Safe Havens

 

(A)  Elements of the Aggravated Felony Category.  The 1996 IIRAIRA added “sexual abuse of a minor” to the definition of aggravated felony.[726]  Note that there is no requirement that a one-year sentence be imposed in order for sexual abuse of a minor to be an aggravated felony.  This aggravated felony category therefore has the following elements:

 

            (1)  a conviction of an offense that is

            (2)  sexual (see § 7.97, infra)

            (3)  abuse (see § 7.98, infra)

            (4)  of a minor. See § 7.99, infra.

 

If any of these elements cannot be shown by clear and convincing evidence, the conviction cannot trigger deportability under this category.

 

          NOTE:  In researching cases on the definition of sexual abuse of a minor, counsel should look not only to cases dealing with the aggravated felony definition, [727] but also to cases that define “sexual abuse of a minor” as part of the definition of “crimes of violence” under the revised United States Sentencing Guidelines provision governing sentences for unlawful re-entry into the United States following a felony conviction.[728]  The definition of “crimes of violence” in that section of the Guidelines is not precisely the same as the definition of “crimes of violence” used for aggravated felony purposes.[729]  The Guidelines definition of crimes of violence lists specific offenses that are to be considered crimes of violence, including statutory rape and sexual abuse of a minor.[730]  While there may be arguments that the definition of sexual abuse of a minor as a “crime of violence” under the Guidelines should not control in cases involving the aggravated felony definition of sexual abuse of a minor, it is likely that courts will take the view that the definitions are identical.[731]  (The aggravated felony definition of sexual abuse of a minor, like other aggravated felonies, is interpreted by courts in two contexts: in immigration cases in which the question is whether a conviction constitutes an aggravated felony for purposes of triggering a ground of deportation,[732] and in illegal re-entry cases in which the question is whether a conviction constitutes an aggravated felony for purposes of triggering an increase in the statutory maximum sentence and a sentence enhancement.)[733]

(1)  Definition of the Category.  Decisions by the BIA and several circuit courts have defined aggravated felony sexual abuse of a minor.  In general, they reject the use of the federal statutory definition in criminal statute of “sexual abuse of a minor” as the definition of aggravated felony “sexual abuse of a minor,” and find that sexual abuse of a minor can occur even if the perpetrator does not touch the minor.  Other issues that arise include which actions should be held to constitute “abuse,” what effect the age of the minor has in the determination, the felony/misdemeanor distinction, sources for the definition of sexual abuse, and whether the categorical analysis will be strictly applied.  The following is a non-comprehensive summary of important cases from various courts.

            Board of Immigration Appeals.  In Matter of Rodriguez-Rodriguez, the BIA considered whether the offense of indecency by exposure to a minor under the age of 17 pursuant to a Texas statute was an aggravated felony as sexual abuse of a minor.  The elements of the offense did not require physical contact with the minor, but did include exposing genitals to a person under 17 with the intent to sexually gratify or arouse any person.[9]  A divided Board rejected the use of the federal statutory criminal offense definition of “sexual abuse of a minor,” which had a requirement that physical contact must occur.  It adopted as the standard a far broader definition of sexual abuse of a minor, found in a different non-criminal federal statute dealing with the rights of child victims and child witnesses.[734]  That definition included any sexually lascivious conduct with a child.  The Board also considered the seriousness of the offense as a factor in its determination, noting that there was a defense under the statute of conviction for someone whose age was within three years of the victim or did not use duress, and that the noncitizen had been sentenced to ten years in prison.

