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Aggravated Felonies





 


 

§ A.38 . Sexual Abuse of a Minor

 





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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.

                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - UNLAWFUL SEX WITH A MINOR

                      Matter 
                    of VFD, 23 I. & N. Dec. 859 (BIA 2006) (Florida conviction 
                    for unlawful sexual activity with a minor, in violation of 
                    Fla. Stat. Ann. § 794.05(1), is an aggravated felony sexual 
                    abuse of a minor offense under INA § 101(a)(43)(A), 8 U.S.C. 
                    § 1101(a)(43)(A), for immigration purposes; 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).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR

                      Matter of Small, 23 I. & N. Dec. 448 
                    (BIA June 4, 2002) (en banc) (New York misdemeanor conviction 
                    sexual abuse in the second degree, in violation of New York 
                    Penal Law § 130.60(2), constitutes "sexual abuse of a 
                    minor" and is therefore an aggravated felony under INA 
                    § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A)).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - INDECENT EXPOSURE

                      Matter of Rodriguez-Rodriguez, 
                    22 I. & N. Dec. 991 (BIA Sept. 16, 1999) (en banc) (Texas 
                    conviction of indecency with a child by exposure of private 
                    parts, pursuant to section 21.11(a)(2) of the Texas Penal 
                    Code, constitutes sexual abuse of a minor and is therefore 
                    an aggravated felony within the meaning of INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A)).
                    


                  


                    
                    
                    
 
                      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).

                    


                  
First Circuit


                    
                    
                    
 
                      AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD ENDANGERMENT 

                      Campbell v. Holder, 698 F.3d 29, *31 (1st Cir. Oct. 19, 2012) (Connecticut conviction of risk of injury to a minor under of the Connecticut General Statutes  53"21(a)(1) (penalizing [a]ny person who ... wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child...], does not categorically constitute aggravated felony sexual abuse of a minor, under INA  101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A), since the statute includes non-sexual acts such as providing alcohol to a minor).

                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - LEWD ASSAULT ON CHILD

                      United States v. 
                    Londono-Quintero, 289 F.3d 147 (1st Cir. May 6, 2002) (Florida 
                    conviction of lewd and lascivious assault on child, in violation 
                    of F.S.A. § 800.04, was sexual abuse of a minor and therefore 
                    an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C.  
                    1101(a)(43)(A) warranting enhancement of sentence for illegal 
                    re-entry under U.S.S.G. § 2L1.2(b)(1)(A)).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - INDECENT ASSAULT ON A CHILD

                      Emile v. INS, 
                    244 F.3d 183 (1st Cir. Mar. 30, 2001) (Massachusetts conviction 
                    for indecent assault and battery on a child under 14, in violation 
                    of Mass. Gen. Laws ch. 265 § 13B, qualified as an aggravated 
                    felony under INA § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A), 
                    since state statute included conduct that, with an appropriate 
                    federal nexus, would violate federal sexual abuse statutes).
                    


                  
Lower Courts of First Circuit


                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - RAPE OF A CHILD

                      Sango-Dema v. District 
                    Director, INS, 122 F.Supp.2d 213 (D.Mass. Nov. 20, 2000) (Massachusetts 
                    conviction for rape of a child, under Mass. Gen. L. ch. 265, 
                    § 23, with sentence of two and a half years in custody, constitutes 
                    "sexual abuse of a minor," an aggravated felony 
                    under INA § 101(43)(A), 8 U.S.C.  1101(43)(A), for removal 
                    purposes).
                    


                  
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).
                    



                    
                    
                    
 
                      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 " 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.


                    


                  
Lower Courts of Second Circuit


                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - RISK OF INJURY

                      Santapaola v. Ashcroft, 
                    249 F.Supp.2d 181 (D.Conn. Mar. 13, 2003) (Connecticut conviction 
                    for risk of injury, in violation of Conn. Gen.Stat. § 53-21(1), 
                    constituted an aggravated felony conviction for "sexual 
                    abuse of a minor" within meaning of INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A), as a ground of deportation).
                    


                  
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 " 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).


