BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " SODOMY BY FORCE
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (military crime of sodomy by force in violation of Uniform Code of Military Justice, article 125, 10 U.S.C. 925, and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. 16).

First Circuit

THIRD-DEGREE SEXUAL ASSAULT - CRIME OF VIOLENCE
Aguiar v. Gonzales, 438 F.3d 86 (1st Cir. Feb. 16, 2006) (Rhode Island conviction of third-degree sexual assault, in violation of R.I. Gen. Laws § 11-37-6 ["over the age of eighteen (18) and engaged in sexual penetration with another person over the age of fourteen (14) and under the age of consent, sixteen (16) years of age"], with two-year suspended term of imprisonment, constituted a "crime of violence" under 18 U.S.C. 16(b), since it involved a substantial risk that physical force would be used in its commission, and was therefore an aggravated felony crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes).

Third Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) " RECKLESS MENS REA DOES NOT NECESSARILY BAR CRIME OF VIOLENCE UNDER 18 U.S.C. 16(b)
Aguilar v. Attorney General of the U.S., ___ F.3d ___, 2011 WL 5925141 (3d Cir. Nov. 29, 2011) (Pennsylvania conviction of sexual assault, under 18 Pa. Cons.Stat. 3124.1, constituted a crime of violence under 18 U.S.C. 16(b), and was therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though the offense has a minimum mens rea of recklessness; because sexual assault raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, we agree with the BIA that it constitutes a crime of violence under 16(b).).

SEXUAL ASSAULT - CRIME OF VIOLENCE
United States v. Remoi, 404 F.3d 789 (3d Cir. Apr. 13, 2005) (New Jersey conviction of sexual contact with a helpless victim, in violation of New Jersey Statute § 2C:14-2c(2), requiring that victim of "penetration" have been "physically helpless" or "mentally defective or incapacitated," is a crime of violence for illegal re-entry sentencing purposes; although statute does not require physical force, it may be satisfied by proof that the contact occurred through exploitation of the victims helplessness, thus qualifying as a "forcible sex offense (including sexual abuse of a minor)" under U.S.S.G. § 2L1.2, app. n.1(B)(ii)).

Fourth Circuit

SEXUAL BATTERY - CRIME OF VIOLENCE
Wireko v. Reno, 211 F.3d 833 (4th Cir. May 4, 2000) (Virginia conviction of misdemeanor sexual battery, in violation of Va.Code 1950, § 18.2-67.4, was a crime of violence, and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for immigration purposes precluding judicial review of a removal order), distinguished by Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. Mar. 5, 2001).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) "ATTEMPTED SEXUAL ASSAULT
Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Texas conviction of attempted sexual assault, in violation of Texas Penal Code 22.011(a)(1(C) [(1) intentionally or knowingly: . . . (C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;], did not categorically constitute an aggravated felony crime of violence for immigration purposes, because in a sexual encounter with a physician or a clergyman [both contained within the statutory definition of without consent], a victim could factually assent to the sexual relation, despite consent being deemed a legal nullity. In such situations, there is not a substantial risk that physical force may be used because there is not the same risk that the victim may figure out what's really going on and decide to resist as there would be if, as in Zaidi, a victim could wake up and resist an ongoing assault.); quoting Zaidi v. Ashcroft, 374 F.3d 357, 358 (5th Cir.2004) (per curiam).

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 - CRIME OF VIOLENCE - FORCIBLE SEXUAL CONTACT
United States v. Rosas-Pulido , 526 F.3d 829 (5th Cir. May 2, 2008) (Minnesota conviction for unlawful sexual contact, in violation of M.S.A. 609.345(1)(c), punishing use of "force or coercion to accomplish" sexual contact is not a "forcible" sex offense for illegal re-entry sentencing purposes as the minimum conduct punishable under the statute includes a 14 year old giving a nipple twister to a classmate, an offense that does not involve forcible compulsion), citing In Re DLK, 381 N.W.2d 435, 436 (Minn. 1986) (nipple twister case).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Martinez-Vega, __ F.3d __ (5th Cir. Nov. 29, 2006) (Texas conviction for sexual assault of a child under 17, in violation of Texas Penal Code 22.011, is a "crime of violence" as "sexual abuse of a minor" for illegal re-entry sentencing purposes, especially where noncitizen defendant admitted before criminal judge that all facts in PSR were correct [i.e. that he sexually abused his 14 year old daughter]). http://caselaw.lp.findlaw.com/data2/circs/5th/0541498cr0p.pdf

THIRD DEGREE CRIMINAL SEXUAL CONDUCT - CRIME OF VIOLENCE
United States v. Fernandez-Cusco, __ F.3d __ (5^th Cir. Apr. 20, 2006) (Minnesota felony conviction for third degree sexual conduct, under Minn. Stat. 8 § 609.344, is not necessarily a "forcible sex offense," and therefore not categorically a crime of violence for illegal re-entry sentencing purposes).

