(C)  Substantial Risk.  Most cases that have examined whether a conviction involving sex and a minor triggers deportation as an aggravated felony crime of violence have turned on the issue of whether the offense involves a substantial risk that force will be used in the commission of the offense.  In the context of sex offenses involving minors, most courts assume that since a minor is not legally capable of consent, any sex offense automatically involves a substantial risk of force.  See § § 19.44-19.45, supra.

 

                In finding that a conviction, under an Oklahoma statute punishing any unconsented touching of the private parts of a person between 16 and 18 years old, was an aggravated felony crime of violence, the Fifth Circuit noted that:

 

Further, “[b]ecause the statute at issue here presupposes a lack of consent, it necessarily carries with it a risk of physical force.” [United States v. Rowland, 357 F.3d 1193, 1197 (10th Cir. 2004).]  By analogy, we believe that the risk that physical force will be used to complete the offense of sexual battery is substantial. See also Sutherland v. Reno, 228 F.3d 171, 176 (2nd Cir. 2000) (indecent assault and battery under Massachusetts law qualified as a crime of violence because “any violation of [the Massachusetts statute], by its nature, presents a substantial risk that force may be used to overcome the victim’s lack of consent and accomplish the indecent touching”) (emphasis in original). In holding that sexual battery through deception under Ohio law is a crime of violence, the Sixth Circuit expressed a similar view, noting that such an offense “carries with it the ever-present possibility that the victim may figure out what’s really going on and decide to resist, in turn requiring the perpetrator to resort to actual physical restraint.” See United States v. Mack, 53 F.3d 126, 128 (6th Cir. 1995). In all such cases, “the non-consent of the victim is the touchstone for determining” whether a given offense involves a substantial risk that physical force may be used in the commission of the offense. Sutherland, 228 F.3d at 177.[1029]

 

Other courts have come to the same conclusion.[1030]

 

                On the other hand, the Seventh and Ninth Circuits have found that the fact that the victim is a minor, and therefore cannot legally consent, does not mean that a 16- or 17-year-old cannot give meaningful actual consent.  In the context of statutory rape cases involving older teens, the Seventh and Ninth Circuits have held that the conviction does not necessarily involve a substantial risk of force.  See § 19.92, infra.

[1029] Zaidi v. Ashcroft, 374 F.3d 357, 361 (5th Cir. June 21, 2004).

[1030] See, e.g., Dos Santos v. Gonzalez, 440 F.3d 81 (2d Cir. Mar. 3, 2006) (Connecticut conviction of violating Connecticut General Statute, § 53-21(a)(2) is an aggravated felony crime of violence as defined by 18 U.S.C. § 16(b)); Patel v. Ashcroft, 401 F.3d 400, 410 (6th Cir. Mar. 8, 2005) (“Indeed, it requires no great investigation to determine that the crime for which Patel was convicted criminalizes sexual conduct ‘with a victim who is unable to give consent’ and, consequently, ‘the statute inherently involves a substantial risk that physical force may be used in the course of committing the offense.’”), quoting Chery v. Ashcroft, 347 F.3d 404, 408 (2d Cir. 2003).

Second Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - ENDANGERING THE WELFARE OF A CHILD
James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) (remanding to the BIA to decide whether New York misdemeanor conviction of endangering the welfare of a child, in violation of Penal Law 260.10 ["knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health"], is a divisible statute).

    This case leaves open, and remands to the BIA, the issue of whether a statute containing a single set of elements [or in this case two sets] that does not necessarily include aggravated felony conduct can be found to be "divisible" for purposes of applying the modified categorical analysis and making reference to the record of conviction. The law has been, of course, that a statute containing only one offense cannot be found divisible. Instead, the immigration authorities must apply the minimum conduct test when a statute contains only one set of elements that may be met by conduct that both falls within and outside of a ground of removal.

