Aggravated Felonies

The sexual abuse of a minor category clearly requires that the victim be a “minor.”  This is an essential element of the ground of deportation.  If the government cannot establish by clear and convincing evidence that the noncitizen was specifically convicted of committing sexual abuse against a person under 18 years of age,[655] the ground of deportation has not been established.  The proper rule is that if the record of conviction does not contain proof of age, a conviction cannot be considered to be sexual abuse of a minor.  See Chapter 4, supra.

            In Singh v. Ashcroft,[656] the Third Circuit found that a conviction for unlawful sexual conduct in the third degree, punishing sexual contact where the actor knows that the contact is offensive to or without consent of the victim, could never constitute an aggravated felony sexual abuse of a minor offense because the statute did not require as an element that the victim be a minor, even if the victim was, in fact, under 18 years old.  Looking to the phrase “sexual abuse of a minor” in INA § 101(a)(43)(A),[657] the court found that to fall within this category, the statute of conviction must require proof beyond a reasonable doubt of the minority of the victim.  The court compared this to other aggravated felony categories, such as INA § 101(a)(43)(M)(i)[658] (fraud, in which loss to the victim exceeded $10,000), and stated that “nothing in the phrase ‘sexual abuse of a minor’ signals that a factual investigation [into the record of conviction] is called for.  Congress could have enacted, for example, the language ‘any sex offense, where the victim of such offense was a minor[.]’”[659]

            In a highly analogous case, the Ninth Circuit held in Tokatly v. Ashcroft, [660] that a charge of deportability under INA § 237(a)(2)(E)(i),[661] for conviction of a “crime of domestic violence,” must be based upon a statute that requires proof a domestic relationship to the victim as an element of the offense.  The court refused to accept the government’s argument that the categorical approach, limited to the elements of conviction, applied only the “crime of violence” portion of the deportation ground, and that the domestic relationship could be found in the record of conviction independently of the elements required to convict.

On the other hand, the Seventh Circuit improperly concluded, in Lara-Ruiz v. INS, [662] that an Illinois felony conviction for sexual assault was sexual abuse of a minor where the record of conviction indicated that the victim was a four-year-old girl, even though the statute of conviction did not require, under any set of elements, that the victim be a minor.  The Illinois statutes define “sexual assault” as an act of sexual penetration by the use of force or threat of force . . . and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.”[663]  The court improperly[664] found that the statute was “divisible” because it might or might not include conduct that amounted to sexual abuse of a minor, and then examined the record of conviction to determine that the victim had, in fact, been under 18 years old.  In Gattem v. Gonzalez,[665] the court applied the same improper analysis to determine that an offense of solicitation of a sexual act was, in fact, sexual abuse of a minor.  In neither case did the court attempt to explain why it was allowed to look past the elements necessary to convict, and examine the record of conviction to determine the fact of the actual age of the victim.

[655] Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006) (victim of sexual abuse who is under the age of 18 is a “minor” for purposes of determining whether a noncitizen has been convicted of sexual abuse of a minor within the meaning of INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).  The victim does not, in fact, need to be under 18.  See Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. Dec. 28, 2005) (Illinois conviction of indecent solicitation of a child, in violation of 720 ILCS 5/11-6(a)(2000), constituted sexual abuse of a minor aggravated felony, under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for deportation purposes even though the person solicited was an adult police officer rather than a minor).

[656] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004).

[657] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

[658] INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).

[659] Singh v. Ashcroft, 383 F.3d at 146 (3d Cir. Sept. 17, 2004).

[660] See Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Oregon convictions of first degree burglary and attempted first degree kidnapping, in violation of Or. Rev. Stat. § § 163.225, 163.235, found not to be “crimes of domestic violence,” under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for deportation purposes, since there was no evidence in the record of conviction that victim was a protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent).

[661] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[662] Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001).

[663] Ill.Rev.Stat. 1991, ch. 38, § § 12-13(a)(1), (2).

[664] See § 4.13, supra.

[665] Gattem v. Gonzalez, 412 F.3d 758, 768 (7th Cir. June 20, 2005).