 

            In Matter of Small the Board found that a misdemeanor conviction could constitute the aggravated felony sexual abuse of a minor.[735]

 

            First Circuit.  In Emile v. INS, a noncitizen convicted of indecent assault and battery on a child under fourteen, in violation of Massachusetts law, was held to have been convicted of the aggravated felony of sexual abuse of a minor even though the statute did not require as an element intentional touching of a sexual nature.[736]  The court noted that the comparable federal “sexual abuse” statute does not require an intent to arouse, but rather it is enough to intend to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”[737]  Seeing “no evidence that anything much less or different would be required” under the state law, the court affirmed the finding, even though it also found that “it may be that there are some ‘touchings’ that would violate [the state law] that might not be ‘sexual contact’ under the federal statute, but the discrepancy does not appear to be very great.”[738]  Ultimately, the court improperly looked to the police reports in the case and found that, regardless of the elements of the statute of conviction, the defendant’s conduct clearly met the federal test for sexual abuse of a minor.  The last two findings were a radical departure from the rules governing a modified categorical analysis.  The United States Supreme Court, in Shepard v. United States,[739] overruled United States v. Harris,[740] and reversed United States v. Shepard. [741]  Therefore, Emile is no longer good law since the two cases on which it rests have been reversed or overruled by the United States Supreme Court, which expressly rejected the reasoning on which it relied.[742]

            Second Circuit.  In Mugalli v. Ashcroft, the Second Circuit held that in the absence of clear evidence of congressional intent as to the scope of sexual abuse of a minor, as the phrase was used in the statutory definition of aggravated felony, the administrative interpretation of the phrase reasonably included statutory rape, defined as sexual intercourse with a female under the age of 17.  The administrative definition was consonant with the generally understood broad meaning of the term “sexual abuse,” and was not restricted to the narrow language of the federal criminal statute.[743] 

 

            Third Circuit.  In Singh v. Ashcroft, [744] the Third Circuit found that a Delaware conviction of unlawful sexual contact in the third degree, penalizing “sexual contact with another person [with knowledge] that the contact is either offensive to the victim or occurs without the victim’s consent,”[745] does not constitute aggravated felony sexual abuse of a minor for purposes of triggering deportability.[746]

 

            Fifth Circuit. In United States v. Zavala-Sustaita,[747] the Fifth Circuit analyzed a conviction for indecent exposure, which punishes someone who “exposes his anus or any part of his genitals, knowing the child [under 17] is present, with intent to arouse or gratify the sexual desire of any person . . . .”[748] As the Board of Immigration Appeals did in Rodriguez-Rodriguez, the Fifth Circuit found that this offense constituted sexual abuse of a minor.  To determine whether the best ordinary, contemporary, and common reading of the phrase encompassed the Texas offense at issue, the court read each word of the phrase in isolation.  It noted dictionary definitions of “sexual” as “of, pertaining to, affecting, or characteristic of sex, the sexes, or the sex organs and their functions” and of “abuse” as, “inter alia, to use wrongly or improperly” or “to hurt or injure by maltreatment.”[749]  The court held that the Texas offense is “sexual” because it requires sexual arousal or gratification as its purpose, and that it is abusive because it requires exposure with knowledge of the child’s presence, therefore wrongly and improperly using and harming the minor.[750]

 

            Sixth Circuit.  In United States v. Gonzales-Vela, the court found that a conviction under a Kentucky statute for sexual contact with a person under the age of 14 was sexual abuse of a minor, although the conviction was a misdemeanor.[751]

            Seventh Circuit.  In Guerrero-Perez v. INS, the Seventh Circuit found in a summary fashion that an Illinois Class A misdemeanor conviction for criminal sexual abuse constitutes “sexual abuse of a minor.”[752]  That statute criminalizes “an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was less than 5 years older than the victim,”[753] and the complaint revealed that the defendant committed an act of sexual penetration with a girl fifteen years old, when he was nineteen years old.  It appears, however, that Guerrero-Perez did not argue that the crime did not constitute sexual abuse of a minor, but only argued that he could not be found to be an aggravated felon based on a misdemeanor conviction — an argument that the court rejected.  There is no holding, therefore, of the definition issue, since the court did not decide an issue that was not raised.[754]  In Lara-Ruiz v. INS, the Seventh Circuit found that if the state conviction falls within one of the listed federal statutes, it meets the common-sense definition of sexual abuse of a minor.[755]  This suggests that a conviction not falling within a federal criminal statute would not fall within this category.

