(D)  Limitation to the Record of Conviction.  This type of case is so emotionally difficult that courts have a hard time following the law.[610]  The general rule is that in assessing whether a conviction falls within a ground of deportation, the court is limited to the record of conviction.[611]  Counsel should make every effort to force them to do so in this context.  Some circuits, however, seem to be taking the position that they can go outside the record of conviction to establish the age of the victim to show a conviction falls within this category.  It is safer to make sure the conviction cannot be considered sexual abuse of a minor even if the court improperly consults, or goes outside of, the record of conviction.

[610] See § 4.6, supra.

[611] 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 Ore. 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).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
United States v. Ayala, 542 F.3d 494 (5th Cir. Sept. 8, 2008) (Texas conviction for indecency with a child in violation of Texas Penal Code 21.11(a)(1), is sexual abuse of a minor, even though the statute punishes sex with a person that is one day shy of 18 years old), following United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000).

Second Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " FIRST DEGREE SEXUAL ABUSE
Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (New York conviction of first-degree sexual abuse under N.Y. Penal Law 130.65, which contains four different offenses, each with different elements, is a divisible statute, permitting consideration of the record of conviction under the modified categorical analysis to determine which offense was the offense of conviction).

Third Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR -AGGRAVATED CRIMINAL SEXUAL CONTACT
Restrepo v. Attorney General, 617 F.3d 787 (3d Cir. Aug. 16, 2010) (New Jersey violation of New Jersey Statute 2C:14-2(2), aggravated criminal sexual contact, with a victim between at least thirteen years of age, but less than sixteen years of age, is categorically an aggravated felony sexual abuse of a minor offense for immigration purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFERENCE TO BIA DEFINITION
Restrepo v. Attorney General, 617 F.3d 787, 796 (3d Cir. Aug. 16, 2010) ("we are unable to discern the clear and unmistakable intent of Congress with respect to the definition of "sexual abuse of a minor" [under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A). Thus, we must look to the BIA's interpretation of the phrase and determine whether that interpretation is reasonable.").

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION
Restrepo v. Attorney General, 617 F.3d 787, 796-797 (3d Cir. Aug. 16, 2010) ("We conclude that the BIA's definition of sexual abuse of a minor is a reasonable one and that it is appropriate to exercise Chevron deference. Accordingly, we will define sexual abuse of a minor by reference to 3509(a). . . . 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."), following Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STANDARD OF REVIEW - CATEGORICAL ANALYSIS
Restrepo v. Attorney General, 617 F.3d 787 (3d Cir. Aug. 16, 2010) (aggravated felony sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), is a generic definition which must be analyzed under the categorical approach, which ignores the facts of the case and concentrates on the elements of the offense of conviction); following Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 2298, 2300 (courts employ the "categorical approach" of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether an alien's conviction constitutes a sexual abuse of a minor aggravated felony under the INA).

Fifth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL ASSAULT OF A CHILD
United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir. Jul. 13, 2009) (Texas conviction for sexual assault of a child younger than 17 years of age, in violation of Penal Code 22.011(a)(2)(A), (c)(1), constituted a conviction for sexual abuse of a minor, and thus a crime of violence for illegal re-entry sentencing purposes); accord, United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006) (Tex. Penal Code 22.011(a)(2) falls within the U.S.S.G. 2L1.2(b)(1)(A)(ii) enhancement as the enumerated offense of sexual abuse of a minor); United States v. Ayala, 542 F.3d 494 (5th Cir. 2008) (Texas conviction of indecency with a "child" in which a "child" is under 17 years old constitutes sexual abuse of a minor under U.S.S.G 2L1.2 cmt. n.1(B)(iii)); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000); United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION OF MINOR
United States v. Munoz-Ortenza, 563 F.3d 112 (5th Cir. Mar. 18, 2009) ("We need not decide here whether "minor" as used in the enumerated category of "sexual abuse of a minor" means those under sixteen versus those under seventeen. We can say that "minor" in this context does not include all persons under eighteennamely, seventeen-year-olds. We are mindful that in many contexts a minor is defined as a person under eighteen. See Blacks Law Dictionary 997 (6th ed. 1990) ("In most states, a person is no longer a minor after reaching the age of 18 . . . ."). However, in the unique crime-of-violence context, we must follow the Taylor common-sense approach.").

