In Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc), the Ninth Circuit held that a California conviction of consensual sex under the four penal statutes with a minor is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes. This holding applied to convictions for unlawful sex with a minor more than three years younger, in violation of Penal Code 261.5(c), consensual sodomy with a person under 18 years old, in violation of Penal Code 286(b)(1), consensual oral copulation with a person under 18 years old, in violation of Penal Code 288a.(b)(1), and consensual sexual penetration by a foreign object of a person 14 years old, but under 18, in violation of Penal Code 289(h).
Definition of "Sexual Abuse of a Minor. To define "sexual abuse of a minor," in the aggravated felony definition, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), the court adopted Congress' definition of sexual abuse of a minor in its definition of the federal crime under 18 U.S.C. 2243. It rejected a different definition of sexual abuse of a minor, contained in a non-criminal statute, 18 U.S.C. 3509(a)(8), which "merely addresses the rights of child victims and witnesses." (Estrada-Espinoza, at ___ n.2.) It reasoned: " Since 8 U.S.C. 1101(a)(43)(A) defines a category of crime (aggravated felony), it is more plausible that Congress intended the "aggravated felony" of "sexual abuse of a minor" to incorporate the definition of "sexual abuse of a minor" in 18 U.S.C. 2243, which is a criminal statute outlining the elements of the offense, rather than the definition of "sexual abuse" found in 18 U.S.C. 3509. (Ibid.)
Therefore, the Ninth Circuit found, under 2243, "the generic [aggravated felony] offense of "sexual abuse of a minor" requires four elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor." (Id. at ___.) Sexual act is defined at 18 U.S.C. 2246(2) to include anal or genital penetration, however slight, or oral contact with genitals or anus. If the person is under the age of 16, it also includes touching genitals, not through clothing, with intent to arouse or harass. This offense has a defense where the defendant proves that s/he reasonably believed the victim was age 16 or older. (18 U.S.C. 2243(c)(1).) Counsel can argue that if the definition of sexual abuse in the statute of conviction is broader than the definition under 2246(2), or the statute of conviction lacks a defense of lack of knowledge coextensive with that provided in 2243(c)(1), a conviction under the statute defining the offense does not qualify as a sexual abuse of a minor aggravated felony.
The court also concluded that this definition comports with "the ordinary, contemporary, and common meaning of the words" of the term. (Id. at ___, citing United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999).) It reasoned that a conviction which constitutes "sexual abuse of a minor" must necessarily contain an element of abuse. We have previously construed the word "abuse" as " physical or nonphysical misuse or maltreatment" or " use or treat[ment] so as to injure, hurt, or damage. " United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir.2006) (quoting United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir.2001); see also United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir.2004)).(Id. at ___.) It found: "A survey of relevant statutes makes clear that, under national contemporary standards, although sexual activity with a younger child is certainly abusive, sexual activity with an older adolescent is not necessarily abusive." (Id. at ___.) In support, it pointed out that the Model Penal Code and a majority of the states place the age of consent at 16 years of age, as Congress did in the criminal statute, and 43 states allow marriage at age 16 with parental consent. (Ibid.) "The fact that the vast majority of states do not forbid consensual sexual intercourse with a 17-year-old male or female indicates that such conduct is not necessarily abusive under the ordinary, contemporary, and common meaning of 'abuse.'" (Ibid. [footnote omitted].) "In sum, Congress has defined the crime of "sexual abuse of a minor," and its definition is in accord with the contemporary meaning attached to the crime by a majority of the states." (Id. at ___.)
The court concluded that Congress had no need to identify 2243 specifically, since the phrase "sexual abuse of a minor" referred to a specific identificable offense, so no cross-reference was needed. (Id. at ___.)
No Chevron Deference Due to BIA. It also rejected the government's argument that the court must give Chevron deference to the "one-judge, non-precedential, unpublished BIA order in this case." (Id. at ___.) It rejected this suggestion, since "A single-judge, unpublished, non-precedential BIA decision does not satisfy the standards established for Chevron deference by the Supreme Court in United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)." (Id. at ___ & n.5, pointing out that all four other circuits to address this question are in accord.) The court also rejected the government's suggestion that it defer to the "guide" offered by the BIA in Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999). "However, Chevron deference does not apply in these circumstances because Rodriguez-Rodriguez did not interpret a statute within the meaning of Chevron, but only provided a "guide" for later interpretation." (Id. at ___.)
