(B)  As a Crime of Violence.[682]  The BIA and some federal courts have found that statutory rape is a crime of violence, at least when the victim was a relatively young person, age 16 or younger.  Statutory rape, as generally defined, does not have force as an element, and so does not constitute a “crime of violence” under 18 U.S.C. § 16(a).  This issue most often turns on whether the offense is substantially likely to involve force in its commission under 18 U.S.C. § 16(b).

 

(1)  Young Victims.  A number of courts have found sex with a minor to be a “crime of violence” under 18 U.S.C. § 16(b), where the victim is under 15 or 16 years old.  In those cases, the courts agree that, given the likely relative weakness and emotional immaturity of the younger child in relation to that of the victim, the offense involves a substantial risk that force will be used in the commission of the offense.[683]  Where the offense involves incest, the offense is usually found to be a crime of violence as well.[684]

(2)  Older Victims and Consent.  The Seventh and Ninth[685] Circuits, at least,[686] have distinguished between statutory rape involving a young child, and statutory rape where the victim may be just one day shy of 18 years old.

 

In Xiong v. INS, [687] the Seventh Circuit, following an earlier decision in the sentencing context,[688] found that statutory rape does not necessarily involve a substantial risk that force will be used in commission of the offense where the statute may be violated by consensual sex between a 15-year-old and an 18-year-old, and a condom is used to prevent pregnancy or sexually transmitted disease.

 

The Ninth Circuit originally decided, in Valencia v. Gonzalez[689] (Valencia I) that a violation of California Penal Code § 261.5(c), punishing sex with a minor under 18 and three years younger than the actor, was a crime of violence as defined under 18 U.S.C. § 16(b), based upon earlier decisions in the sentencing context finding that statutory rape involved a substantial risk of physical injury.[690]  However, following the decision of the United States Supreme Court in Leocal v. Ashcroft,[691] the court drew a distinction between the potential risk of injury that may result from the offense (in the form of pregnancy or sexually transmitted disease), and the potential risk that force may be use in the commission of the offense itself.  The court found, in Valencia II, that, “[w]hen the victim actually consents to the sexual contact, it cannot reasonably be said that there is a substantial risk that physical force ‘might be required in committing the crime.’”[692]

 

The Ninth Circuit subsequently withdrew Valencia II, and issued a new opinion that added additional analysis to support the holding that statutory rape is not necessarily a crime of violence.  The key distinction the court drew was between the ability of an older teen to give actual versus legal consent:

 

[W]e find the reasoning of the Second and Fifth Circuits somewhat mechanical in equating a victim’s legal incapacity to consent with an actual unwillingness to be touched, and deriving therefrom a substantial risk that physical force may be used in committing the offense. In Chery, for example, the statute of conviction criminalized sexual intercourse with a victim under the age of sixteen by a perpetrator two years older, sexual intercourse with a victim who is mentally incapacitated or physically helpless, or a guardian’s sexual intercourse with his or her minor ward. See [Chery v. Ashcroft, 347 F.3d 404, 407 (2d Cir. 2003)]. Thus, the conduct criminalized by the statute included sexual intercourse with a willing minor.  The court found that the statute categorically involved a risk that force may be used to accomplish the sexual intercourse with the victim. Id. at 408 (citing [Sutherland v. Reno, 228 F.3d 171, 176 (2d Cir. 2000)]). Even though the victim might voluntarily engage in the sexual intercourse, the court found a substantial risk of force because the victim cannot consent. Chery, 347 F.3d at 408-09.