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - INDECENCY
United States v. Balderas-Rubio, 499 F.3d 470 (5th Cir. Sept. 5, 2007) (Oklahoma conviction for indecency or lewd acts with a child under the age of sixteen, in violation of Okla. Stat. tit. 21, 1123, making it unlawful to "to intentionally look upon, touch, maul, or feel the body or private parts of any child under sixteen (16) years of age in any lewd or lascivious manner ...." constitutes "sexual abuse of a minor" for illegal re-entry sentencing purposes.)

Seventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " DOMESTIC BATTERY
Castellanos v. Holder, ___ F.3d ___, ___, 2011 WL 3067948 (7th Cir. Jul. 20, 2011) (Illinois conviction for second offense domestic battery (intentionally causing bodily harm to family member), in violation of 720 ILL. COMP. STAT. 5/12"3.2(a)(1), constitutes "crime of violence" under 18 U.S.C. 16(a) and thus is an aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because the statute unambiguously requires proving physical force: to sustain [a] conviction for domestic battery, the [S]tate had to prove that [the defendant] caused bodily harm, which means that it had as an element the use of physical force against the person of another. Upton, 512 F.3d at 45 (internal quotation marks and alterations omitted); accord LaGuerre, 526 F.3d at 1039.).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
Gaiskov v. Holder, 567 F.3d 832 (7th Cir. May 28, 2009) (Indiana conviction of sexual misconduct with a minor, in violation of Ind.Code 35-42-4-9(b) ("performs or submits to any fondling or touching, of either the child or the older person, with the intent to arouse or satisfy the sexual desires of either the child or the older person" committed by a person 18 or older with a person 14-15 years old), constituted aggravated felony "sexual abuse of a minor," because the elements of the offense fall within the BIA's definition of "sexual abuse" ("[T]he 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[.]"), by reference to 18 U.S.C. 3509(a), a statute concerning the rights of child victims and child witnesses in the context of federal proceedings), following Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 993-94 (BIA 1999).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL CONDUCT WITH A MINOR
United States v. Gomez, __ F.3d __, 2014 WL 1623725 (9th Cir. Apr. 24, 2014) (Arizona conviction for violation of ARS 13-405, sexual conduct with a minor under the age of fifteen, is not necessarily a crime of violence, as sexual abuse of a minor, for illegal re-entry sentencing purposes, under current law), applying tests of Estrada"Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

AGGRAVATED FELONY "SEXUAL ABUSE OF A MINOR
United States v. Tafoya-Montelongo, 659 F.3d 738 (9th Cir. Sept. 14, 2011) (Utah attempted sexual abuse of a child, under Utah Code 76"5"404.1, punishing anyone who touches the anus, buttocks, or genitalia of any child [under 14], the breast of a female child, or otherwise takes indecent liberties with a child, or causes a child to take indecent liberties with the actor or another with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, constitutes sexual abuse of a minor, for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Castro, 599 F.3d 1050, 1054 n.1 (9th Cir. Mar. 26, 2010) (defining the term "sexual abuse of a minor" in the immigration and the illegal re-entry sentencing context involves the same analysis).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SODOMY IN THE FIRST DEGREE
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (Oregon conviction for sodomy in the first degree, in violation of Or.Rev.Stat. 163.405 (1988), constituted aggravated felony sexual abuse of a minor for immigration purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. Dec. 14, 2009) (California conviction of "unlawful sexual intercourse with a minor" under Penal Code 261.5(d) is not categorically a sexual abuse of a minor as defined in INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for immigration purposes: "Because section 261.5(d) does not include the relevant scienter requirement of 2243, and criminalizes sexual conduct that is not necessarily abusive, we conclude that section 261.5(d) does not qualify as the generic federal crime of "sexual abuse of a minor," and therefore is not categorically an aggravated felony under 1101(a)(43)(A).").

