(C)  As “Sexual Abuse of a Minor.”  Due to the expansive definition employed by the BIA and circuit courts,[1077] it is highly likely that a conviction for statutory rape will be found to constitute sexual abuse of a minor.  If the statute requires that the child be 15 or younger, the courts are extremely likely to conclude that any consent has no meaning, and the contact is therefore equivalent to battery, in this case sexual battery, and therefore clearly constitutes an aggravated felony sexual abuse of a minor.

 

It may be possible to argue, however, that the act of intercourse does not necessarily inflict either physical or psychological harm upon a person just shy of their 18th birthday.[1078]  Evidence showing that older teenagers, as opposed to young children, are relatively experienced and sophisticated in sexual matters, and are considered by society to be relatively emotionally mature, may help show that “harm” is not necessarily caused by their consensual sexual relationships.  Evidence showing that psychological harm is not necessarily caused would be very helpful.  This includes statistics regarding the number of youth of different age groups in the United States who have had sexual experiences,[1079] or evidence regarding the attitudes of Americans as to whether consensual sex with a 16- or 17-year-old necessarily constitutes abuse.  The public may wish that older teenagers did not engage in sex, and may even agree with criminalizing this conduct, especially as a misdemeanor.  However, they may not necessarily agree that a sexual relationship or any sexual contact at this age meets the definition of sexual abuse as it is commonly understood, committed against someone too young to understand the nature of the advances, since teenagers of this age range are not too young to make an informed consent or to understand what is going on.

 

Valencia III deleted a footnote, present in both Valencia I and Valencia II, that noted that the Ninth Circuit had previously held that statutory rape was “sexual abuse of a minor.”  The cases cited in this footnote, United States v. Granbois,[1080] and United States v. Periera-Salmeron,[1081] were both sentencing cases interpreting “sexual abuse of a minor” for the purposes of the “crime of violence” definition applied in the illegal re-entry sentencing context.[1082]  In Valencia III, however, the court instead cited United States v. Pallares-Galan[1083] for the idea that the court must assume the victim is just shy of the age of majority in making a decision using categorical analysis.  This suggested that the Ninth Circuit, at least, was open to applying Pallares-Galan in the immigration context, to determine whether a statutory rape would necessarily qualify as sexual abuse of a minor. 

 

                Only 12 states in the country maintain the age of consent for sexual penetration at age eighteen.  The majority of states place the age of consent for sexual relations at age 16.[1084]  Counsel should argue that if the majority of states do not even criminalize sexual activity with a person who is 16 or 17, such activity cannot constitute sexual “abuse” according to the “ordinary, contemporary and common meaning of the words . . . .”[1085]

 

The legislative history of the statute and the pattern of enforcement also may be relevant.  For example, the legislative history of amendments to the statutory rape law in California (prohibiting sexual intercourse with anyone under the age of 18) states that the purpose of the law is to save the state money by curbing the proliferation of teenage pregnancy.[1086]  The vast majority of men charged under this statute are identified because the young women involved became pregnant and applied for welfare.  The statutory rape charge and conviction is used as a means of forcing the man to pay child support.[1087]  Because the history and purpose of this statute is so clearly based on saving public funds, as opposed to preventing sexual abuse of young children, it is arguable that this offense is not what Congress intended when it made “sexual abuse of a minor” an aggravated felony.

 

                In addressing the question of whether statutory rape qualifies as “sexual abuse of a minor,” the Ninth Circuit issued two seemingly contradictory decisions (within a month of each other).

 

In Afridi v. Gonzales,[1088] the court found that for immigration purposes, a California misdemeanor conviction for unlawful sexual intercourse with a minor,[1089] constituted sexual abuse of a minor, defined as encompassing any offense that involves “the employment, use, persuasion, inducement, enticement or coercion of a child to engage in . . . sexually explicit conduct . . . .”[1090]

 

                However, in United States v. Lopez-Solis,[1091] the court found that a Tennessee conviction of statutory rape,[1092] was not categorically ‘sexual abuse of a minor,’ and therefore not a ‘crime of violence’ for illegal re-entry sentence enhancement purposes.  Employing the “ordinary, contemporary, and common meaning” of the terms, the court applied the definition of “abuse” used in United States v. Pallares-Galan[1093] to find that consensual sex between an adult and a minor just one day shy of his or her 18th birthday[1094] was not necessarily either physically or psychologically “abusive.”

 

                So why do these two cases come to different conclusions?  In Lopez, the court distinguished Afridi on the basis that, in that case, it was required to give Chevron deference the BIA’s definition of “sexual abuse of a minor.”[1095] 

 

However, Afridi was arguably wrong to give deference to the BIA’s definition of sexual abuse of a minor in that case, since the BIA rendered its decision on November 22, 2004,[1096] more than eight months after the Ninth Circuit had announced its own definition of “sexual abuse of a minor” in Pallares-Galan.  Where a circuit court decides a rule different from that applied by the BIA, the BIA is required to follow that circuit’s rule when issuing a decision in a case arising within that circuit’s jurisdiction.[1097]  Therefore, the BIA in Afridi erred in failing to apply Pallares-Galan, and the Ninth Circuit should have reversed on that basis.

