This category requires that the victim be a “minor.”  This is an essential element of the ground of deportation.  If the government cannot establish by clear and convincing evidence that the victim of the offense of conviction was under 18 years of age, the ground of deportation has not been established.  The proper rule is that if the record of conviction does not contain proof of age, a conviction cannot be considered to be sexual abuse of a minor.[834]

The Seventh Circuit in Lara-Ruiz v. INS [835] concluded that an Illinois felony conviction for sexual assault was sexual abuse of a minor where the record of conviction indicated that the victim was a four-year old girl.  The Illinois statutes define “sexual assault” as an act of sexual penetration by the use of force or threat of force . . . and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.”[836]  The court declined Lara-Ruiz’s suggestion to define sexual abuse of a minor solely by reference to 18 U.S.C. § 2243(a), which prohibits sex acts with a person between the ages of 12 and 16, but rather looked to 18 U.S.C. § 2241(c), which prohibits sex acts with anyone under 12, and 18 U.S.C. § 2246(2)(A), which defines sex acts as including contact between male and female genitals.  The court found without any difficulty that “a defendant who initiates contact between his genitals and the genitals of a four-year-old child engages in sexual abuse of a minor . . . .”

 

In Lara-Ruiz, the age of the victim was not an element of the offense of sexual assault, which applied regardless of minority.  The court improperly (under immigration law) looked deep into the record of conviction to supply a missing element of the offense.  It did so by concluding that the statute was “divisible” because it might or might not include conduct that amounted to sexual abuse of a minor.  This is not the traditional “divisibility” analysis used in immigration court, that only comes into play when one statute includes different offenses or different means to commit an offense, only some of which may constitute an aggravated felony.  This case is an example of the lengths to which a court will go in distorting legal principles where a case factually involves sexual conduct with young children.

 

            Baron-Medina involved California Penal Code § 288(a), which punishes sexual acts with someone under the age of 14.  The Ninth Circuit emphasized that the youth of the victim was what made the conduct inherently abusive.[837] 

The under-14 age restriction is very different from that of the common offense of statutory rape under statutes, such as California Penal Code § 261.5, which makes criminal the act of having intercourse with anyone under the age of 18, even if the defendant is also under or near that age.  The Seventh Circuit held that consensual sex with a 15-year-old under a similar statute was not necessarily a crime of violence, using some of the same criteria as are used in determining sexual abuse.[838]  However, the Seventh Circuit also recently found that a misdemeanor conviction of “criminal sexual abuse,” where the defendant was 19 and the girl 15, was sexual abuse of a minor.[839]  For arguments as to why statutory rape under statutes such as California Penal Code § 261.5 should not be considered “sexual abuse of a minor,” see § 7.101, infra.

 

The court has the ability to consider a victim’s age in this context.  While the Ninth Circuit in Baron-Medina used a straight categorical analysis, it acknowledged that in some circumstances it can consider the charging papers and guilty plea to identify facts relating to the elements.[840]  These were not provided in the Baron-Medina case, however, and in any event by definition the victim was under the age of 14 under Calif. Penal Code § 288(a).

Compare this to the BIA’s decision in Matter of Rodriguez-Rodriguez.  The Board held, without commenting on age, that conviction under a Texas felony for indecent exposure to a person under the age of 17 was an aggravated felony.  The Board did note two factors that suggest that this particular offense was egregious:  the defendant received the full ten-year sentence, and there was a defense for someone whose age was within three years of the victim or did not use duress.  In that way, Rodriguez-Rodriguez might be distinguished from one of the less serious forms of statutory rape.