NOTE: The Ninth Circuit applied two separate definitions of "sexual abuse of a minor." Where the offense involves what is known as "statutory rape," the relevant test is whether the statute of conviction falls within 18 U.S.C. 2243 ("Whoever ... knowingly engages in a sexual act with another person who-(1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both."). The mens rea of "knowingly" in 2243(a) requires only that the act was "knowingly" committed, not that the defendant knew the age of the victim or the age difference.

In non-statutory rape case, the definition of "sexual abuse of a minor" means: "(1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse. Id. at 513 (internal quotation omitted). A criminal statute includes the element of "abuse" if it expressly prohibits conduct that causes "physical or psychological harm in light of the age of the victim in question." Id. at 513. Sexual conduct involving younger children is per se abusive. Id." Citing United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009).

The court looked to both definitions, and found that California Penal Code 261.5(d) did not meet either. The California offense did not meet the first definition since it could be committed without "knowledge" (i.e. through intoxication of the defendant), and did not meet the second definition since the state statute does not require "abuse," as an element, and sex with a minor 1 day short of 16 is not per se abusive.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Medina-Villa, 570 F.3d 213 (9th Cir. June 23, 2009) (California conviction of lewd act with a minor under 14, in violation of Penal Code 288(a), constituted "sexual abuse of a minor," qualifying as a "crime of violence" that warranted a sixteen-level increase under U.S.S.G. 2L1.2 in the sentence for illegal reentry after deportation), following United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - ELEMENTS
United States v. Medina-Villa, 570 F.3d 213 (9th Cir. June 23, 2009) (sexual abuse of a minor has the same meaning in the immigration and sentencing contexts - except as it concerns statutory rape in the immigration context; as generically defined, the term requires three elements - sexual conduct, against a minor, that constitutes abuse [physical or psychological harm]), distinguishing Estrada- Espinosa,546 F.3d 1147 (9th Cir. 2008), which applied 18 U.S.C. 2243 to define "sexual abuse of a minor" in the context of a statutory rape conviction.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - UNLAWFUL SEX WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of unlawful sex with a minor more than three years younger, in violation of Penal Code 261.5(c), 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).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL SODOMY WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual sodomy with a person under 18 years old, in violation of Penal Code 286(b)(1), 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).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL ORAL COPULATION WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual oral copulation with a person under 18 years old, in violation of Penal Code 288a(b)(1), 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).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL SEXUAL PENETRATION BY A FOREIGN OBJECT OF A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual sexual penetration by a foreign object of a person 14 years old, but under 18, in violation of Penal Code 289(h), 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).

ARTICLE - NINTH CIRCUIT DEFINES SEXUAL ABUSE OF A MINOR ACCORDING TO FEDERAL CRIMINAL STATUTE TO REQUIRE MINOR UNDER 16 YEARS OLD WITH AGE DIFFERENCE OF FOUR YEARS
  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.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL ASSAULT
United States v. Sinerius, __ F.3d __, 2007 WL 2728760 (9th Cir. Sept. 20, 2007) (Montana conviction for sexual assault (knowingly subjecting "another person to any sexual contact without consent), in violation of Montana Code 45-5-502 is categorically a prior offense "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward," for purposes of 18 U.S.C. 2252A(b) sentence enhancement for conviction of a child pornography offense; even the least egregious conduct, consensual sexual contact between a 16-year-old offender and a 13-year-old victim, where children under 14 years old are not legally capable on consent, falls within the definition of "sexual abuse.")

Tenth Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR" INDECENT PROPOSAL TO A CHILD
United States v. Martinez-Zamaripa, 680 F.3d 1221 (10th Cir. Jun. 1, 2012) (Oklahoma conviction of indecent proposal to a child, in violation of Okla. Stat. Ann. tit. 21, 1123(A)(1) (1995) (any oral ... lewd or indecent proposal to any child under sixteen (16) years of age for the child to have unlawful sexual relations ... with any person.), constituted enumerated offense sexual abuse of a minor, under U.S.S.G. 2L1.2 cmt. N. 1(B)(iii), for illegal re-entry sentencing purposes).