 

            Eighth Circuit.  In Mendez-Morales v. INS, the court found that both the inclusion of the “sexual abuse of a minor” category in the aggravated felony statute, and the bar on a court taking petition for review jurisdiction over a case where the petitioner has been convicted of an aggravated felony, apply retroactively to the petitioner’s prior conviction for sexual assault of a minor.[756]

            Ninth Circuit.  In United States v. Baron-Medina, a seminal opinion often cited by other courts, the Ninth Circuit stated that it would define sexual abuse of a minor not by the definitions contained in the basic federal criminal statutes but “‘employing the ordinary, contemporary, and common meaning of the words that Congress used’ . . . .”[757]  It ruled that a conviction of committing a lewd act with a child under 14[758] constitutes aggravated felony sexual abuse of a minor, despite the fact that no touching is required under the statute.[759]  Using a categorical analysis, the court held that a conviction of violating this statute would be an aggravated felony if and only if the “full range of conduct” covered by it falls within the meaning of “sexual abuse of a minor.”  It noted that this offense could include even “innocent” appearing touching that was “innocently and warmly received” if it was effected with lewd intent.  The court held that a consensual sexual act with a child under the age of 14 was inherently abusive, and that Congress did not intend “the aggravated felony law to excuse an individual who preys upon a child too young to understand the nature of his advances . . . .  The use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order.”  The emphasis on the age of the child might support arguments that older teenagers, who are able to “understand the nature” of advances and who engage in consensual sexual activity, are not necessarily victims of “abuse.”  See § 7.101, infra.

            In United States v. Pereira-Salmeron, a case under the United States Sentencing Guidelines definition of “crime of violence,” the court cited Baron-Medina to hold that a Virgina statute prohibiting sexual intercourse or oral sex with a child under the age of 16 is sexual abuse of a minor.[760]  The subsection showed that the defendant was not a minor and was not close to the age of the victim. 

 

             In United States v. Granbois, another case decided under the Guidelines definition of “crime of violence,” the court stated that it was bound by Pereira-Salmeron to find that a conviction of “sexual contact” with a child under age 16 and at least four years younger than the perpetrator[761] is sexual abuse of a minor, even though it can involve behavior as minor as a 19-year old touching a 15-year-old’s thigh through her clothing.[762]  The holding in Granbois is troubling for at least two reasons.  First, the court did not discuss why a statute prohibiting sexual intercourse or oral sex should control in a case involving a statute that prohibited touching a thigh through clothing.  Second, Granbois did not discuss the prior Ninth Circuit decision in United States v. Pallares-Galan. [763]

 

            In United States v. Pallares-Galan, a case interpreting the aggravated felony definition of “sexual abuse of a minor,” the court found that not every act forbidden under California Penal Code § 647.6(a) (“annoying” or molesting a child), rises to the level of sexual abuse of a minor.  That statute could be violated by a wide range of acts even including, for example, an unsuccessful sexual proposition.  The court stated, “‘Abuse’ requires more than improper motivation; it requires conduct that is abusive.”[764]  In essence, it required some form or harm or injury to the child before an act would be held to constitute “abuse.”  This decision was published in February 2004, but was ignored in the Granbois decision decided several months later in July 2004.  The Granbois decision thus violated the rule that one circuit panel is not permitted to disagree with another on the same point absent changed circumstances not present here.  The Granbois decision also affirmed that a misdemeanor conviction can constitute an aggravated felony.[765]

            Eleventh Circuit.  In United States  v. Padilla-Reyes,[766] the Eleventh Circuit held that “the phrase ‘sexual abuse of a minor’ means a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.”