According Chevron deference to Rodriguez-Rodriguez would be inappropriate because the BIA did not construe the statute and provide a uniform definition in the decision. Rather, it developed an advisory guideline for future case-by-case interpretation. The Supreme Court has instructed that "[i]nterpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference." Christensen v. Harris County, 529 U.S. 576, 587 (2000). Although Rodriguez-Rodriguez has the force of decisional law, its "guide" for ascertaining the meaning of "sexual abuse of a minor" suffers from the same imprecision that internal agency guidelines possess. As the Seventh Circuit has noted, when the BIA "hasn't done anything to particularize the meaning" of a term, "giving Chevron deference to its determination of that meaning has no practical significance." Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir.2004).
This wisdom is particularly apt when courts are engaged in a Taylor analysis of a prior conviction. The underlying theory of Taylor is that a national definition of the elements of a crime is required so as to permit uniform application of federal law in determining the federal effect of prior convictions. Taylor, 495 U.S. at 590. A Taylor analysis requires a comparison between the prior conviction and the nationally-established generic elements of the offense at issue. Without defined elements, a comparison of the state statute with the federally-defined generic offense is not possible. [Footnote omitted.] In apparent recognition of the problem of deferring to a guideline that contemplates case-by-case variance, the government suggests that the Rodriguez-Rodriguez guide was meant to embrace all the varying state statutes that could conceivably encompass the concept of "sexual abuse of a minor." However, it was just this approach that the Supreme Court rejected in Taylor. See 495 U.S. at 590 ("It seems to us to be implausible that Congress intended the meaning of "burglary" for purposes of 924(e) to depend on the definition adopted by the State of conviction."). [Footnote omitted.] The Rodriguez-Rodriguez guide is simply not the type of agency action to which Chevron deference would apply. [Footnote omitted.]
It also held that even if it applied Chevron to Rodriguez-Rodriguez, no deference is due because "When Congress has spoken directly to the issue, as it has here, our inquiry is over and Chevron deference does not apply." (Id. at ___ n.7) The court did not reach the question whether deference was owed to the BIA's interpretation of a criminal offense, such as "sexual abuse of a minor." (Id. at ___n. 10, citing Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003) [according no deference where the statute in question "is not a statute which the BIA administers or has any particular expertise in interpreting, no deference is accorded to the BIA's interpretation."].)
Categorical Analysis. Comparing the elements of the four state statutes of conviction against the federal aggravated felony definition, the court concluded that none of these four statutes invariably fell within the federal definition. All four of the unlawful sex with a minor statutes at issue here "are missing the fourth element of the generic statute: an age difference of at least four years between the defendant and the minor." (Id. at ___.) In addition, all four of the statutes are broader than the generic definition by penalizing acts with persons who are 16 and 17 years old, whereas the federal offense penalizes acts only with those under age 16. (Id. at ___.) The mens rea requirement of these four statutes was not apparent from the face of the statutes, so the court did not consider whether the mens rea was broader than the federal aggravated felony definition, which requires a mens rea level of "knowingly." (Id. at ___.)
Modified Categorical Analysis. The court concluded that it cannot apply the modified categorical analysis to three of the four statutes:
As we held in Navarro-Lopez, the modified categorical approach does not apply "[w]hen the crime of conviction is missing an element of the generic crime altogether, [because under such circumstances] we can never find that a jury was actually required to find all the elements of the generic crime."Id. at 1073 (quoting Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir.2004) (Kozinski, J., concurring)).
As we have discussed, three of the four California statutes are missing the element of the generic crime which requires a four-year age difference between the defendant and the minor. Because a jury could not have been actually required to find this element to convict Estrada-Espinoza under 286(b)(1), 288a(b)(1), or 289(h), we cannot apply the modified categorical approach to conform Estrada-Espinoza's conviction under those three statutes to the generic definition of "sexual abuse of a minor."(Id. at ___.)
With respect to the fourth statute, unlawful sex with a minor more than three years younger, the court also reached the conclusion that the modified categorical approach could not be used:
Because 261.5(c) applies to minors under the age of 18 and defendants who are only three years and one day older, it is not possible that "a jury was actually required to find all the elements of" the generic offense, Taylor, 495 U.S. at 602. As such, the modified categorical approach cannot be used to conform Estrada-Espinoza's conviction to the generic definition of "sexual abuse of a minor."(Id. at ___.)
This is for two reasons. First, the minor might be 16 or 17 years old, and thus not meet the "under 16" element of the federal definition. Second, the age difference might be as little as three years and one day, instead of being in excess of four years as required by the federal definition. This is true even though Penal Code 261.5(c) is not missing an age-difference element altogether, because the three year one day age difference element in the statute is overbroad by comparison with the four year age difference element in the sexual abuse of a minor definition under 18 U.S.C. 2243.
Implications for Other Cases. Aside from the holding itself, Estrada-Espinoza has important implications for other cases. This decision was not only en banc, but also unanimous, so the court spoke with considerable clarity and force.
