Criminal Defense of Immigrants
§ 19.89 2. Abuse Element
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The sexual abuse of a minor category clearly requires that the offense have an element of “abuse.” The federal definition adopted by the BIA as a guide is very broad, apparently even including consensual intercourse with a person just one day short of 18 years old. See § 19.87(B), supra. Other courts have defined abuse as “to use wrongly or improperly,” to “misuse . . . to use or treat so as to injure, hurt, or damage . . . to commit indecent assault on . . . the act of violating sexually . . [and] rape or indecent assault not amounting to rape,” to “take unfair or undue advantage of” or “to use or treat so as to injure, hurt, or damage.”
 See Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. July 10, 2001).
 United States v. Londono-Quintero, 289 F.3d 147, 153 (1st Cir. May 6, 2002), quoting Random House Webster’s Unabridged Dictionary, 9 (2d Ed. 1987).
 United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir. 2004), quoting Webster’s Third New International Dictionary 8 (3d Ed.1981).
 United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. Mar. 31, 2005), quoting Webster’s Third New International Dictionary 8 (1986).
AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD ENDANGERMENT
Campbell v. Holder, 698 F.3d 29, *31 (1st Cir. Oct. 19, 2012) (Connecticut conviction of risk of injury to a minor under of the Connecticut General Statutes 53"21(a)(1) (penalizing [a]ny person who ... wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child...], does not categorically constitute aggravated felony sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the statute includes non-sexual acts such as providing alcohol to a minor).
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF A CHILD
United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. Apr. 2, 2007) (Kansas conviction for violation of K.S.A. 21-3510(a)(1), solicitation of a child to perform an illegal sex act is "sexual abuse of a minor" and thus a "crime of violence" for illegal re-entry sentencing purposes, on the basis that the act "is abusive because of the psychological harm it can cause, even if any resulting sex is consensual").
AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11(a)(1) not categorically sexual abuse of a minor for illegal re-entry sentencing purposes; "Subsection (a)(1), then, prohibits consensual sexual contact between two persons who are a day under 17, and of the same gender. This does not fit the ordinary, contemporary, common meaning of sexual abuse of a minor.")
AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11, is sexual abuse of a minor for illegal re-entry sentencing purposes where indictment indicated that minor was under the age of seventeen and the defendant was at least 8 years older).
AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD MOLESTATION
United States v. Martinez, ___ F.3d ___, ___, 2015 WL 3406178 (9th Cir. May 28, 2015) (Washington conviction of third-degree child molestation, in violation of Wash. Rev.Code 9A.44.089, is categorically not an aggravated felony sexual abuse of a minor offense, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the offense is not divisible and includes touching over clothing; sexual abuse of a minor requires skin on skin contact); see State v. Soonalole, 992 P.2d 541, 544 & n.13 (Wash.Ct.App.2000) (holding that the fondling and thigh rubbing over the victim's clothes constituted a separate act of third-degree child molestation under state criminal law for double jeopardy purposes); see also United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as amended (holding that a California statute prohibiting lewd and lascivious acts on a child, under Penal Code 288(a), was categorically broader than the generic definition for sexual abuse of a minor because [l]ewd touching [under the state statute] can occur through a victim's clothing and can involve any part of the victim's body).
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL CONTACT
Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. May 20, 2010) (Arizona conviction for violation of ARS 14-1405, sexual conduct with a minor under 18, is not categorically an aggravated felony for immigration purposes, since it does not meet the generic federal definition of "sexual abuse of a minor"), following Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009).
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Castro, 599 F.3d 1050 (9th Cir. Mar. 26, 2010) (California conviction for lewd acts with a child 14-15 years of age, under California Penal Code 288(c)(1), did not categorically constitute a "sexual abuse of a minor," and therefore did not qualify as a crime of violence for illegal re-entry sentencing purposes, since sexual conduct with a 15 year old is not per se abusive), following Pelayo-Garcia v. Holder, 589 F.3d 1010, 1015-16 (9th Cir. 2009).
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) ("a conviction which constitutes 'sexual abuse of a minor' must necessarily contain an element of abuse. We have previously construed the word 'abuse' as physical or nonphysical misuse or maltreatment' or use or treat[ment] so as to injure, hurt, or damage.") (internal quotation marks omitted), quoting United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir. 2006) (quoting United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001); see also United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir. 2004)).
POST CON RELIEF - FEDERAL - AEDPA STATUTE OF LIMITATIONS - STATE CONVICTIONS
Allen v. Siebert, 128 S.Ct. 2 (9th Cir. Nov. 5, 2007) (when a postconviction petition is untimely under state law, "that [is] the end of the matter" for purposes of tolling the AEDPA's 1-year statute of limitations for filing a federal habeas petition, and the inquiry does not turn on the nature of the particular time limit relied upon by the state court at issue).
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - PUBLIC INDECENCY TO CHILD
Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS 13-1001 and 13-1403(B), includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U); statute includes acts that do not involve touching or knowledge of the child, and therefore do not involve sexual abuse of a minor). Note: the court examined Arizona state caselaw, applying Duenas.
AGGRAVATED FELONY SEXUAL ABUSE OF A MINOR DEFINITION OF SEXUAL ABUSE
United States v. Sinerius, __ F.3d __, 2007 WL 2728760 (9th Cir. Sept. 20, 2007) (sexual abuse is defined by the common meaning of the terms, rather than by reference to a federal statute, therefore sexual abuse includes intimate touching through clothing, even though federal law requires skin-on-skin contact).