                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - UNLAWFUL SEXUAL CONTACT

                      Singh v. Ashcroft, 
                    383 F.3d 144 (3d Cir. Sept. 17, 2004) (Delaware conviction 
                    of unlawful sexual contact in the third degree under Del. 
                    C. § 767, penalizing "sexual contact with another person 
                    [with knowledge] that the contact is either offensive to the 
                    victim or occurs without the victims consent," does 
                    not constitute sexual abuse of a minor under INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A), for purposes of triggering deportability).


                    


                  
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 - 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

                      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 - 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.)


                    



                    
                    
                    
 
                      AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF A CHILD

                      United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. Apr. 2, 2007) (Kansas conviction for violation of K.S.A. 21-3510(a)(1), solicitation of a child to perform an illegal sex act is "sexual abuse of a minor" and thus a "crime of violence" for illegal re-entry sentencing purposes, on the basis that the act "is abusive because of the psychological harm it can cause, even if any resulting sex is consensual").
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - INDECENT LIBERTIES WITH A CHILD

                      United 
                    States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 
                    2005) (North Carolina conviction for taking indecent liberties 
                    with a child, in violation of North Carolina General Statute 
                    § 14-202.1(a)(1) - "being 16 years of age or more and 
                    at least five years older than the child in question, he . 
                    . . willfully takes or attempts to take any immoral, improper, 
                    or indecent liberties with any child of either sex under the 
                    age of 16 years for the purpose of arousing or gratifying 
                    sexual desire . . .." - constituted sexual abuse of a 
                    minor for purposes of enhancing a sentence for illegal re-entry 
                    after deportation, under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003)).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - INDECENCY WITH CHILD BY EXPOSURE

                      United 
                    States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. June 13, 
                    2000), cert. denied, 531 U.S. 982, 121 S.Ct. 434 (2000) (Texas 
                    conviction of sexual indecency with a child by exposure under 
                    Texas Penal Code § 21.11(a)(2), constitutes an aggravated 
                    felony "sexual abuse of a minor" under INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A), for purposes of the aggravated 
                    felony sentencing enhancement, U.S.S.G. § 2L1.2, for illegal 
                    re-entry).
                    


                  
Sixth Circuit


                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR

                      United States v. Gonzales-Vela, 276 F.3d 
                    763 (6th Cir. Nov. 21, 2001) (Kentucky misdemeanor conviction 
                    for sexual abuse of minor, in violation of K.R.S. § 510.120(1)(a, 
                    b), constituted aggravated felony under INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A), for purposes of sentencing enhancement 
                    under U.S.S.G. § 2L1.2(b) for illegal re-entry).
                    


                  
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).

                    



                    
                    
                    
 
                      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

                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - INDECENT SOLICITATION OF A CHILD

                      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), 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).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - SOLICITATION OF A SEXUAL ACT

                      Gattem v. 
                    Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005) (Illinois 
                    conviction of misdemeanor solicitation to engage in a sexual 
                    act, in violation of 720 ILCS § 5/11-14.1(a), is an aggravated 
                    felony sexual abuse of a minor offense for immigration purposes 
                    where the criminal complaint (and no other document) shows 
                    that the victim was under the age of 18).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - SEXUAL ASSAULT

                      United States v. Martinez-Carillo, 
                    250 F.3d 1101 (7th Cir. May 17, 2001), cert. denied, 122 S.Ct. 
                    285 (2001) (Illinois conviction for criminal sexual assault 
                    in violation of 720 ILCS § 5/12-13(a)(3), for inserting finger 
                    into daughters vagina, who was thirteen years old at the 
                    time, was an aggravated felony as sexual abuse of a minor, 
                    under INA § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A), for 
                    purposes of enhancing illegal re-entry sentence).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR

                      Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 
                    Mar. 6, 2001) (Illinois sexual assault conviction, in violation 
                    of Ill.Rev.Stat.1991, ch. 38, § 12-13(a)(1, 2), which involved 
                    four-year-old victim, was "aggravated felony" of 
                    "sexual abuse of a minor" within meaning of INA 
                    § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A) for deportation 
                    purposes).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR

                      Guerrero-Perez v. INS, 242 F.3d 727 (7th 
                    Cir. Mar. 5, 2001) (Illinois misdemeanor conviction for sexual 
                    abuse of minor in violation of 720 ILCS § 5/12-15(c), constituted 
                    aggravated felony under INA § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A) 
                    for deportation purposes), pet. for rehearing denied, 256 
                    F.3d 546 (9th Cir. 2001).
                    


