The sexual abuse of a minor category clearly 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 noncitizen was specifically convicted of committing sexual abuse against a person under 18 years of age,[655] 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.  See Chapter 4, supra.

 

            In Singh v. Ashcroft,[656] the Third Circuit found that a conviction for unlawful sexual conduct in the third degree, punishing sexual contact where the actor knows that the contact is offensive to or without consent of the victim, could never constitute an aggravated felony sexual abuse of a minor offense because the statute did not require as an element that the victim be a minor, even if the victim was, in fact, under 18 years old.  Looking to the phrase “sexual abuse of a minor” in INA § 101(a)(43)(A),[657] the court found that to fall within this category, the statute of conviction must require proof beyond a reasonable doubt of the minority of the victim.  The court compared this to other aggravated felony categories, such as INA § 101(a)(43)(M)(i)[658] (fraud, in which loss to the victim exceeded $10,000), and stated that “nothing in the phrase ‘sexual abuse of a minor’ signals that a factual investigation [into the record of conviction] is called for.  Congress could have enacted, for example, the language ‘any sex offense, where the victim of such offense was a minor[.]’”[659]

 

            In a highly analogous case, the Ninth Circuit held in Tokatly v. Ashcroft, [660] that a charge of deportability under INA § 237(a)(2)(E)(i),[661] for conviction of a “crime of domestic violence,” must be based upon a statute that requires proof a domestic relationship to the victim as an element of the offense.  The court refused to accept the government’s argument that the categorical approach, limited to the elements of conviction, applied only the “crime of violence” portion of the deportation ground, and that the domestic relationship could be found in the record of conviction independently of the elements required to convict.

 

On the other hand, the Seventh Circuit improperly concluded, in Lara-Ruiz v. INS, [662] 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, even though the statute of conviction did not require, under any set of elements, that the victim be a minor.  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.”[663]  The court improperly[664] found that the statute was “divisible” because it might or might not include conduct that amounted to sexual abuse of a minor, and then examined the record of conviction to determine that the victim had, in fact, been under 18 years old.  In Gattem v. Gonzalez,[665] the court applied the same improper analysis to determine that an offense of solicitation of a sexual act was, in fact, sexual abuse of a minor.  In neither case did the court attempt to explain why it was allowed to look past the elements necessary to convict, and examine the record of conviction to determine the fact of the actual age of the victim.

[655] Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006) (victim of sexual abuse who is under the age of 18 is a “minor” for purposes of determining whether a noncitizen has been convicted of sexual abuse of a minor within the meaning of INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).  The victim does not, in fact, need to be under 18.  See Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. Dec. 28, 2005) (Illinois conviction of indecent solicitation of a child, in violation of 720 ILCS 5/11-6(a)(2000), constituted sexual abuse of a minor aggravated felony, under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for deportation purposes even though the person solicited was an adult police officer rather than a minor).

[656] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004).

[657] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

[658] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[659] Singh v. Ashcroft, 383 F.3d at 146 (3d Cir. Sept. 17, 2004).

[660] 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 a protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent).

[661] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

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

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

[664] See § 4.13, supra.

[665] Gattem v. Gonzalez, 412 F.3d 758, 768 (7th Cir. June 20, 2005).

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.

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)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL ABUSE OF A MINOR
Costa v. Holder, 611 F.3d 110 (2d Cir. Jul. 2, 2010) (Connecticut conviction for violation of C.G.S. 53a-71, second-degree sexual assault, is an aggravated felony crime of violence for immigration purposes, since when the victim cannot consent-the statute inherently involves a substantial risk that physical force may be used in the course of committing the offense.), following Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003). Note: The court rejected the argument that the statute was divisible because some portions of the statute could be committed against a minor just shy of 18 years old.

Third Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " AGGRAVATED SEXUAL CONDUCT WITH MINOR
Restrepo v. Attorney General, 617 F.3d 787, 2010 WL 3211138 (3d Cir. Aug. 16, 2010) (New Jersey conviction of aggravated criminal sexual contact with a victim of at least thirteen years of age, but less than sixteen years of age, in violation of N.J. Stat. Ann. 2C:14-3(a), constitutes aggravated felony sexual abuse of a minor under INA 101 (a)(43)(A), 8 U.S.C 1101(a)(43)(A), for removal purposes), following Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995-96 (BIA 1999).

Fifth Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR
United States v. Rodriguez, 711 F.3d 541 (5th Cir. Mar. 15, 2013) (Texas conviction for sexual assault of a child, under Texas Penal Code 22.011(a)(2), constitutes sexual abuse of a minor for purposes of illegal re-entry sentencing; minor in this instance is defined as commonly defined, e.g., a person under 18 years old). Note: The noncitizen in this case did not challenge whether the statute was sexual or necessarily abusive.

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).

Seventh Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF INDECENT SEX ACT
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 ["offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification]," constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because it involved a minor, thus rendering Sharashidze deportable under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), where the complaint stated that he "offered Evelyn M. Aguila[,] a person not his spouse[,] mother of [child's name,] a child under 13 yrs of age, $20.00 USC, to allow him to have sexual contact with same for the purpose of his sexual gratification or arousal."), following Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir.2005) (solicitation of sexual contact with a minor in violation of 720 ILCS 5/11-14.1 constitutes a sexual abuse of a minor aggravated felony, since complaint to which plea was entered identifies the complainant as a minor and states his age). http://caselaw.lp.findlaw.com/data2/circs/7th/062661p.pdf

DIVISIBLE STATUTE ANALYSIS - DIVISIBLE STATUTE - STATUTE CONSIDERED DIVISIBLE, WITH RESPECT TO AGE OF VICTIM, EVEN THOUGH STATUTE DID NOT REFER IN ANY WAY TO AGE OF VICTIM
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 ["offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification]," constituted a divisible statute with respect to the age of the victim for purposes of considering whether conviction constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because the offense in fact involved a minor, thus rendering Sharashidze deportable under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)).

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)).

Tenth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - ATTEMPTED SEXUAL ASSAULT ON A CHILD
United States v. De La Cruz-Garcia, 590 F.3d 1157 (10th Cir. Jan. 5, 2010) (Colorado conviction of attempted sexual assault on a child, in violation of Colo.Rev.Stat. 18-3-405(1) ("Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim."), categorically constituted "sexual abuse of a minor," and therefore qualified as a "crime of violence" under U.S.S.G. 2L1.2(b)(1), that warranted a sixteen-level sentencing enhancement).

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.