Noncitizens charged with statutory rape or unlawful sexual intercourse with a minor are in grave danger of being classed as aggravated felons and must proceed very carefully.  Statutory rape is broadly defined in many states, including California, where the statute prohibits unlawful consensual sex with any person under the age of 18, even if the sexual partner is also under the age of 18.  The exact elements of the offense, however, vary from state to state and may have a great impact on whether a conviction of this offense is considered to be aggravated felony.

 

This offense may be considered an aggravated felony under any of several categories.  Because of this, even if a court finds statutory rape not to fall within one category, the DHS can merely charge the offense as an aggravated felony under another. 

AGGRAVATED FELONY - STATUTORY RAPE
United States v. Munoz-Ortenza, __ F.3d __, 2009 WL 693146 (5th Cir. Mar. 18, 2009) (California conviction for oral copulation of a minor, in violation of Penal Code 288a(b)(1), was not necessarily "sexual abuse of a minor," and thus not a "crime of violence" for illegal re-entry sentencing purposes, since the offense may be committed against a person under 18, while the minor must be under 16 to qualify as "sexual abuse of a minor."), following United States v. Lopez-DeLeon, 513 F.3d 472 (5th Cir.), cert. denied, __ U.S. __, 128 S.Ct. 2916, 171 L.Ed.2d 851 (2008) (California conviction for unlawful sex with a minor, in violation of Penal Code 261.5(c), is not necessarily "sexual abuse of a minor" as the statute punishes sex with a person 18 years and under).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE CD4:24.29;AF:2.45;CMT3:3.44 RELIEF - INA 212(h) WAIVER - VIOLENT CRIMES
United States v. Christensen, 559 F.3d 1092 (9th Cir. Mar. 23, 2009) (Washington state conviction of statutory rape, in violation of Washington Revised Code 9A.44.079, did not constitute a "violent felony," so as to justify a sentence enhancement from 10 to 15 years for being a felon in possession of ammunition in violation of 18 U.S.C. 922(g)(1) and 924, under the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), because that offense may involve consensual sexual intercourse).

First Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - INDECENT ASSAULT AND BATTERY ON MINOR AGED 14
Ramirez v. Mukasey, 520 F.3d 47 (1st Cir. Mar. 14, 2008) (Massachusetts conviction of indecent assault on person aged 14, in violation of M.G.L.A. c. 265, 13H, is an aggravated felony crime of violence; although the statute may be violated by a merely offensive touching, the statute requires a showing of lack of consent, and therefore commission of the crime involves a substantial risk that violence will be used).

Fourth Circuit

AGGRAVATED FELONY " STATUTORY RAPE
United States v. Rangel-Cataneda, __ F.3d __, No. 12-4408 (4th Cir. Mar. 7, 2013) (Tennessee aggravated statutory rape conviction under Tenn. Code Ann. 39-13-506(c) is not categorically a crime of violence for illegal re-entry purposes, because Tennessee sets the age of consent at eighteen).

Fifth Circuit

AGGRAVATED FELONY"CRIME OF VIOLENCE"SEXUAL ACTIVITY WITH A MINOR
United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. Feb. 13, 2012) (Florida conviction for sexual activity with a minor, in violation of Florida Statute 794.05, was not a crime of violence for illegal re-entry sentencing purposes, because state statute applied to 17-year-olds; defense counsel's admission at sentence that victim was 14 years of age established victim's status as a minor under the federal standard).

AGGRAVATED FELONY " STATUTORY RAPE
United States v. Sanchez, 667 F.3d 555 (5th Cir. Jan. 10, 2012) (Texas conviction of completed sexual assault of a child, in violation of Texas Penal Code 22.011(a)(2) and (c)(1), and 15.01(a), constituted a crime of violence, within the meaning of U.S.S.G. 2L1.2(b)(1)(A), for illegal reentry sentencing purposes, rejecting argument it is not a crime of violence because the relevant Texas statute, Texas Penal Code 22.011, defines child as a person younger than 17 years of age, whereas the majority of jurisdictions in the United States set the age of consent for sexual activity at sixteen); following United States v. Alvarado"Hernandez, 465 F.3d 188, 189 (5th Cir.2006) (Texas conviction under Texas Penal Code section 22.011(a)(2) meets a common sense definition of statutory rape even though the statute defines child as a person younger than the age of seventeen for purposes of its proscription on consensual sexual intercourse with a child); see also United States v. Castro"Guevarra, 575 F.3d 550, 552 (5th Cir. 2009) (the crime of sexual assault of a child under Tex. Penal Code 22.011(a)(2) falls within the guideline enhancement as sexual abuse of a minor.).