                  
Lower Courts of Seventh Circuit


                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR

                      Guadarrama v. Perryman, 48 F.Supp.2d 782 
                    (N.D.Ill. May 6, 1999) (Wisconsin conviction of second-degree 
                    sexual abuse of a child constituted an aggravated felony under 
                    INA § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A) for removal 
                    purposes).
                    


                  
Eighth Circuit


                    
                    
                    
 
                      AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR

                      United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code  21.11(a)(1) not categorically sexual abuse of a minor for illegal re-entry sentencing purposes; "Subsection (a)(1), then, prohibits consensual sexual contact between two persons who are a day under 17, and of the same gender. This does not fit the ordinary, contemporary, common meaning of sexual abuse of a minor.")

                    



                    
                    
                    
 
                      AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR

                      United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code  21.11, is sexual abuse of a minor for illegal re-entry sentencing purposes where indictment indicated that minor was under the age of seventeen and the defendant was at least 8 years older).

                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - SEXUAL ASSAULT OF A MINOR

                      United States 
                    v. Mendez-Morales, 384 F.3d 927 (8th Cir. Oct. 6, 2004) (Nebraska 
                    conviction of first-degree sexual assault of a minor constituted 
                    aggravated felony sexual abuse of a minor, for purposes of 
                    illegal re-entry sentence enhancement).
                    


                  
Ninth Circuit


                    
                    
                    
 
                      AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD MOLESTATION

                      United States v. Martinez, ___ F.3d ___, ___, 2015 WL 3406178 (9th Cir. May 28, 2015) (Washington conviction of third-degree child molestation, in violation of Wash. Rev.Code  9A.44.089, is categorically not an aggravated felony sexual abuse of a minor offense, under INA  101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A), since the offense is not divisible and includes touching over clothing; sexual abuse of a minor requires skin on skin contact); see State v. Soonalole, 992 P.2d 541, 544 & n.13 (Wash.Ct.App.2000) (holding that the fondling and thigh rubbing over the victim's clothes constituted a separate act of third-degree child molestation under state criminal law for double jeopardy purposes); see also United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as amended (holding that a California statute prohibiting lewd and lascivious acts on a child, under Penal Code  288(a), was categorically broader than the generic definition for sexual abuse of a minor because [l]ewd touching [under the state statute] can occur through a victim's clothing and can involve any part of the victim's body).


                    



                    
                    
                    
 
                      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 " 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 - SEXUAL CONTACT

                      
Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. May 20, 2010) (Arizona conviction for violation of ARS  14-1405, sexual conduct with a minor under 18, is not categorically an aggravated felony for immigration purposes, since it does not meet the generic federal definition of "sexual abuse of a minor"), following Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009). 

                    



                    
                    
                    
 
                      AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR

                      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 a "sexual abuse of a minor," and therefore did not qualify as a crime of violence for illegal re-entry sentencing purposes, since sexual conduct with a 15 year old is not per se abusive), following Pelayo-Garcia v. Holder, 589 F.3d 1010, 1015-16 (9th Cir. 2009).


                    



                    
                    
                    
 
                      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 - 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).

                    



                    
                    
                    
 
                      POST CON RELIEF - FEDERAL - AEDPA STATUTE OF LIMITATIONS - STATE CONVICTIONS

                      Allen v. Siebert, 128 S.Ct. 2 (9th Cir. Nov. 5, 2007) (when a postconviction petition is untimely under state law, "that [is] the end of the matter" for purposes of tolling the AEDPA's 1-year statute of limitations for filing a federal habeas petition, and the inquiry does not turn on the nature of the particular time limit relied upon by the state court at issue).