 

Underlying this reasoning is the assumption that a minor’s legal incapacity implies that the proscribed sexual intercourse is non-consensual. See, e.g., Chery, 347 F.3d at 409 (“[I]t is obvious that such crimes ... are generally perpetrated by an adult upon a victim who is not only smaller, weaker and less experienced, but is also generally susceptible of acceding to the coercive power of adult authority figures.”) (quoting [United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996)]) (alteration in original). But even then, the equation of legal and factual non-consent mixes considerations of physical disparity (“smaller” or “weaker”) with considerations of mental or emotional disparities (“less experienced,” “authority figures”). While this assumption may be valid where the minor is a younger child, see, e.g., [United States v. Reyes-Castro, 13 F.3d 377,  379 (10th Cir. 1993)], it does not hold true where the victim is an older adolescent, who is able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. See United States v. Houston, 364 F.3d 243, 247 (5th Cir. 2004) (distinguishing factual and legal consent for purposes of determining whether statutory rape is a crime of violence under U.S.S.G. §   4B1.2); United States v. Dickson, 346 F.3d 44, 51-52 (2d Cir. 2003) (holding that unlawful imprisonment of a minor or incompetent adult is not a crime of violence under §   16(b), because the crime can be accomplished with the victim’s acquiescence). Therefore, while we agree that the “non-consent of the victim” is the “touchstone” for §   16(b) analysis, it is the victim’s actual non-consent that counts.  Valencia III, at 1050-1051.

 

Where this issue has not yet been decided in the immigration context, counsel can argue for the Ninth Circuit’s distinction between actual and legal consent.  Even in the circuits that have addressed this issue already, counsel can argue in the immigration context that Leocal requires that the issue be revisited.

 

(3)  Disparate Ages.  Many courts, often in dictum, point to a great disparity between the ages of the victim and the actor as an “aggravating factor” that increases the likelihood that physical force will be used in the commission of the offense, or that physical injury will result.[693]  In Valencia III, on the other hand, the Ninth Circuit noted that,

 

an increase in the age of the perpetrator, holding the victim’s age constant, does not ineluctably increase the risk that physical force may be used to commit the crime of statutory rape. Certainly, when a forty-year-old has sex with a seventeen-year-old, it is more morally opprobrious to the State than when a twenty-year-old does. Moreover, an increase in the age of the perpetrator increases the likelihood that he will use “experience” or an “authority position” to seduce the minor.  It may thus increase the risk of guile, wiles, or deception in manipulating the minor to have sex. It may increase the risk that the perpetrator will corrupt the young person’s “virtue,” by leading him or her into a debauched life.  It may also increase the risk that the victim will sustain a sexually transmitted disease.

 

But none of these factors create a greater probability that the offense of unlawful sexual intercourse involves a substantial risk of the use of physical force. If anything, the contrary would seem to be true, as a forty-two-year-old is no more likely to use physical force than a twenty-two-year-old, and is probably less capable of doing so.[694]

 

Thus, counsel can argue that statutory rape against an older teen is not a crime of violence, regardless of the age of the actor.

 

(4)  Immigration v. Sentencing Context.  The Ninth Circuit in Valencia III drew a strong distinction between cases arising in the immigration context, where “crime of violence” is defined under 18 U.S.C. § 16(b) as an offense that by its nature involves a substantial risk that force will be use in commission of the offense, and a number of cases decided in the sentencing context where the definition turns upon whether the statutory rape involves a potential risk of injury as a result of the offense.  Including pregnancy and sexually transmitted disease as potential injuries that may result from statutory rape, the court stated that:

 

The risk that physical force may be used is one that a minor’s actual consent removes because, where the minor actually consents to sexual intercourse, force will not be necessary to overcome the minor’s resistance.

 

Actual consent, however, will not remove the potential risk of physical injury. As we held in Asberry, statutory rape exposes a minor to “serious potential risks of physical injury” in the form of pregnancy and sexually transmitted disease. [United States v. Asberry, 394 F.3d 712, 717-18 (9th Cir. 2005)]. These risks are present even if the minor knowingly and voluntarily consents to engage in sexual intercourse. Indeed, part of the reason for statutory rape laws is that minors have consensual sex without full regard for these risks, thereby suffering injury themselves and imposing costs on society.  See [Michael M. v. Super. Ct., 25 Cal .3d 608, at 612, 614-15 (1979), aff’d by 450 U.S. 464 (1981)]. Thus, statutory rape poses risks of physical injury, but does not, by its nature, involve a substantial risk of the use of physical force to commit the offense.[695]