 

                Nevertheless, counsel can also argue that “sexual abuse of a minor” must be defined in the same way, regardless of whether it is used in the immigration or sentencing context.[1098]  Given that (1) in Lopez-Solis, the Ninth Circuit looked at its own “sexual abuse of a minor” definition with an eye to determining whether statutory rape falls within that definition; (2) Afridi did not involve such examination (and did not even cite Pallares-Galan); and (3) Lopez-Solis was decided after the court decided Afridi, counsel should argue that the analysis in Lopez-Solis applies to all future cases arising within the Ninth Circuit, regardless of whether in the immigration or sentencing context.  Even if the Ninth Circuit was at one point required to defer to the BIA, where the court did not yet have its own definition, this is no longer the case.

 

[1077] See, e.g., United States v. Chavarriya-Mejia, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (“Because Kentucky law presumes that underage children are incapable of consent, statutory rape necessarily involves a sexual act performed “against” the child.  Therefore we determine that statutory rape is sexual abuse of a minor.”); Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. July 10, 2001); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (Calif. Penal Code § 288(a) — lewd act with child under 14 — was sexual abuse of a minor, even though it might involve merely sexual intent with “innocent” contact or no contact between the parties); Matter of VFD, 23 I. & N. Dec. 859 (BIA Jan. 23, 2006) (sex between a 24-year-old and a 17-year-old is sexual abuse of a minor); Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999) (indecent exposure with no physical contact is sexual abuse of a minor).

[1078] But see Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005) (“Thus, when a minor [under 18] is offered an item of value--here, contraband (cigarettes) that a minor could not legally obtain herself--in exchange for having sex with an adult, she may well be incapable of fully appreciating the consequences of yielding to the lure of the offer.  Because minors are, in this respect, more susceptible to corrupt influences, it is reasonable to think of an adult’s solicitation of a minor to be abusive in the sense of exploiting the minor’s vulnerabilities.”).

[1079] While social science research may provide the best information, law review articles also discuss this issue.  See, e.g., Lewis Bossing, Now Sixteen Could Get You Life: Statutory Rape, Meaningful Consent, and the Implications for Federal Sentencing Enhancements, 73 N.Y.U. L. Rev. 1205, 1226 1998.  The author cites studies in which 14-year-old adolescents exhibited adult levels of competency in various tests, as well as the increasingly common access teenagers have to contraceptive care, prenatal care, and mental health counseling.  Id. at 1229.

[1080] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004).

[1081] United States v. Periera-Salmeron, 337 F.3d 1148 (9th Cir. 2003).

[1082] U.S.S.G. § 2L1.2, cmt. N. 1(b)(ii) (2002) (defining crime of violence, in part, as including “forcible sex offenses (including sexual abuse of a minor)”).

[1083] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (annoying or molesting a child is not categorically sexual abuse of a minor, as acts that are merely annoying are not abusive).

[1084] See Charles A. Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton Hall Leg. J. 1, 59 (1997).  In compiling the various state statutes proscribing sexual relations with minors, the author cites the following figures for age of consent to sexual penetration: six states define the age of consent at 17; 30 states define the age of consent at 16; one state defines the age of consent at 15; one state defines the age of consent at 14.  Id. at 60.

[1085] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1996).

[1086] See Historical and Statutory Notes, following the annotated California Penal Code § 261.5, Stats 1996, ch. 789.  The 1995 act providing for greater enforcement is the “Teenage Pregnancy Prevention Act of 1995,” and the purpose is to offset the large increase in welfare payments that the state believes are the result of illicit sex with underage females.  See comment in section 1, part (b): “California spent $3.08 billion in 1985 to assist families headed by teenagers.  If those births had been delayed until the mothers were at least 20 years old, the state would have saved $1.23 billion in welfare and health care expenses.”

[1087] See Kay Leslie Levine, Prosecution, Politics and Pregnancy: Enforcing Statutory Rape in California, Ph.D. Manuscript (2003), University of California at Berkeley, Boalt Hall School of Law.  See also Caolyn E. Cocca, Jailbait: The Politics of Statutory Rape Laws in the United States (State University of New York Press, 2004).

[1088] Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006).

[1089] Penal Code § 261.5(c).

[1090] Id. at 1217, quoting Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995 (BIA 1999).

[1091] United States v. Lopez-Solis, 447 F.3d 1201 (9th Cir. May 19, 2006).

[1092] Tennessee Code § 39-13-506.  Note that this offense is technically more serious than that involved in Afridi, supra, since the minimum conduct of the offense requires four years age difference between the defendant and victim, rather than three years under the California statute.

[1093] United States v. Pallares-Galan, 359 F.3d 1088, 1100 (9th Cir. 2004).

[1094] Applying the minimum conduct test.  See § 16.8, supra.

[1095] United States v. Lopez-Solis, 447 F.3d at 1209-1210.  See also Afridi v. Gonzales, 442 F.3d at 1216 (“Because the BIA’s construction of the statute was permissible we defer to it.”).

[1096] Afridi v. Gonzales, 442 F.3d at 1215.

[1097] The Board must follow a court’s precedent in cases arising in that circuit. See Matter of Anselmo, 20 I. & N. Dec. 25, 31 (BIA 1989).

[1098] See § 19.22, supra.

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).