 

Of course, in Lara-Ruiz, the Seventh Circuit relied heavily on the fact that the act of sexual penetration was against a four-year-old.  Even though the victim’s age was not an element of the offense of sexual assault and the indictment for the count of conviction did not refer to the victim’s age, the court upheld the sexual abuse of a minor finding.  It did so by improperly first finding that the statute was divisible (because it could include conduct against a minor), and, as a result, the court could look to other record documents provided that doing so would not require an evidentiary hearing into contested issues of fact.[841]  Because the noncitizen had not disputed the victim’s age and, had in fact premised his arguments on it, no evidentiary hearing would have been required.  Thus, the Court found that the BIA had properly looked beyond the indictment to establish minority.[842] 

 

While it appears that the Seventh Circuit improperly looked to the record of conviction for the victim’s age, the Lara-Ruiz case makes clear that defense counsel should try to avoid any reference to the age of the victim in the record of conviction, even with respect to offenses that do not contain age as an element.

 

[834] See Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Oregon convictions of first degree burglary and attempted first degree kidnapping, in violation of Or. Rev. Stat. § § 163.225, 163.235, found not to be “crimes of domestic violence,” under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for deportation purposes, since there was no evidence in the record of conviction that victim was protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent).

[835] Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001).

[836] Ill.Rev.Stat. 1991, ch. 38, § § 12-13(a)(1), (2).

[837] “The use of young children as objects of sexual gratification constitutes an abuse.  We reject the notion that the defendant in the Imler case did not abuse his young victims, or that Congress intended the aggravated felony law to excuse an individual who preys upon a child too young to understand the nature of his advances.  [citation]  The use of young children as objects of sexual gratification is corrupt, improper and contrary to good order. [citation] It constitutes maltreatment, no matter what its form. [citation].”  United States v. Baron-Medina 187 F.3d 1144, 1147 (9th Cir. 1999).

[838] Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) (consensual sexual intercourse with a 15 year old is not a crime of violence).

[839] Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001).

[840] Baron-Medina, supra.  These facts were considered in Xiong v INS, supra.

[841] Ibid. (citing Xiong v INS, supra, which considered other portions of the record of conviction to determine the age of the victim).

[842] As noted, however, the court’s finding that the statute was divisible was in error because the statute does not establish different offenses or separate means by which the offense may be committed.  The court therefore should not have looked to the record of conviction to supply age as an additional element of the offense.  Thus, not even an offense without age as an element is necessarily safe from a sexual abuse of a minor finding.

BIA

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " OFFENSE MUST INCLUDE MEANINGFUL AGE DIFFERENTIAL AS AN ELEMENT
Matter of Esquivel-Quintana , 26 I. & N. Dec. 469 (BIA 2015) (California conviction of unlawful intercourse with a minor, in violation of Penal Code 261.5(c), which requires that the minor victim be "more than three years younger" than the perpetrator, categorically constitutes aggravated felony "sexual abuse of a minor" under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A); However, we clarify that in the context of State statutory rape offenses, a statute that includes 16- or 17-year-olds must also contain a meaningful age differential to constitute sexual abuse of a minor.); clarifying Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), and Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006). www.justice.gov/eoir/vll/intdec/vol26/3824.pdf NOTE: The BIA refused to apply Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. 2008), to this case, since the case arose from within the Sixth Circuit.

DOMESTIC VIOLENCE - CHILD ABUSE - FOURTH DEGREE ASSAULT - NOT CATEGORICALLY A CRIME OF CHILD ABUSE
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (Washington conviction of fourth degree assault, in violation of Wash. Rev. Code 9A.36.041, did not categorically constitute a "crime of child abuse," under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), because statutory elements contain no element of age of the victim, and "administrative record does not establish that the respondent was convicted of an offense that had the juvenile status of the victim as an element." (emphasis in original)).

Second Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL MISCONDUCT
Ganzhi v. Holder, 624 F.3d 23, 2010 WL 3465604 (2d Cir. Sept. 7, 2010) (per curiam) (New York conviction of sexual misconduct, in violation of New York Penal Law 130.20(1)[engages in sexual intercourse with another person without such person's consent], does not qualify as a sexual abuse of a minor aggravated felony under the categorical analysis, since the statute has no element involving the age of the victim).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL MISCONDUCT
Ganzhi v. Holder, 624 F.3d 23 (2d Cir. Sept. 7, 2010) (per curiam) (New York conviction of sexual misconduct, in violation of New York Penal Law 130.20(1), is a divisible statute, since it provides in different subsections different definitions of lack of consent, and includes offenses involving minors one day shy of 17 years of age).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " DEFINITION
Ganzhi v. Holder, 624 F.3d 23 (2d Cir. Sept. 7, 2010) (per curiam) (the aggravated felony of sexual abuse of a minor requires only that a person: (1) engage in any one of a number of proscribed sexual acts, specifically including sexual intercourse; (2) with a person under the age of eighteen, see 18 U.S.C. 3509(a)).

