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.