The Second Circuit stated:

"Up to this point," we observed recently in Dulal-Whiteway v. U.S. Department of Homeland Security, "we have explicitly found statutes divisible only where the removable and non-removable offenses they describe are listed in different subsections or comprise discrete elements of a disjunctive list of proscribed conduct"; "we have not explicitly queried whether this logic extends to a statute ... where only one type of generic conduct ... is proscribed, but an alien can commit the conduct both in ways that would render him removable ... and in ways that would not ...." 501 F.3d 116, 126-27 (2d Cir.2007) (emphasis added). The statute in Dulal-Whiteway (proscribing fraud to obtain things valuing over $1,000) is one such a statute. Id. at 126. The statute in this case is another. FN4 We further observed in Dulal-Whiteway that there are at least three ways of approaching such a statute -- none of which we have explicitly adopted or rejected. We could "find[ ] divisible only those statutes where the alternative means of committing a violation, some of which constitute removable conduct and some of which do not, are enumerated as discrete alternatives." Id. at 127 (emphasis added). Or we could "take the position that all statues of conviction may be considered divisible regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct." Id. at 128. And somewhere in the middle is a third approach, developed by the Third Circuit, under which a criminal statute may be considered divisible if either (1) the statute of conviction is phrased in the disjunctive or divided into subsections such that "some variations of the crime of conviction meet the aggravated-felony requisites and others do not," or (2) the relevant removability provision "invite[s] inquiry into the facts underlying the conviction at issue." Singh v. Ashcroft, 383 F.3d 144, 161, 162 (3d Cir.2004)).FN5 "Neither Supreme Court nor Second Circuit precedent," we concluded in Dulal-Whiteway, "compels a conclusion one way or the other." 501 F.3d at 127.FN6 And no case since Dulal-Whiteway has provided greater guidance as to how we would treat a statute like New York Penal Law section 260.10. Accordingly, the IJ and BIA based their decision on an incorrect premise.