                    



                    
                    
                    
 
                      AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - PUBLIC INDECENCY TO CHILD

                      Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS  13-1001 and 13-1403(B), includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA  101(a)(43)(A), (U), 8 U.S.C.  1101(a)(43)(A) and (U); statute includes acts that do not involve touching or knowledge of the child, and therefore do not involve sexual abuse of a minor).  Note: the court examined Arizona state caselaw, applying Duenas.


                    



                    
                    
                    
 
                      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.")


                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - CONVICTION DID NOT CATEGORICALLY CONSTITUTE SEXUAL ABUSE OF A MINOR BECAUSE THE ELEMENTS DID NOT REQUIRE PSYCHOLOGICAL OR PHYSICAL ABUSE

                      United States v. Baza-Martinez, ___ F.3d 
                    ___, 2006 WL 2729691 (9th Cir. Sept. 26, 2006) (North Carolina 
                    conviction of taking indecent liberties with a child, in violation 
                    of N.C.G.S. § 14-202.1 [take or attempt an immoral, improper, 
                    or indecent liberty with a child under 16 by defendant more 
                    than five years older, for purpose of arousing or gratifying 
                    sexual desire, which can be committed by mere words], was 
                    not categorically sexual abuse of a minor, because the statute 
                    did not require as an element the infliction of psychological 
                    or physical harm to the minor, and therefore did not constitute 
                    a crime of violence under USSG § 2L1.2(b)(1)(A)(ii) for 
                    purposes of imposing a 16-level enhancement of sentence for 
                    illegal reentry), disagreeing with United States v. Izaguirre-Flores, 
                    405 F.3d 270 (5th Cir. 2005); Bahar v. Ashcroft, 264 F.3d 
                    1309 (11th Cir. 2001) (interpreting same statute of conviction 
                    but reaching opposite conclusion).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - COMMUNICATION WITH MINOR FOR IMMORAL PURPOSES

                      
                    Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005) 
                    (Washington conviction of communication with a minor for immoral 
                    purposes, in violation of Washington Revised Code § 9.68A.090, 
                    is not categorically an aggravated felony under INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A), because the statute broadly included 
                    "immoral purposes" such as providing information 
                    on how to get an unlawful abortion, displaying pornography 
                    visible from a public thoroughfare, and allowing a minor onto 
                    the premises of a live erotic performance, which, while not 
                    commendable, were not abusive in nature).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - UNLAWFUL SEX WITH A MINOR

                      Valencia v. Gonzales, 
                    406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction 
                    of felony unlawful sexual intercourse with a minor by a person 
                    more than three years older, in violation of Penal Code § 
                    261.5(c), constituted sexual abuse of a minor, and was therefore 
                    an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C.  
                    1101(a)(43)(A), for deportation purposes), withdrawn and superceded 
                    by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF MINOR - SEXUAL SEDUCTION

                      United States v. Alvarez-Gutierrez, 
                    394 F.3d 1241 (9th Cir. Jan. 14, 2005) (Nevada conviction 
                    for statutory sexual seduction, for having had sexual intercourse 
                    with a 14-year-old girl, in violation of Nev.Rev.Stat. § 
                    200.364, 368, punishable as a gross misdemeanor by a sentence 
                    of up to one year, Nev.Rev.Stat. § 193.140, constituted sexual 
                    abuse of a minor, and was therefore an aggravated felony under 
                    INA § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A), for purposes 
                    of imposing an eight-level illegal re-entry sentence enhancement 
                    under U.S.S.G. § 2L1.2(b)(1)(C)).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - ANNOY MOLEST

                      United States v. Pallares-Galan, 
                    359 F.3d 1088 (9th Cir. Feb. 20, 2004) (California conviction 
                    of violating Penal Code § 647.6(a), annoy or molest a child 
                    under 18, is conviction under a "divisible statute," 
                    and does not constitute an aggravated felony "sexual 
                    abuse of a minor" offense for illegal re-entry sentencing 
                    purposes).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - LEWD ACT WITH A CHILD

                      Cedano-Viera v. Ashcroft, 
                    324 F.3d 1062 (9th Cir. Apr. 7, 2003) (Nevada conviction of 
                    lewd act on a child, in violation of Nevada Revised Statute 
                    § 201.230(1), constituted sexual abuse of a minor and was 
                    therefore an aggravated felony under INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A), depriving the court of appeals 
                    of jurisdiction to review a removal order).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR

