On appeal, the BIA ultimately agreed.To get there, the Board began by reiterating two existing requirements: that sexual abuse of a minor involves “sexual abuse” as articulated in Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), against a person who is under 18 years old as required by Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006). Matter of Esquivel-Quintana, 26 I&N Dec. at 471.

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.’”Restrepo, No. 07-4741, slip op. at 19 (discussing Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995-96 (BIA 1999)). Following the Second Circuit’s conclusion that this interpretation by the BIA was reasonable, the Third Circuit panel in Restrepo also determined that the BIA’s interpretation was reasonable, thus, pursuant to Chevron, the Third Circuit held that it was appropriate to defer to the BIA. Restrepo, No. 07-4741, slip op. at 21.