 

However, the Seventh Circuit has also held that statutory rape is not necessarily a crime of violence for sentencing purposes.[696]  Applying the same “crime of violence” definition at issue in Asberry, the Seventh Circuit held that statutory rape did not always involve a substantial potential risk of injury.  The court rejected the argument that any sexual contact with a minor, who is legally unable to consent, presents a per se risk of injury.  The court noted that to accept this argument would mean that any unconsented touching is a felony crime of violence, including offenses like picking someone’s pocket.[697]  The court also noted that because of the wide variety of statutory rape laws, a conviction that would be considered to involve a per se risk of injury in one state might be completely legal in another.[698]  Additionally, where the statute of conviction includes sexual contact not amounting to intercourse, such as touching the buttocks through clothing, there is an even smaller chance that the offense would be likely to result in physical injury.[699]

 

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

[683] See, e.g., Chery v. Ashcroft, 347 F.3d 404 (2d Cir. Oct. 17 2003) (Connecticut conviction under Conn.G.S § 53a-71 for consensual sexual intercourse with a person under age 18 (statutory rape) is a crime of violence and aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes, even though no harm was actually done to 14-year-old victim, since offense involves a substantial risk that physical force might be used against the victim in the course of committing the offense); Matter of B, 21 I. & N. Dec. 287 (BIA Mar. 28, 1996) (where Maryland statute prohibits intercourse with child under 14 years, the offense invariably presents “a substantial risk that physical force will be wielded”), citing United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993); United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995); cf. United States v. Reve, 241 F.Supp.2d 470 (D.N.J. Jan. 31, 2003) (New Jersey conviction of sexual assault, defined as committing an act of sexual penetration with a victim who is at least thirteen but less than sixteen years old and the actor is at least four years older than the victim, in violation of former N.J.S.A. § 2C:14-2(c)(5) (1995), recodified, N.J.S.A. § 2C:14-2(c)(4) (Supp. 2002), did not constitute an aggravated felony under former INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), in effect prior to IIRAIRA, for purposes of revocation of naturalization, because the offense did not have as an element using, attempting to use, or threatening to use force against the victim, as required by 18 U.S.C. § 16(a), and the government did not argue substantial risk under 18 U.S.C. § 16(b)).

[684] Cf. United States v. Teeples, 432 F.3d 1110 (9th Cir. Jan 5, 2006) (violation of California Penal Code § 288(a), lewd act with a child under 14, found to be a crime of violence for sentencing purposes where the victim was the actor’s daughter); United States v. Martinez-Carillo, 250 F.3d 1101, 1106 (7th Cir. May 17, 2001) (“A child victim is likely to comply with the sexual request by or action of her father out of fear stemming from the belief that physical consequences will flow from noncompliance or simply because she trusts him not to do her wrong.  We find that incest presents an aggravating factor that evokes a serious potential risk of physical injury.”).

[685] Valencia v. Gonzalez, 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

[686] See also United States v. Houston, 364 F.3d 243 (5th Cir. 2004); United States v. Saywers, 409 F.3d 732, 741 (6th Cir. 2005).

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

[688] United States v. Shannon, 110 F.3d 382 (9th Cir. 1997) (en banc) (examining crime of violence definition under U.S.S.G. § 4B1.2).

[689] Valencia v. Gonzalez, 406 F.3d 1154 (9th Cir. May 12, 2005), withdrawn 431 F.3d 673 (9th Cir. Dec. 12, 2005), withdrawn 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

[690] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004).

[691] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004) (Florida conviction of driving under the influence and accidentally causing serious bodily injury, in violation of Florida Stats. Ann. § 316.193(3)(c), did not constitute an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of a substantial risk that the defendant would intentionally use force in the commission of the offense).

[692] Valencia v. Gonzales, 431 F.3d 673 (9th Cir. Dec. 12, 2005), opinion withdrawn and superseded, Valencia III, 439 F.3d 1046 (9th Cir. Mar. 6, 2006).