AGGRAVATED FELONY " ATTEMPTED SEXUAL ASSAULT OF A CHILD " CRIME OF VIOLENCE
United States v. Sanchez, 667 F.3d 555 (5th Cir. Jan. 10, 2012) (Texas conviction of completed sexual assault of a child, in violation of Texas Penal Code 22.011(a)(2) and (c)(1), and 15.01(a), constituted a crime of violence, within the meaning of U.S.S.G. 2L1.2(b)(1)(A), for illegal reentry sentencing purposes, rejecting argument it is not a crime of violence because the relevant Texas statute, Texas Penal Code 22.011, defines child as a person younger than 17 years of age, whereas the majority of jurisdictions in the United States set the age of consent for sexual activity at sixteen); following United States v. Alvarado"Hernandez, 465 F.3d 188, 189 (5th Cir.2006) (Texas conviction under Texas Penal Code section 22.011(a)(2) meets a common sense definition of statutory rape even though the statute defines child as a person younger than the age of seventeen for purposes of its proscription on consensual sexual intercourse with a child); see also United States v. Castro"Guevarra, 575 F.3d 550, 552 (5th Cir. 2009) (the crime of sexual assault of a child under Tex. Penal Code 22.011(a)(2) falls within the guideline enhancement as sexual abuse of a minor.).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL ASSAULT OF A CHILD
United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir. Jul. 13, 2009) (Texas conviction for sexual assault of a child younger than 17 years of age, in violation of Penal Code 22.011(a)(2)(A), (c)(1), constituted a conviction for sexual abuse of a minor, and thus a crime of violence for illegal re-entry sentencing purposes); accord, United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006) (Tex. Penal Code 22.011(a)(2) falls within the U.S.S.G. 2L1.2(b)(1)(A)(ii) enhancement as the enumerated offense of sexual abuse of a minor); United States v. Ayala, 542 F.3d 494 (5th Cir. 2008) (Texas conviction of indecency with a "child" in which a "child" is under 17 years old constitutes sexual abuse of a minor under U.S.S.G 2L1.2 cmt. n.1(B)(iii)); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000); United States v. Najera-Najera, 519 F.3d 509, 511 (5th Cir. 2008).

AGGRAVATED FELONY - STATUTORY RAPE
United States v. Ayala, 542 F.3d 494 (5th Cir. Sept. 8, 2008) (Texas conviction for indecency with a child in violation of Texas Penal Code 21.11(a)(1), is sexual abuse of a minor, even though the statute punishes sex with a person that is one day shy of 18 years old), following United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
United States v. Lopez-DeLeon, __ F.3d __, 2008 WL 82521 (5th Cir. Jan. 9, 2008) (California conviction for sexual intercourse with a minor, in violation of Penal Code 261.5(c) is sexual abuse of a minor for illegal re-entry sentencing purposes, even though statute is over-broad as it includes sex with a minor over 16 years old, where record of conviction showed that victim was, in fact, 14 years old).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Lopez-DeLeon, 513 F.3d 472 (5th Cir. Jan. 9, 2008) (California conviction of statutory rape, under Penal Code 261.5(c), was sexual abuse of a minor for illegal re-entry sentencing purposes, even though conviction statute was overbroad, where dismissed charge indicated that the victim was 14 years old).

This is a bad decision. Not only does the court here look at the underlying facts of the conviction, rather than the minimum conduct punishable under the statute, the court also looks to information from a dismissed count (Penal Code 288(a), lewd act with a person under 14) to make its determination that the offense was Sexual Abuse of a Minor. This is a guidelines case. The defendant's sentence was not enhanced for having an aggravated felony conviction as defined in INA 101(a)(43)(A), but rather for fitting under the following definition in the application notes to the sentencing guidelines. The illegal reentry sentencing guideline provides for two "crime of violence" enhancements. They are different from the immigration aggravated felony definition, and this case may not apply to the immigration context.