                      United States v. Mendoza-Iribe, 198 F.3d 
                    742 (9th Cir. Oct. 18, 1999), cert. denied, 529 U.S. 1061 
                    (2000) (California conviction under California Penal Code 
                    § 289(j) for penetrating genital or anal openings of child 
                    under 14 years of age with foreign object was sexual abuse 
                    of a minor under INA § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A), 
                    and therefore "aggravated felony" warranting sentence 
                    enhancement for illegal re-entry).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - LEWD ACT WITH A CHILD

                      United States v. 
                    Baron-Medina, 187 F.3d 1144 (9th Cir. Aug. 19, 1999), cert. 
                    denied, 531 U.S. 1167 (2001) (California conviction for committing 
                    a lewd act on a child under 14, in violation of California 
                    Penal Code § 288(a), constitutes "sexual abuse of a minor," 
                    and is therefore an "aggravated felony" within the 
                    meaning of INA § 101(a)(43)(A), 8 U.S.C.  1101(a)(43)(A) 
                    for purposes of a sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) 
                    for illegal re-entry).
                    


                  
Lower Courts of Ninth Circuit


                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR

                      Santiago v. U.S. INS, 134 F.Supp.2d 1102 
                    (N.D.Cal. Mar. 26, 2001) (California conviction of committing 
                    a lewd act with a child, in violation of California Penal 
                    Code § 288(A), constituted aggravated felony under INA  101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A) as sexual abuse of a minor for immigration 
                    purposes).
                    


                  
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).


                    



                    
                    
                    
 
                      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).

                    


                  
Eleventh Circuit


                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - INDECENT ASSAULT ON MINOR

                      Chuang v. U.S. 
                    Attorney General, 382 F.3d 1299 (11th Cir. Sept. 2, 2004) 
                    (Florida conviction for "indecent assault child under 
                    16," in violation of Fla. Stat. § 800.04, qualified as 
                    sexual abuse of a minor, thus rendering him deportable as 
                    an aggravated felon under INA § 101(a)(43)(A), 8 U.S.C.  
                    1101(a)(43)(A)).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - INDECENT LIBERTIES

                      Bahar v. Ashcroft, 264 
                    F.3d 1309 (11th Cir. Sept. 10, 2001) (North Carolina conviction 
                    of taking indecent liberties with a minor, in violation of 
                    N.C.G.S. § 14-202.1, constituted "sexual abuse of a minor," 
                    triggering removal as aggravated felon under INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A), even though the defendant did not 
                    engage in some form of physical contact with minor).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - LEWD ACT ON CHILD

                      United States v. Padilla-Reyes, 
                    247 F.3d 1158 (11th Cir. Apr. 11, 2001), cert. denied, 122 
                    S.Ct. 256 (2001) (Florida conviction of violating Florida 
                    Statute § 800.04, "Lewd, lascivious, or indecent assault 
                    or act upon or in presence of child; sexual battery," 
                    constitutes "sexual abuse of a minor," and therefore 
                    an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C.  
                    1101(a)(43)(A), for purposes of enhancing illegal re-entry 
                    sentence under U.S.S.G. § 2L1.2(b)(1)(A), even though the 
                    offense does not arise to the level of rape or sexual battery, 
                    since sexual abuse of a minor meant physical or nonphysical 
                    misuse or maltreatment of a minor for a purposes associated 
                    with sexual gratification).
                    



                    
                    
                    
 
                      SEXUAL ABUSE OF A MINOR - CHILD MOLESTATION

                      United States v. Marin-Navarette, 
                    244 F.3d 1284 (11th Cir. Mar. 23, 2001), cert. denied, 122 
                    S.Ct. 317 (2001) (Washington conviction of third-degree child 
                    molestation constitutes "sexual abuse of a minor," 
                    and therefore an aggravated felony under INA § 101(a)(43)(A), 
                    8 U.S.C. § 1101(a)(43)(A), for purposes of enhancing illegal 
                    re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A)).
                    


                  
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).


                    


                    









 

	

	 

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