[693] See, e.g., Xiong v. INS, 173 F.3d 601, 606 (7th Cir. 1999) (“Thus there is no apparent age difference for us to point to as an aggravating factor.”); United States v. Thomas, 159 F.3d 296, 299 (7th Cir. 1997) (“Most states recognize that a substantial age difference is an aggravating factor.”).  Cf. Matter of KFD, 23 I. & N. Dec. 859 (BIA 2006) (“The respondent was convicted under a statute that criminalizes sexual activity between an adult who is at least 24 years of age and a minor who is at least 7 or 8 years younger, i.e., 16 or 17 years of age. . . .  This is a significant age discrepancy that reflects the seriousness and exploitative nature of the crime.”).

[694] Valencia v. Gonzalez, 439 F.3d 1046, 1055 (9th Cir. Mar. 6, 2006) (internal citations and footnotes omitted).

[695] Id. at *5.  See also United States v. Chavarriya-Mejia, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (Kentucky rape in the third degree, “statutory rape” in violation of Ky.Rev.Stat. § 510.060 is a “crime of violence” under U.S.S.G. § 2L1.2, as the Kentucky statute assumes lack of consent, and “sexual offenses by adults against children inherently involve physical force against children.”).

[696] United States v. Shannon, 110 F.3d 382 (9th Cir. 1997) (en banc) (examining crime of violence definition under U.S.S.G. § 4B1.2).

[697] Id. at 385.

[698] Id. at 386.

[699] Id. at 387.

AGGRAVATED FELONY - STATUTORY RAPE
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).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE CD4:24.29;AF:2.45;CMT3:3.44 RELIEF - INA 212(h) WAIVER - VIOLENT CRIMES
United States v. Christensen, 559 F.3d 1092 (9th Cir. Mar. 23, 2009) (Washington state conviction of statutory rape, in violation of Washington Revised Code 9A.44.079, did not constitute a "violent felony," so as to justify a sentence enhancement from 10 to 15 years for being a felon in possession of ammunition in violation of 18 U.S.C. 922(g)(1) and 924, under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), because that offense may involve consensual sexual intercourse).

Fourth Circuit

AGGRAVATED FELONY " STATUTORY RAPE
United States v. Rangel-Cataneda, __ F.3d __, No. 12-4408 (4th Cir. Mar. 7, 2013) (Tennessee aggravated statutory rape conviction under Tenn. Code Ann. 39-13-506(c) is not categorically a crime of violence for illegal re-entry purposes, because Tennessee sets the age of consent at eighteen).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE
United States v. Perez-Pena, __ F.3d __ (4th Cir. Jun. 30, 2006) (Florida conviction for felony lewd, lascivious, or indecent act upon a child, factually involving a sexual relationship between a 12 year old and a 21 year old, found to be a crime of violence for illegal re-entry sentencing purposes), following United States v. Pierce, 278 F.3d 282, 289-90 (4th Cir. 2002). http://caselaw.lp.findlaw.com/data2/circs/4th/055054p.pdf

Fifth Circuit

AGGRAVATED FELONY"CRIME OF VIOLENCE"SEXUAL ACTIVITY WITH A MINOR
United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. Feb. 13, 2012) (Florida conviction for sexual activity with a minor, in violation of Florida Statute 794.05, was not a crime of violence for illegal re-entry sentencing purposes, because state statute applied to 17-year-olds; defense counsel's admission at sentence that victim was 14 years of age established victim's status as a minor under the federal standard).