ATTEMPTED SEXUAL BATTERY - CRIME OF VIOLENCE
United States v. Meraz-Enriquez, __ F.3d __, 2006 WL 515477 (5^th Cir. Mar. 3, 2006) (Kansas conviction of attempted sexual battery, in violation of Kan. Stat. Ann. § 21- 3518, which punishes a sexual touching of a person who is too intoxicated to be able to give consent to the touching, is not a crime of violence for illegal re-entry sentencing purposes because the offense does not require the use of force).

SEXUAL BATTERY - CRIME OF VIOLENCE
Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. June 21, 2004) (Oklahoma conviction for sexual battery ("the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner and without the consent of that other person . . . ."), in violation of Okla. Stat. Ann. tit. 21, § 1123(B), constituted a "crime of violence," as defined in 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), rendering the noncitizen subject to removal, under INA § 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), because the unconsented touching created a substantial risk that force would be used to complete the offense, and consequently the court of appeal lacked jurisdiction to review the final order of removal).

SEXUAL ASSAULT - CRIME OF VIOLENCE
United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. June 21, 2004) (Missouri conviction of sexual assault, in violation of Mo. Ann. Stat. § 566.040(1) committed if "he has sexual intercourse with another person knowing that he does so without that persons consent," did not qualify as a crime of violence under U.S.S.G. § 2L1.2 cmt. n.1(B)(ii), for purposes of 16-level enhancement of sentence for illegal re-entry).

Sixth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL BATTERY
United States v. Wynn, 579 F.3d 567 (6th Cir. Sept. 2, 2009) (Ohio conviction for violation of Ohio R.C. 2907.03, sexual battery, is not categorically a "crime of violence" for career offender sentencing purposes, since some subsections of the statute do not necessarily require the use of violent force, but only lack of consent, which may only require lack of lawful ability to consent).

SEXUAL ASSAULT - CRIME OF VIOLENCE
Patel v. Ashcroft, 401 F.3d 400 (6th Cir. Mar. 8, 2005) (Illinois conviction of criminal sexual abuse, in violation of 720 Ill. Comp. Stat. § 5/12-15, constituted a crime of violence under 18 U.S.C. § 16(b), and was therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), "because of the disparate ages of the defendant and the victim, or the mental incapacity or physical helplessness of the victim, or the defendants position of authority over the victim, the crime, semper et ubique, includes a substantial risk of physical force.").

ASSAULT WITH INTENT TO COMMIT SEXUAL BATTERY - CRIME OF VIOLENCE
United States v. Arnold, 58 F.3d 1117, 1122 n. 4 (6th Cir. July 13, 1995) (Tennessee conviction for assault with intent to commit sexual battery is not categorically a "crime of violence" for purposes of 18 U.S.C. § 922(g)(1) (felon with a firearm) because the minimum conduct of the offense can be committed through force or coercion).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL BATTERY
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction of sexual battery, in violation of Penal Code 243.4(a), unlawful sexual touching of a restrained person, did not constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress, and without use of force).

AGGRAVATED FELONY " CRIME OF VIOLENCE " PENETRATION WITH FOREIGN OBJECT
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction for penetration with a foreign object, in violation of California Penal Code 289(a)(1), does not categorically constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress alone, and without use of force).

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.")

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH INTENT TO COMMIT RAPE
United States v. Bolanos-Hernandez, 492 F.3d 1140 (9th Cir. Aug. 6, 2007) (California conviction of assault with intent to commit rape, in violation of Penal Code 220, 261(a)(2), is crime of violence under the federal sentencing guidelines).

SEXUAL BATTERY - CRIME OF VIOLENCE
United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (California conviction of sexual battery under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a "forcible" sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)); but see Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. Aug. 22, 2005) (sexual battery under California Penal Code § 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. § 16(b)).

CRIME OF VIOLENCE - SEXUAL BATTERY
Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. Aug. 22, 2005) (California conviction of sexual battery under California Penal Code § 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. § 16(b)); but see United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sexual battery under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a "forcible" sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)).

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Yanez-Rodriguez, 555 F.3d 931 (10th Cir. Feb. 10, 2009) (Kansas conviction for violation of Kan. Stat. Ann. 21-3517 (1988) ("unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another") is a "forcible sex offense" for illegal re-entry sentencing purposes, even though the statute does not require that the actor used force), disagreeing with United States v. Meraz-Enriquez, 442 F.3d 331 (5th Cir.2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. Oct. 16, 2007) (Colorado conviction for unlawful sexual contact, in violation of C.R.S. 18-3-404(1), is a crime of violence, as a "forcible sex offense" for illegal re-entry purposes; a sex offense is necessarily "forcible" when the victim does not consent).

Eleventh Circuit

ATTEMPTED LEWD ASSAULT - CRIME OF VIOLENCE
Ramsey v. INS, 55 F.3d 580 (11th Cir. June 21, 1995) (per curiam) (Florida conviction of attempted lewd assault, in violation of F.S.A. § 777.04(1), 800.04(1), was crime of violence under 18 U.S.C. § 16, and therefore aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of deportation).