 

            Many questions are left unanswered, and criminal defense counsel should be careful to avoid a conviction in this type of case even where the elements do not satisfy the definition of sexual abuse of a minor, since the courts may improperly resort to the record of conviction (or stray even further), to establish the age of the victim.  The best option is an offense that does not contain an element of sexual intent and also does not necessarily bring other immigration consequences, such as being an aggravated felony as a crime of violence with a sentence imposed of a year or more, or as a crime involving moral turpitude.  In some states misdemeanor false imprisonment, straight battery, or attempting to persuade someone, without use of force, not to file a police report may be relatively clear of immigration consequences and close enough to the factual situation.  See § 7.101(E), infra.

 

[767] IIRAIRA § 322, amending INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

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

[727] USSG § 2L1.2 (2002).

[728] 18 U.S.C. § 16.

[729]  The United States Sentencing Guidelines have been amended twice since 2001.  In the most recent version, see 18 U.S.C. Appendix § 2L1.2 (2003),  Application Notes: Application of (b)(1):

(B) Definitions. For purposes of subsection (b)(1) . . .

            (E) (iii) “Crime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

[730]  See, e.g., United States v. Granbois, 376 F.3d 993 (9th Cir. 2004) (a USSG “crime of violence” case, stating that it is controlled in its definition of sexual abuse of a minor by United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (a USSG aggravated felony case); see also Valdez-Camacho v. Ashcroft, No. 01-71517 (9th Cir. 2004)(unpublished)(an aggravated felony case in immigration proceedings, stating that it is controlled by Granbois).

[731] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[732] 8 U.S.C. § 1326(b)(2).

[733] Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999).  Tex. Penal Code Ann. § 21.11(a) defines the offense as follows: “A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child; or  (2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.”  The conviction carries a sentence of from two to 10 years.  See also United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000) (holding this offense to be an aggravated felony under the United States Sentencing Guidelines).

[734] See 18 U.S.C. § 3509(a).

[735] Matter of Small, 23 I. & N. Dec. 448 (BIA 2002) (a misdemeanor conviction of violating New York Peanl Law § 130.61(2), prohibiting sexual contact with a person under the age of 14, is an aggravated felony).

[736] Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (analyzing Massachusetts General Laws Chapter 265 § 13B).

[737] 18 U.S.C. § 2246(3) (emphasis supplied).

[738] Emile v. INS, 244 F.3d 183, 188 (1st Cir. 2001).

[739] Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005).

[740] United States v. Harris, 964 F.2d 1234 (1st Cir. 1994).

[741] United States v. Shepard, 231 F.3d 56 (1st Cir. 2000).

[742] Thanks to Dan Kesselbrenner for this analysis.

[743] Mugalli v Ashcroft, 258 F.3d 52 (2d Cir. 2001) (conviction of violating New York Penal Law § 130.25-2 is sexual abuse of a minor for immigration purposes).

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

[745] Del. C. § 767.

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

[747] United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000).

[748] Texas Penal Code § 21.11(a)(2).

[749] Id. at 604.

[750] Ibid.  Thanks to Marianne C. Yang for this analysis.

[751] United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir., 2001).

[752] Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001).

[753] 720 ILCS 5/12-15(c).

[754] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

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

[756] Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997).

[757] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999); accord, Cedano-Viera v. Ashcroft, 2003 WL 1542642 (9th Cir. March 26, 2003) (unpublished) (Nevada conviction of lewd act on a child, in violation of Nevada Revised Statute § 201.230(1) (1996), constituted sexual abuse of a minor and was therefore an aggravated felony justifying removal 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).

[758] California Penal Code § 288(a).

[759] United States v. Baron-Medina, 187 F.3d at 1146.

[760] United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003) (Virginia conviction of violating Virginia Code § 18.2-63 is a crime of violence as sexual abuse of a minor).

[761]  18 U.S.C. § 2244(a)(3).

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

[763] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004)

[764] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004)

[765] See also United States. v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. 2005).

[766] United States v. Padilla-Reyes, 247 F.3d 1158, 1160 (11th Cir. 2001) (holding that a conviction of violating Florida Statute § 800.04 constitutes sexual abuse of a minor).