AGGRAVATED FELONY " STATUTORY RAPE
United States v. Sanchez, 667 F.3d 555 (5th Cir. Jan. 10, 2012) (Texas conviction of completed sexual assault of a child, in violation of Texas Penal Code 22.011(a)(2) and (c)(1), and 15.01(a), constituted a crime of violence, within the meaning of U.S.S.G. 2L1.2(b)(1)(A), for illegal reentry sentencing purposes, rejecting argument it is not a crime of violence because the relevant Texas statute, Texas Penal Code 22.011, defines child as a person younger than 17 years of age, whereas the majority of jurisdictions in the United States set the age of consent for sexual activity at sixteen); following United States v. Alvarado"Hernandez, 465 F.3d 188, 189 (5th Cir.2006) (Texas conviction under Texas Penal Code section 22.011(a)(2) meets a common sense definition of statutory rape even though the statute defines child as a person younger than the age of seventeen for purposes of its proscription on consensual sexual intercourse with a child); see also United States v. Castro"Guevarra, 575 F.3d 550, 552 (5th Cir. 2009) (the crime of sexual assault of a child under Tex. Penal Code 22.011(a)(2) falls within the guideline enhancement as sexual abuse of a minor.).

AGGRAVATED FELONY " ATTEMPTED SEXUAL ASSAULT OF A CHILD " CRIME OF VIOLENCE
United States v. Sanchez, 667 F.3d 555 (5th Cir. Jan. 10, 2012) (Texas conviction of completed sexual assault of a child, in violation of Texas Penal Code 22.011(a)(2) and (c)(1), and 15.01(a), constituted a crime of violence, within the meaning of U.S.S.G. 2L1.2(b)(1)(A), for illegal reentry sentencing purposes, rejecting argument it is not a crime of violence because the relevant Texas statute, Texas Penal Code 22.011, defines child as a person younger than 17 years of age, whereas the majority of jurisdictions in the United States set the age of consent for sexual activity at sixteen); following United States v. Alvarado"Hernandez, 465 F.3d 188, 189 (5th Cir.2006) (Texas conviction under Texas Penal Code section 22.011(a)(2) meets a common sense definition of statutory rape even though the statute defines child as a person younger than the age of seventeen for purposes of its proscription on consensual sexual intercourse with a child); see also United States v. Castro"Guevarra, 575 F.3d 550, 552 (5th Cir. 2009) (the crime of sexual assault of a child under Tex. Penal Code 22.011(a)(2) falls within the guideline enhancement as sexual abuse of a minor.).

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 - 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).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
United States v. Lopez-DeLeon, __ F.3d __, 2008 WL 82521 (5th Cir. Jan. 9, 2008) (California conviction for sexual intercourse with a minor, in violation of Penal Code 261.5(c) is sexual abuse of a minor for illegal re-entry sentencing purposes, even though statute is over-broad as it includes sex with a minor over 16 years old, where record of conviction showed that victim was, in fact, 14 years old).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Lopez-DeLeon, 513 F.3d 472 (5th Cir. Jan. 9, 2008) (California conviction of statutory rape, under Penal Code 261.5(c), was sexual abuse of a minor for illegal re-entry sentencing purposes, even though conviction statute was overbroad, where dismissed charge indicated that the victim was 14 years old).

This is a bad decision. Not only does the court here look at the underlying facts of the conviction, rather than the minimum conduct punishable under the statute, the court also looks to information from a dismissed count (Penal Code 288(a), lewd act with a person under 14) to make its determination that the offense was Sexual Abuse of a Minor. This is a guidelines case. The defendant's sentence was not enhanced for having an aggravated felony conviction as defined in INA 101(a)(43)(A), but rather for fitting under the following definition in the application notes to the sentencing guidelines. The illegal reentry sentencing guideline provides for two "crime of violence" enhancements. They are different from the immigration aggravated felony definition, and this case may not apply to the immigration context.

This case was wrongly decided, and may be damaging for immigration purposes, since the same reasoning can be applied in the aggravated felony immigration context. There does not appear to be any difference between the definition of Sexual Abuse of a Minor for aggravated felony as opposed to sentencing purposes (BIA deference notwithstanding), and the Fifth Circuit was purportedly applying Shepard and the categorical analysis.

AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE
United States v. Alvarado-Hernandez, ___ F.3d ___, 2006 WL 2621650 (5th Cir. Sept. 14, 2006) (Texas conviction for consensual sexual intercourse with a 14-year-old victim in violation of Penal Code 22.011(a)(2), met the common-sense definition of crime of violence, for purposes of imposing a sixteen-level upward adjustment for an illegal-reentry conviction under U.S.S.G. 2L1.2(b)(1)(A)(ii) since it fell within the generic, contemporary definition of "statutory rape" which is specifically listed as a "crime of violence" for this purpose).