Fifth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - INDECENCY WITH A CHILD
United States v. Najera-Najera, 519 F.3d 509 (5th Cir. Mar. 7, 2008) (Texas conviction for indecency with a child, in violation of Texas Penal Code 21.11(a)(1), constitutes a "crime of violence" for illegal re-entry sentencing purposes).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD AND LASIVIOUS BATTERY
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a) [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a crime of violence for illegal reentry sentencing purposes, since lack of consent is not an element of the crime; nor is the statute divisible, so the modified categorical analysis cannot be employed); United States v. Gomez"Mendez, 486 F.3d 599, 604 (9th Cir. 2007) (Florida conviction of lewd and lascivious battery, in violation of Fla. Stat. 800.04(4)(a) is a strict liability crime[,] criminalizing [e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age, ibid., regardless of whether the victim, in fact, consents); see United States v. Rangel"Castaneda, 709 F.3d 373, 376 (4th Cir.2013) (Tennessee conviction of sexual penetration ... when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim. did not categorically constitute a crime of violence as a forcible sex offense under the guidelines because the fact that Tennessee law renders the consent of a statutory rape victim formally irrelevant does not mean that the offense necessarily requires sexual conduct that is forcible ..."that is, involving actual compulsion.); The court reasoned: First, the absence of a consent defense to statutory rape is analytically distinct from situations in which a victim's consent ... is [deemed] not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The three examples cited by the Sentencing Commission, see supra at pp. 1054"55, involve instances in which the victim does not in fact have the state of mind of willing acquiescence"either because her consent is coerced, or because her actual state of mind is such that she is not capable of willingly consenting, as in the case of incompetence or intoxication. We have acknowledged, however, that the assumption that a minor's legal incapacity implies that the proscribed sexual intercourse is non-consensual does not always hold true[.] Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir.2006). Some minors are able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. Id. In other words, because statutory rape is a strict liability crime, the minor's actual state of mind does not matter, nor does the minor's actual capacity for mature deliberation. . The term statutory rape is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute. Gomez"Mendez, 486 F.3d at 603. If all sex offenses where consent ... is not legally valid on the basis of age are, by definition, forcible, there would be no need to separately enumerate statutory rape. See U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The same would be true of sexual abuse of a minor, whereby we define the term abuse ... in light of the age of the victim in question, United States v. Medina"Villa, 567 F.3d 507, 513 (9th Cir.2009), and have held that [s]exual conduct with younger children is per se abusive[,] Valencia"Barragan, 608 F.3d at 1107. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (citations and quotation marks omitted). This basic interpretive canon [,] id., applies to the Sentencing Guidelines. See United States v. Wenner, 351 F.3d 969, 974"75 (9th Cir.2003). Yet, when asked at argument, the government could identify no circumstance in which a statutory rape would not also be a forcible sex offense under its interpretation. Nor can we. It is our duty to give effect, if possible, to every clause and word of a statute. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations and quotation marks omitted). We are reluctan[t] to treat ... as surplusage, id., the Guidelines' enumeration of statutory rape and sexual abuse of a minor as separate crimes of violence. Third, deeming as forcible sex offenses all sexual acts with persons under the age of majority would ignore contemporary limitations on the concept of statutory rape. In particular, there has been a move among the states to reform statutory rape laws in cases involving partners of a similar age"for instance, foreclosing prosecutions of 16"year"olds for heavy petting with 14"year"olds, or reducing sentences of 19"year"olds for sexual intercourse with 17"year"olds. See, e.g., Charles A. Phipps, Misdirected Reform: On Regulating Consensual Sexual Activity Between Teenagers, 12 Cornell J.L. & Pub. Pol'y 373, 390"91 (2003). In recognition of this growing consensus, we have held that, for federal purposes, an age difference of at least four years is an element of sexual abuse of a minor, Estrada"Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir.2008) (en banc), and of statutory rape as well, United States v. Gomez, 732 F.3d 971, 988"89 (9th Cir.2013). Reading the term forcible sex offenses"which requires no age difference"to encompass all sexual conduct with minors, would obliterate those limitations. A so-called Romeo"and"Juliet offender[,] Doe v. Mich. Dep't of State Police, 490 F.3d 491, 503 (6th Cir.2007), could be deemed to have been convicted of a forcible sex offense by virtue of the victim's age, despite being expressly and intentionally excluded from the generic federal definitions of statutory rape and sexual abuse of a minor. (Ibid. at 1055-1056.)

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD CONDUCT
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a), [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a forcible sex offense, and thus cannot be a crime of violence as defined under the federal sentencing guidelines).

