Safe Havens

 

(A)  Aggravated Felonies.

 

Sexual offenses may be considered aggravated felonies as rape, sexual abuse of a minor,[246] and as crimes of violence,[247] depending upon the elements of the conviction to which the noncitizen plead.[248]  The 1996 IIRAIRA added “sexual abuse of a minor” to the definition of aggravated felony.[249]  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.

 

United States Supreme Court:

 

Stogner v. California, 539 U.S. 607 (June 26, 2003) (California convictions of sex-related child abuse offenses under Penal Code § § 261 (rape), 286 (sodomy), 288 (lewd act against child under 14), 288a (oral copulation against minor or by force), 289 (forcible penetration), or 289.5 (interstate flight by sex offenders), where the victim was under 18 at the time of the offense, rendered after expiration of the statute of limitations, purportedly authorized by Penal Code § 803(g) (West Supp. 2003), violate the Ex Post Facto Clause of the Constitution).

 

Third Circuit:

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 victim’s consent,” does not constitute a 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:

 

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) (West 1999) (committed if “he has sexual intercourse with another person knowing that he does so without that person’s consent.”), did not qualify as a “crime of violence” under U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002), for purposes of 16-level enhancement of sentence for illegal re-entry).

 

United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000) (applying categorical approach, and definitions of “sexual” and “abuse” to determine whether offense is “sexual abuse of a minor” aggravated felony).

 

The Zavala Court refused to read the phrase “sexual abuse of a minor” narrowly, but in determining 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”.[250]  The Court held that the Texas offense fell within “sexual abuse of a minor”, finding that it is “sexual” because it requires sexual arousal or gratification as its purpose, and that it’s abusive because it requires exposure with knowledge of the child’s presence, and therefore wrongly and improperly using and harming the minor.[251]

 

Seventh Circuit:

 

Xiong v. INS, 173 F.3d 601 (7th Cir. Apr. 12, 1999) (conviction of “sexual contact or sexual intercourse with a person who has not attained the age of 16 years,” in violation of W.S.A. 948.02(2), was not “crime of violence,” and thus was not aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for deportation purposes, where conduct on which conviction was based consisted of consensual sex between 18-year-old boyfriend and his 15-year-old girlfriend).

Ninth Circuit:

 

United States v. Dhingra, 371 F.3d 557 (9th Cir. June 8, 2004) (18 U.S.C. § 2422(b), using internet to solicit sexual activity from minor, held not facially unconstitutional as overbroad, vague, or violative of First or Tenth Amendments, for incorporating state criminal sex offense statutes).

United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. February 20, 2004) (California Penal Code § 647.6(a), annoy or molest a child under 18, is a ‘divisible statute’, and does not constitute an aggravated felony “sexual abuse of a minor” offense).

District Courts:

 

United States v. Reve, 241 F.Supp.2d 470 (D.N.J. January 31, 2003) (New Jersey conviction of sexual assault, defined as committing an act of sexual penetration with a victim who is at least thirteen but less than sixteen years old and the actor is at least four years older than the victim, in violation of N.J.S.A. former § 2C:14-2(c)(5) (1995), recodified, N.J.S.A. § 2C:14-2(c)(4) (Supp.2002), did not constitute an aggravated felony under former 8 U.S.C. § 1101(a)(43)(F), in effect prior to IIRAIRA, for purposes of revocation of naturalization, because the offense did not have as an element using, attempting to use, or threatening to use force against the victim, as required by 18 U.S.C.. § 16(a), and government did not argue substantial risk under 18 U.S.C.. § 16(b)).

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

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

[248] See N. Tooby, Aggravated Felonies § § 5.13-5.15, Crimes of Violence, § 5.36, Murder, § 5.41, Rape, § § 5.45-5.48, Sexual Abuse of a Minor (2003).

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

[250] United States v. Zavala-Sustaita, 214 F.3d 601, at 604 (5th Cir. 2000).

[251] Id.