There is currently a conflict in the Ninth Circuit between Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (California misdemeanor conviction of unlawful sexual intercourse with a minor, in violation of Penal Code 261.5(c), constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for removal purposes, since the full range of conduct defined by the criminal statute fell within the common meaning of "sexual abuse of a minor," as encompassing any offense that involves "the employment, use, persuasion, inducement, enticement or coercion of a child to engage in . . . sexually explicit conduct . . . ."), quoting Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995 (BIA 1999), following United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), and United States v. Lopez-Solis, 447 F.3d 1201 (9th Cir. 2006) (Tennessee conviction of statutory rape, in violation of Tennessee code 39-13-506, is not categorically "sexual abuse of a minor," and therefore not a "crime of violence" for purposes of illegal re-entry sentence enhancement; slight sexual penetration of a minor just under 18 by a 22 year old is not necessarily "abuse").



In Lopez-Solis, the court explained the seeming contradiction by saying that in Afridi, the Circuit court merely held that the BIA's intepretation (given them Chevron deference), was not contrary to the plain and sensible meaning of the INA. Lopez was a sentencing case, but this should not matter.



First, Lopez defined SAM by the common meaning, which they presumably do in the immigration context as well, so the language used is identical in both contexts and should have the same meaning in the immigration context.



Second, the IJ is supposed to follow the BIA caselaw unless there is Circuit law that (expressly) contradicts it, but once that happens, the Circuit law controls. Counsel can argue before the IJ that s/he should follow Lopez because that case is the most recent, detailed word on the statutory rape issue. Afridi should be taken as only lasting until Lopez was decided - the Ninth Circuit was merely deferring to the BIA (as required) until it developed its own, overriding, analysis. Because that overriding analysis now exists, the IJ and the BIA must now follow the Ninth Circuit.