First, the court made it clear that when seeking a definition for a phrase in the aggravated felony definition, and by implication, in other conviction-based grounds of deportation as well, it would first determine whether Congress has defined the term in a federal statute defining a criminal offense. If so, presumably Congress meant to use the same definition in the deportation ground as it had in defining the federal criminal offense. Only if there was no corresponding federal crime would the court move on to examine the Model Penal Code and how the offense was treated in the criminal codes of the several states.
This has implications for a number of the aggravated felony definitions that do not expressly refer to federal criminal statutes. It is clearest that the same analysis can be applied to the aggravated felonies murder, rape, illicit trafficking in a controlled substance, theft receipt of stolen property, burglary, attempt and conspiracy. INA 101(a)(43)(A), (B), (C), (G), (U), 8 U.S.C. 1101(a)(43)(A), (B), (C), (G), (U). It is less clear that it can be applied to offenses "involving" fraud and deceit (M)(i)), or offenses relating to prostitution business (K), failure to appear (Q), (T), or commercial bribery, counterfeiting, forgery, and trafficking in vehicles with altered identification numbers (R), or obstruction of justice, perjury, subornation of perjury, or bribery of a witness (S). This is because the government can argue that "involving" or "relating to" language broadens the definitions beyond the core meaning. But the same Estrada-Espinoza argument can in fact be made with respect to all aggravated felony definitions that do not expressly refer to a federal criminal statute.
In addition, it can be made with respect to other grounds of deportation, such as the domestic violence ground. While "domestic violence" is defined with reference to a federal criminal statute, the other listed offenses within that ground of deportation are not: stalking, child abuse, neglect or abandonment. INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).
Second, the unanimous, en banc court reaffirmed the rule that in determining the nature of the offense for removal purposes, it is not possible to consider any fact shown in the record of conviction that is not an essential element of the offense of conviction. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. September 19, 2007); Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring). This prohibits the use of "extra element" facts that in other jurisdictions are sometimes allowed to include facts beyond the elements of the offense of conviction in determining the nature of the offense of conviction for immigration purposes. E.g., Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007), rev'd, Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008); Matter of Babaisakov, 24 I. & N. Dec. 306 (2007). Other circuits have sometimes violated this "elements" limitation in the contexts of sexual abuse of a minor, domestic violence offenses, and the loss to the victim in fraud aggravated felonies.
Under Estrada-Espinoza, it is not only improper to go outside the elements of the offense of conviction in the categorical analysis, but it is also improper in the modified categorical analysis. In other words, a sexual battery conviction, under California Penal Code 243.4(a), committed in fact against a minor, cannot be considered a sexual abuse of a minor aggravated felony under the categorical analysis, because the age of the victim is not an element of the criminal offense, but it also cannot be considered such an aggravated felony under the modified categorical analysis, even if the record of conviction showed the victim was a minor, for the same reason: it is not an element of the offense.
Moreover, the California offense of committing a lewd act with a person under 14 years of age, under Penal Code 288(a), may not qualify as a sexual abuse of a minor aggravated felony. It is true it requires the minor to be under 14, which meets the Estrada-Espinoza requirement that the minor be under 16 years of age. This offense, however, does not have as an element any age difference between the accused and the minor. Therefore, this offense would not qualify as sexual abuse of a minor under 18 U.S.C. 2243. Therefore, it does not qualify as a sexual abuse of a minor aggravated felony under Estrada-Espinoza. Thanks to Zachary Nightingale.
Where a criminal offense by its elements requires the person to be under 16 and the defendant to be more than four years older, the conviction is categorically an aggravated felony. (See, e.g., California Penal Code 261.5(d) (person must be under 16, and the defendant at least 21 years of age.)
Previous Decisions. The federal statutory rape statute obviously does not cover all fact situations that can be described as sexual abuse of a minor. Sexual conduct with child younger than 12 years of age, or some nonconsensual sexual activity with a teenager, will be held to be sexual abuse of a minor. The opinion in Estrada-Espinoza does not address this issue, or limit the 2243 definition to cases involving consensual sex with teenagers. The court generally reviewed and affirmed a history of decisions finding that "abuse" requires harm, and that sexual activity is more likely to harm younger minors than older teenagers. It did not explicitly overturn precedent holding that a broadly defined "lewd act" with a child under the age of 14 is categorically an aggravated felony. (See, e.g., United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999).) Neither did it overturn opinions holding that statutes punishing less serious behavior, such as the California offense annoying or molesting a child are divisible. (United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004).) Immigration attorneys can argue that all prior decisions must be overruled, if they do not conform to the new Estrada-Espinoza definition of "sexual abuse of a minor," but criminal defense attorneys should continue to avoid pleading to offenses previously held to be sexual abuse of a minor until the law is clarified. Thanks to Kathy Brady for most of the analysis in this paragraph.
