicial

circuit in which the immigration court sits—here, Minnesota, which is in the Eighth

Circuit—or the Supreme Court. See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424-25

(1999) (holding that federal courts must defer to BIA decisions using the principles

described in Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984));

Matter of U. Singh, 25 I. & N. Dec. 670, 672 (BIA 2012) (“We apply the law of the circuit

in cases arising in that jurisdiction, but we are not bound by a decision of the court of

appeals in a different circuit.”). In the absence of an interpretation by either court, the BIA

decision is at most an administrative interpretation subject to deference by the Eighth

Circuit.

Third, even if Sanchez’s plea counsel had identified Rodriguez-Rodriguez and

applied it here, it would not necessarily have yielded a clear answer to whether third-degree

criminal sexual conduct constitutes “sexual abuse of a minor.” Counsel would have had to

apply the “categorical approach” to Sanchez’s offense, see Mowlana v. Lynch, 803 F.3d

923, 925 (8th Cir. 2015), which involves determining whether “the state statute defining

the crime of conviction categorically fits within the ‘generic’ federal definition of a

corresponding aggravated felony.” Moncrieffe v. Holder, ___ U.S. ___, ___, 133 S. Ct.

1678, 1684 (2013) (citations omitted) (internal quotation marks omitted). Under this

approach, counsel would have needed to evaluate whether the “state offense [viewed in the

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abstract] is a categorical match with a generic federal offense” by analyzing whether the

State was required to prove “facts equating to the generic federal offense.” Id. (citations

omitted) (internal quotation marks omitted).

Applying the categorical approach here is complicated by the fact that, as a number

of federal courts have observed, the BIA’s definition of “sexual abuse of a minor” in

Rodriguez-Rodriguez is incomplete. The United States Court of Appeals for the Fourth

Circuit has noted, for example, that apart from holding that the Texas crime of “indecency

with a child by exposure” qualifies as an aggravated felony, Rodriguez-Rodriguez “did not

provide direction regarding the elements of the generic federal crime of ‘sexual abuse of a

minor.’ ” Amos v. Lynch, 790 F.3d 512, 520 (4th Cir. 2015); see also Estrada-Espinoza,

546 F.3d at 1157-58 (observing that Rodriguez-Rodriguez did not provide a definition that

was particularized enough to perform an analysis under the categorical approach). The

Tenth Circuit has similarly explained that Rodriguez-Rodriguez addressed only which acts

constitute “sexual abuse of a minor,” but did not “purport to set forth all of the elements of

such an offense,” including whether the generic offense has a mens rea element. Rangel

Perez, 816 F.3d at 598. Thus, the lack of specificity in Rodriguez-Rodriguez, in addition

to the difficulty of applying the categorical approach to its definition of “sexual abuse of a

minor,” places Sanchez’s case outside the realm of a truly clear application of federal

immigration law.3



3 The concurrence misunderstands our discussion of these federal cases. We do not discuss them because they are binding precedent, but rather to show that the law, even if the BIA’s definition were binding, is not truly clear. This is a point that the concurrence

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C.

In summary, even if Padilla leaves open the possibility that a criminal-defense

attorney has a constitutional obligation to review relevant case law and administrative

interpretations before providing advice to a noncitizen defendant contemplating a guilty

plea, Padilla did not require Sanchez’s counsel to do anything more than provide a general

warning about the immigration consequences of entering the plea. If the obligation of

Sanchez’s counsel was limited to reading and interpreting the relevant immigration

statutes, then we reach the same conclusion: the statutes were not sufficiently clear to

impose an obligation on counsel to do anything more than he did. Either way, Sanchez’s

counsel satisfied his obligation under the Sixth Amendment.