Eighth Circuit

AGGRAVATED FELONY " CRIMES OF VIOLENCE " STATUTORY RAPE
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree sexual assault, in violation of Ark.Code Ann. 5"14"125(a) (2002), is categorically a crime of violence for purposes of the Armed Career Criminals Act, since the elements of the statute necessarily involve either a use of force or substantial risk that force will be used).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " STATUTORY RAPE
United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. Jan. 17, 2013) (Washington conviction for third-degree rape, in violation of RCW 9A.44.060(1)(a), qualified as a "forcible sex offense" supporting a 16-level crime-of-violence enhancement under the Sentencing Guidelines, U.S.S.G. 2L1.2(b)(1)(A)). Note: RCW 9A.44.060(1)(A) punishes any rape that does not constitute first or second degree rape. The statute does not contain any further elements. Without conducting any analysis of Washington case law to determine whether any judicially identified elements exist, and thus whether the statute could be considered divisible, the Court found it could skip the categorical analysis, and apply directly the modified categorical analysis. This allowed the court to conclude the offense was a forcible sex offense which includes any non-consensual sexual intercourse, because the factual basis specified that no consent had been given. The court did not cite Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MODIFIED CATEGORICAL APPROACH
United States v. Gonzalez-Aparicio, ___ F.3d ___, 2011 WL 2207322 (9th Cir. Jun. 8, 2011) (Arizona conviction for sexual conduct with a minor, in violation of Arizona Revised Statutes 13"1405, constituted an enumerated crime of violence offense (statuory rape) for illegal re-entry sentencing purposes, under the modified categorical approach). NOTE This decision notes tension between statutory rape/sexual abuse of a minor cases in the sentencing and immigration contexts.

AGGRAVATED FELONY - STATUTORY RAPE
United States v. Castro, 599 F.3d 1050 (9th Cir. Mar. 26, 2010) (California conviction for lewd acts with a child 14-15 years of age, under California Penal Code 288(c)(1), did not categorically constitute "statutory rape," and therefore did not qualify as a crime of violence for illegal re-entry sentencing purposes, since the term "lewd acts" includes acts not included in 18 U.S.C. 2243, defining "sexual act" for purposes of defining "statutory rape"), following Estrada-Espinosa v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

AGGRAVATED FELONY - STATUTORY RAPE - ELEMENTS
United States v. Medina-Villa, 570 F.3d 213 (9th Cir. June 23, 2009) ("sexual abuse of a minor" is defined by reference to 18 U.S.C. 2243 in the context of a conviction for statutory rape, but not in other contexts of "sexual abuse of a minor.")

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).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE
United States v. Rodriguez-Guzman, __ F.3d __, 2007 WL 3052987 (9th Cir. Oct. 22, 2007) (California conviction for unlawful sex with a minor under the age of eighteen, in violation of Penal Code 261.5(c), is not categorically a "crime of violence" for illegal re-entry sentencing purposes, since the conviction is overly-inclusive; defining "minor," by reference to federal law, as a person under the age of 16 years old).

The court looked to BLACKS LAW DICTIONARY to define "statutory rape" as unlawful sex with a minor who under the age of consent, and to define "age of consent" as the age at which a person may consent to marry or have sexual intercourse without parental consent. The court noted that the majority of states define 16 years of age as the age of consent for these purposes, and then applied the "common, ordinary meaning" (i.e., the majority meaning), to find 16 years of age to be the appropriate age of consent for federal sentencing purposes.