Fifth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Munoz-Ortenza, __ F.3d __, 2009 WL 693146 (5th Cir. Mar. 18, 2009) (California conviction for oral copulation of a minor, in violation of Penal Code 288a(b)(1), was not necessarily "sexual abuse of a minor," and thus not a "crime of violence" for illegal re-entry sentencing purposes, since the offense may be committed against a person under 18, while the minor must be under 16 to qualify as "sexual abuse of a minor."), following United States v. Lopez-DeLeon, 513 F.3d 472 (5th Cir.), cert. denied, __ U.S. __, 128 S.Ct. 2916, 171 L.Ed.2d 851 (2008) (California conviction for unlawful sex with a minor, in violation of Penal Code 261.5(c), is not necessarily "sexual abuse of a minor" as the statute punishes sex with a person 18 years and under).

Ninth Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL BATTERY
Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. Sept. 4, 2012) (California conviction of sexual battery, in violation of Penal Code 243.4(a), did not categorically constitute a sexual abuse of a minor aggravated felony, because the elements do not require that the victim be a minor, and the evidence admissible under the modified categorical analysis did not establish that the victim was a minor).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " DEFINITION OF MINOR
United States v. Doss, 630 F.3d 1181 (9th Cir. Mar. 15, 2011) (in federal criminal cases, the prior sex offense must involve a victim age 16 or under in order to enhance a sentence to a life sentence 18 U.S.C. 3559(e)).

Other

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " STATUTORY RAPE
United States v. Vidal-Mendoza, ___ F.Supp.3d ___, 2011 WL 1560987 (D.Or. Apr. 25, 2011) (Oregon conviction of rape in the third degree, under Or. Rev. Statute 163.355 [sexual intercourse with another person under 16 years of age.], held not categorically an aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because the Oregon statute allows for a conviction if the person has sexual intercourse with another person under 16 years of age, O.R.S. 163.355(1), which is broader than the elements of sexual abuse of a minor as defined in federal criminal law at 18 U.S.C. 2243: Because O.R.S. 163.355 does not require a four year age difference between the defendant and the minor, it is broader than the generic offense of sexual abuse of a minor and, therefore, is not categorically an aggravated felony under [8 U.S.C.] 1101(a)(43)(A).); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir. 2008).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " DEFINITION OF MINOR
Immigration counsel could argue that 18 U.S.C. 3559(e) should be used to define minor in the sexual abuse of a minor context, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and child in the domestic violence deportation ground, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i). See United States v. Doss, ___ F.3d ___, 2011 WL 871391 (9th Cir. Mar. 15, 2011) (in federal criminal cases, the prior sex offense must involve a victim age 16 or under in order to enhance a sentence to a life sentence 18 U.S.C. 3559(e)). The argument is nonfrivolous, but unlikely to win. In the immigration context, the BIA has specifically held that a minor is a person under the age of 18, for purposes of the aggravated felony 'sexual abuse of a minor' and a deportable 'crime of child abuse.' The Ninth Circuit has upheld this rule, except in Estrada-Espinoza, when it defined sexual abuse of a minor in the context of consensual sex with a minor as only applying to a minor under the age of 16. In non-consensual contexts, however, for example in finding that a conviction of annoying or molesting a minor, in violation of California Penal Code 647.9, is divisible as a sexual abuse of a minor aggravated felony, the Ninth Circuit has accepted that the age of the victim may go up through 17. Thanks to Katherine Brady.