This case was wrongly decided, and may be damaging for immigration purposes, since the same reasoning can be applied in the aggravated felony immigration context. There does not appear to be any difference between the definition of Sexual Abuse of a Minor for aggravated felony as opposed to sentencing purposes (BIA deference notwithstanding), and the Fifth Circuit was purportedly applying Shepard and the categorical analysis.

Eighth Circuit

AGGRAVATED FELONY " CRIMES OF VIOLENCE " STATUTORY RAPE
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree sexual assault, in violation of Ark.Code Ann. 5"14"125(a) (2002), is categorically a crime of violence for purposes of the Armed Career Criminals Act, since the elements of the statute necessarily involve either a use of force or substantial risk that force will be used).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " STATUTORY RAPE
United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. Jan. 17, 2013) (Washington conviction for third-degree rape, in violation of RCW 9A.44.060(1)(a), qualified as a "forcible sex offense" supporting a 16-level crime-of-violence enhancement under the Sentencing Guidelines, U.S.S.G. 2L1.2(b)(1)(A)). Note: RCW 9A.44.060(1)(A) punishes any rape that does not constitute first or second degree rape. The statute does not contain any further elements. Without conducting any analysis of Washington case law to determine whether any judicially identified elements exist, and thus whether the statute could be considered divisible, the Court found it could skip the categorical analysis, and apply directly the modified categorical analysis. This allowed the court to conclude the offense was a forcible sex offense which includes any non-consensual sexual intercourse, because the factual basis specified that no consent had been given. The court did not cite Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " SENTENCE " RAPE OF A CHILD QUALIFIES AS STATUTORY RAPE AN ENUMERATED CRIME OF VIOLENCE UNDER THE GUIDELINES
United States v. Zamorano-Ponce, 699 F.3d 1117 (9th Cir. Nov. 6, 2012) (Washington conviction of "rape of a child in the third degree," in violation of the Revised Code of Washington 9A.44.079, categorically qualifies as "statutory rape," which is enumerated as a crime of violence for the purposes of a 16-level sentencing enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) for the crime of illegal reentry after deportation; statutory rape for this purpose includes, at least, unlawful sexual intercourse with a person under the age of 16 where the actor is four years older than the victim).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MODIFIED CATEGORICAL APPROACH
United States v. Gonzalez-Aparicio, ___ F.3d ___, 2011 WL 2207322 (9th Cir. Jun. 8, 2011) (Arizona conviction for sexual conduct with a minor, in violation of Arizona Revised Statutes 13"1405, constituted an enumerated crime of violence offense (statuory rape) for illegal re-entry sentencing purposes, under the modified categorical approach). NOTE This decision notes tension between statutory rape/sexual abuse of a minor cases in the sentencing and immigration contexts.

AGGRAVATED FELONY - STATUTORY RAPE
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 "statutory rape," and therefore did not qualify as a crime of violence for illegal re-entry sentencing purposes, since the term "lewd acts" includes acts not included in 18 U.S.C. 2243, defining "sexual act" for purposes of defining "statutory rape"), following Estrada-Espinosa v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

AGGRAVATED FELONY - STATUTORY RAPE - ELEMENTS
United States v. Medina-Villa, 570 F.3d 213 (9th Cir. June 23, 2009) ("sexual abuse of a minor" is defined by reference to 18 U.S.C. 2243 in the context of a conviction for statutory rape, but not in other contexts of "sexual abuse of a minor.")

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - UNLAWFUL SEX WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of unlawful sex with a minor more than three years younger, in violation of Penal Code 261.5(c), is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL SODOMY WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual sodomy with a person under 18 years old, in violation of Penal Code 286(b)(1), is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL ORAL COPULATION WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual oral copulation with a person under 18 years old, in violation of Penal Code 288a(b)(1), is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL SEXUAL PENETRATION BY A FOREIGN OBJECT OF A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual sexual penetration by a foreign object of a person 14 years old, but under 18, in violation of Penal Code 289(h), is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE
United States v. Rodriguez-Guzman, __ F.3d __, 2007 WL 3052987 (9th Cir. Oct. 22, 2007) (California conviction for unlawful sex with a minor under the age of eighteen, in violation of Penal Code 261.5(c), is not categorically a "crime of violence" for illegal re-entry sentencing purposes, since the conviction is overly-inclusive; defining "minor," by reference to federal law, as a person under the age of 16 years old).