The court distinguished this case from cases in the aggravated felony "sexual abuse of a minor" immigration context, Estrada-Espinoza, __ F .3d __ (9th Cir. Aug. 16, 2007); Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006), on the basis that the court owes deference to the BIA interpretation of "minor" in the immigration, but not the sentencing context.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
Estrada-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 2325138 (9th Cir. Aug. 16, 2007) (per curiam) (California conviction of unlawful sex with a minor, or statutory rape, under Penal Code 261.5(c), constitutes "sexual abuse of a minor" within the meaning of INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A)), following Afridi v. Gonzales, 442 F.3d 1212, 1217 (9th Cir.2006) (quoting Matter of Rodriguez-Rodriguez, 22 I & N Dec. 991, 991, 995 (BIA 1999)), as binding precedent.

Note: Two of the three judges in this panel decision suggested strongly that this case, and Afridi should be reconsidered en banc, in favor of the reasoning applied in the Ninth Circuits decision in United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir.2006) (Tennessee statutory rape is not aggravated felony sexual abuse of a minor for sentencing purposes). The court did not address the possible argument that Lopez-Solis should control as precedent.

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE
United States v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. Jun. 7, 2007) (Oregon conviction of sexual abuse in the second degree, in violation of Oregon Revised Statute 163.425, did not qualify as a "crime of violence," for purposes of 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), of his sentence for illegal reentry after deportation both because the state statute does not make force - be it used, attempted, or threatened - an element of the crime, and because the crime does not constitute a "forcible sex offense" within the meaning of the applicable guideline).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE
United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir. May 14, 2007) (California conviction for unlawful sexual intercourse with a minor by a person twenty-one years of age or older, in violation of Cal.Penal Code 261.5(d), qualifies as a "crime of violence" for illegal re-entry sentencing purposes, since U.S.S.G. 2L1.2 cmt. n. 1(B)(iii) explicitly includes "statutory rape" as an enumerated crime of violence).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
The Ninth Circuit ordered that Estrada-Espinoza v. Mukasey, 498 F.3d 933 (9th Cir. 2007), be reheard en banc. In this case, a panel of the Ninth Circuit found that a statutory rape conviction constituted an aggravated felony (sexual abuse of a minor). The court noted that it was bound by a prior panel decision, Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2002). In its May 6, 2008 order granting rehearing en banc, the court said, "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." The court heard argument on June 25, 2008. Two amicus briefs, including one by AILA, were submitted in support of the petition for rehearing en banc. The petition for rehearing, the amicus briefs, and the governments opposition are available on the Ninth Circuits website at http://www.ca9.uscourts.gov/ca9/Documents.nsf/174376a6245fda7888256ce5007d5470/a59aac6c107bc187882572c2005d1b26/$FILE/05-75850pfr.pdf

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE - REHEARING ESTRADA-ESPINOZA EN BANC
The Ninth Circuit ordered that Estrada-Espinoza v. Mukasey, 498 F.3d 933 (9th Cir. 2007), be reheard en banc. The petition for rehearing, the amicus briefs, and the governments opposition are available on the Ninth Circuits website at http://www.ca9.uscourts.gov/ca9/Documents.nsf/174376a6245fda7888256ce5007d5470/a59aac6c107bc187882572c2005d1b26/$FILE/05-75850pfr.pdf

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
United States v. Lopez-Solis, __ F.3d __, 2006 WL 1360075 (9th Cir. May 19, 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").
http://caselaw.lp.findlaw.com/data2/circs/9th/0310059p.pdf

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - UNLAWFUL SEX WITH A MINOR HELD AGGRAVATED FELONY
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).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
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.

AGGRAVATED FELONY - STATUTORY RAPE
Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. April 3, 2006) (statutory rape comes within the definition of aggravated felony "rape"), opinion withdrawn on denial of rehearing as moot, 2007 WL 851336 (9th Cir. March 22, 2007), opinion superseded, 2007 WL 851768 (9th Cir. March 22, 2007) (unpublished) (IJ erred when he applied the "extreme hardship" standard to deny a waiver of inadmissibility for asylees under INA 209(c), 8 U.S.C. 1159(c), without first making a determination based on the facts underlying Rivass conviction that Rivass crime was violent or dangerous; withdrawing discussion of rape), citing In re KA, 23 I. & N. Dec. 661, 666 (BIA 2004).

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).