Criminal Defense of Immigrants

(B)  Sexual Abuse of a Minor.  The DHS sometimes takes the position that it is free to resort to the record of conviction, even where the statute of conviction is not divisible with respect to the age of the victim, to prove that the victim is a minor and bring the conviction within the sexual abuse of a minor aggravated felony category.  There are no holdings that support this view.  See § 16.7(A), supra.  As discussed above, the Third Circuit in Singh v. Ashcroft[99] held that the strict categorical analysis required by Taylor did apply to the question whether the Delaware conviction of unlawful sexual contact in the third degree constituted a sexual abuse of a minor aggravated felony.  While Singh contains dictum inquiring when it might be proper to go beyond the categorical analysis, it held that it was not proper to do so in sexual abuse of a minor cases, because (a) the Delaware statute had no element of age, and (b) the sexual abuse of a minor category was similar to the “crime of violence” and burglary categories that had clearly been held to require the traditional categorical analysis.  Many states define criminal offenses that specifically require, as an element, that the victim be a minor of a certain age.  The Delaware offense under consideration did not.

                The other sexual abuse of a minor case, Gattem v. Gonzales,[100] held that soliciting a minor to commit a sex act fell within the definition of sexual abuse of a minor, but did not decide whether to abandon the categorical analysis, because the issue was not presented since the respondent admitted in that case that the victim was a minor.  See § 16.7(A)(5), supra.

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

[100] Gattem v. Gonzales, 412 F.3d 758 (7th Cir. June 20, 2005).