The court looked to BLACKS LAW DICTIONARY to define "statutory rape" as unlawful sex with a minor who under the age of consent, and to define "age of consent" as the age at which a person may consent to marry or have sexual intercourse without parental consent. The court noted that the majority of states define 16 years of age as the age of consent for these purposes, and then applied the "common, ordinary meaning" (i.e., the majority meaning), to find 16 years of age to be the appropriate age of consent for federal sentencing purposes.

The court distinguished this case from cases in the aggravated felony "sexual abuse of a minor" immigration context, Estrada-Espinoza, __ F .3d __ (9th Cir. Aug. 16, 2007); Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006), on the basis that the court owes deference to the BIA interpretation of "minor" in the immigration, but not the sentencing context.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
Estrada-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 2325138 (9th Cir. Aug. 16, 2007) (per curiam) (California conviction of unlawful sex with a minor, or statutory rape, under Penal Code 261.5(c), constitutes "sexual abuse of a minor" within the meaning of INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A)), following Afridi v. Gonzales, 442 F.3d 1212, 1217 (9th Cir.2006) (quoting Matter of Rodriguez-Rodriguez, 22 I & N Dec. 991, 991, 995 (BIA 1999)), as binding precedent.

Note: Two of the three judges in this panel decision suggested strongly that this case, and Afridi should be reconsidered en banc, in favor of the reasoning applied in the Ninth Circuits decision in United States v. Lopez-Solis, 447 F.3d 1201, 1207 (9th Cir.2006) (Tennessee statutory rape is not aggravated felony sexual abuse of a minor for sentencing purposes). The court did not address the possible argument that Lopez-Solis should control as precedent.

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).

AGGRAVATED FELONY - CRIME OF VIOLENCE - STATUTORY RAPE
United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir. May 14, 2007) (California conviction for unlawful sexual intercourse with a minor by a person twenty-one years of age or older, in violation of Cal.Penal Code 261.5(d), qualifies as a "crime of violence" for illegal re-entry sentencing purposes, since U.S.S.G. 2L1.2 cmt. n. 1(B)(iii) explicitly includes "statutory rape" as an enumerated crime of violence).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
The Ninth Circuit ordered that Estrada-Espinoza v. Mukasey, 498 F.3d 933 (9th Cir. 2007), be reheard en banc. In this case, a panel of the Ninth Circuit found that a statutory rape conviction constituted an aggravated felony (sexual abuse of a minor). The court noted that it was bound by a prior panel decision, Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2002). In its May 6, 2008 order granting rehearing en banc, the court said, "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." The court heard argument on June 25, 2008. Two amicus briefs, including one by AILA, were submitted in support of the petition for rehearing en banc. The petition for rehearing, the amicus briefs, and the governments opposition are available on the Ninth Circuits website at http://www.ca9.uscourts.gov/ca9/Documents.nsf/174376a6245fda7888256ce5007d5470/a59aac6c107bc187882572c2005d1b26/$FILE/05-75850pfr.pdf

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE - REHEARING ESTRADA-ESPINOZA EN BANC
The Ninth Circuit ordered that Estrada-Espinoza v. Mukasey, 498 F.3d 933 (9th Cir. 2007), be reheard en banc. The petition for rehearing, the amicus briefs, and the governments opposition are available on the Ninth Circuits website at http://www.ca9.uscourts.gov/ca9/Documents.nsf/174376a6245fda7888256ce5007d5470/a59aac6c107bc187882572c2005d1b26/$FILE/05-75850pfr.pdf

Other

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " STATUTORY RAPE
United States v. Vidal-Mendoza, ___ F.Supp.3d ___, 2011 WL 1560987 (D.Or. Apr. 25, 2011) (Oregon conviction of rape in the third degree, under Or. Rev. Statute 163.355 [sexual intercourse with another person under 16 years of age.], held not categorically an aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because the Oregon statute allows for a conviction if the person has sexual intercourse with another person under 16 years of age, O.R.S. 163.355(1), which is broader than the elements of sexual abuse of a minor as defined in federal criminal law at 18 U.S.C. 2243: Because O.R.S. 163.355 does not require a four year age difference between the defendant and the minor, it is broader than the generic offense of sexual abuse of a minor and, therefore, is not categorically an aggravated felony under [8 U.S.C.] 1101(a)(43)(A).); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir. 2008).