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD AND LASIVIOUS BATTERY
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a) [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a crime of violence for illegal reentry sentencing purposes, since lack of consent is not an element of the crime; nor is the statute divisible, so the modified categorical analysis cannot be employed); United States v. Gomez"Mendez, 486 F.3d 599, 604 (9th Cir. 2007) (Florida conviction of lewd and lascivious battery, in violation of Fla. Stat. 800.04(4)(a) is a strict liability crime[,] criminalizing [e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age, ibid., regardless of whether the victim, in fact, consents); see United States v. Rangel"Castaneda, 709 F.3d 373, 376 (4th Cir.2013) (Tennessee conviction of sexual penetration ... when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim. did not categorically constitute a crime of violence as a forcible sex offense under the guidelines because the fact that Tennessee law renders the consent of a statutory rape victim formally irrelevant does not mean that the offense necessarily requires sexual conduct that is forcible ..."that is, involving actual compulsion.); The court reasoned: First, the absence of a consent defense to statutory rape is analytically distinct from situations in which a victim's consent ... is [deemed] not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The three examples cited by the Sentencing Commission, see supra at pp. 1054"55, involve instances in which the victim does not in fact have the state of mind of willing acquiescence"either because her consent is coerced, or because her actual state of mind is such that she is not capable of willingly consenting, as in the case of incompetence or intoxication. We have acknowledged, however, that the assumption that a minor's legal incapacity implies that the proscribed sexual intercourse is non-consensual does not always hold true[.] Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir.2006). Some minors are able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. Id. In other words, because statutory rape is a strict liability crime, the minor's actual state of mind does not matter, nor does the minor's actual capacity for mature deliberation. . The term statutory rape is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute. Gomez"Mendez, 486 F.3d at 603. If all sex offenses where consent ... is not legally valid on the basis of age are, by definition, forcible, there would be no need to separately enumerate statutory rape. See U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The same would be true of sexual abuse of a minor, whereby we define the term abuse ... in light of the age of the victim in question, United States v. Medina"Villa, 567 F.3d 507, 513 (9th Cir.2009), and have held that [s]exual conduct with younger children is per se abusive[,] Valencia"Barragan, 608 F.3d at 1107. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (citations and quotation marks omitted). This basic interpretive canon [,] id., applies to the Sentencing Guidelines. See United States v. Wenner, 351 F.3d 969, 974"75 (9th Cir.2003). Yet, when asked at argument, the government could identify no circumstance in which a statutory rape would not also be a forcible sex offense under its interpretation. Nor can we. It is our duty to give effect, if possible, to every clause and word of a statute. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations and quotation marks omitted). We are reluctan[t] to treat ... as surplusage, id., the Guidelines' enumeration of statutory rape and sexual abuse of a minor as separate crimes of violence. Third, deeming as forcible sex offenses all sexual acts with persons under the age of majority would ignore contemporary limitations on the concept of statutory rape. In particular, there has been a move among the states to reform statutory rape laws in cases involving partners of a similar age"for instance, foreclosing prosecutions of 16"year"olds for heavy petting with 14"year"olds, or reducing sentences of 19"year"olds for sexual intercourse with 17"year"olds. See, e.g., Charles A. Phipps, Misdirected Reform: On Regulating Consensual Sexual Activity Between Teenagers, 12 Cornell J.L. & Pub. Pol'y 373, 390"91 (2003). In recognition of this growing consensus, we have held that, for federal purposes, an age difference of at least four years is an element of sexual abuse of a minor, Estrada"Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir.2008) (en banc), and of statutory rape as well, United States v. Gomez, 732 F.3d 971, 988"89 (9th Cir.2013). Reading the term forcible sex offenses"which requires no age difference"to encompass all sexual conduct with minors, would obliterate those limitations. A so-called Romeo"and"Juliet offender[,] Doe v. Mich. Dep't of State Police, 490 F.3d 491, 503 (6th Cir.2007), could be deemed to have been convicted of a forcible sex offense by virtue of the victim's age, despite being expressly and intentionally excluded from the generic federal definitions of statutory rape and sexual abuse of a minor. (Ibid. at 1055-1056.)

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD ACT WITH 15-YEAR-OLD
Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. Oct. 22, 2013) (California conviction for lewd and lascivious acts upon a 15-year-old girl when the actor is at least ten years older, under Penal Code 288(c)(1), is a categorical crime of violence and therefore an aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because this offense, in the ordinary case, poses a substantial risk of the use of physical force under 18 U.S.C. 16(b)). Note: Although not a positive case, the discussion does carefully address prior Ninth Circuit case law and has some very useful analysis distinguishing 18 U.S.C. 16(b), substantial risk analysis from the minimum-conduct analysis required for other portions of the Act, including Sexual Abuse of a Minor, Child Abuse, Domestic Violence, and 18 U.S.C. 16(a). Thanks to Joseph Justin Rollin.

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE
United States v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. Jun. 7, 2007) (Oregon conviction of sexual abuse in the second degree, in violation of Oregon Revised Statute 163.425, did not qualify as a "crime of violence," for purposes of 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), of his sentence for illegal reentry after deportation both because the state statute does not make force - be it used, attempted, or threatened - an element of the crime, and because the crime does not constitute a "forcible sex offense" within the meaning of the applicable guideline).