Safe Havens

(C)  As “Sexual Abuse of a Minor.”  The next question is whether this offense constitutes an aggravated felony under the theory that it is “sexual abuse of a minor,” which would then be an aggravated felony regardless of the sentence imposed.[845]  If the child is 15 or younger, the courts are extremely likely to conclude that any consent has no meaning, and the contact is therefore equivalent to battery, in this case, sexual battery, and therefore clearly constitutes aggravated felony sexual abuse of a minor.

Due to the expansive definition employed by the BIA and circuit courts,[846] it is highly likely that a conviction for statutory rape will be found to constitute sexual abuse of a minor.  See § § 7.96 -7.99, supra.  If a federal statute is used as a guide, the federal offense “sexual abuse of a minor” is essentially a statutory rape offense, prohibiting consensual sex when the victim is age 12-16 and the perpetrator is at least four years older.  See § 7.96(G), supra.[847]  If this offense is considered to fall within the definition of aggravated felony sexual abuse of a minor, it is imperative to avoid a felony conviction, whatever the sentence, of this offense.  See § 7.101(E), infra, for suggestions on alternative dispositions.

If the sexual partner is age 16 or older, however, arguments are available that this does not and should not constitute sexual abuse of a minor.  See § 7.101(D), infra.

This offense may also be considered a crime of moral turpitude, see § 8.85, infra, or a crime of child abuse within the domestic violence ground of deportation.  See § 7.157, infra.

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

[846] In United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999), the Ninth Circuit held that an offense under Calif. Penal Code § 288(a) – lewd act with child under 14 – was sexual abuse of a minor, even though it might involve merely sexual intent with “innocent” contact or no contact between the parties.  In Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999), the BIA held that indecent exposure with no physical contact is sexual abuse of a minor.

[847] The BIA might use the federal statute in this case, which is entitled “Sexual Abuse of a Minor.”  See, e.g., Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999) (using federal statute “Obstruction of Justice” as a definition of the term “obstruction of justice” in the aggravated felony definition); K. BRADY, California Criminal Law And Immigration, § 9.13 (2004).