(A)  Elements of the Aggravated Felony Category.  The 1996 IIRAIRA added “sexual abuse of a minor” to the definition of aggravated felony.[726]  Note that there is no requirement that a one-year sentence be imposed in order for sexual abuse of a minor to be an aggravated felony.  This aggravated felony category therefore has the following elements:

 

            (1)  a conviction of an offense that is

            (2)  sexual (see § 7.97, infra)

            (3)  abuse (see § 7.98, infra)

            (4)  of a minor. See § 7.99, infra.

 

If any of these elements cannot be shown by clear and convincing evidence, the conviction cannot trigger deportability under this category.

 

          NOTE:  In researching cases on the definition of sexual abuse of a minor, counsel should look not only to cases dealing with the aggravated felony definition, [727] but also to cases that define “sexual abuse of a minor” as part of the definition of “crimes of violence” under the revised United States Sentencing Guidelines provision governing sentences for unlawful re-entry into the United States following a felony conviction.[728]  The definition of “crimes of violence” in that section of the Guidelines is not precisely the same as the definition of “crimes of violence” used for aggravated felony purposes.[729]  The Guidelines definition of crimes of violence lists specific offenses that are to be considered crimes of violence, including statutory rape and sexual abuse of a minor.[730]  While there may be arguments that the definition of sexual abuse of a minor as a “crime of violence” under the Guidelines should not control in cases involving the aggravated felony definition of sexual abuse of a minor, it is likely that courts will take the view that the definitions are identical.[731]  (The aggravated felony definition of sexual abuse of a minor, like other aggravated felonies, is interpreted by courts in two contexts: in immigration cases in which the question is whether a conviction constitutes an aggravated felony for purposes of triggering a ground of deportation,[732] and in illegal re-entry cases in which the question is whether a conviction constitutes an aggravated felony for purposes of triggering an increase in the statutory maximum sentence and a sentence enhancement.)[733]

(1)  Definition of the Category.  Decisions by the BIA and several circuit courts have defined aggravated felony sexual abuse of a minor.  In general, they reject the use of the federal statutory definition in criminal statute of “sexual abuse of a minor” as the definition of aggravated felony “sexual abuse of a minor,” and find that sexual abuse of a minor can occur even if the perpetrator does not touch the minor.  Other issues that arise include which actions should be held to constitute “abuse,” what effect the age of the minor has in the determination, the felony/misdemeanor distinction, sources for the definition of sexual abuse, and whether the categorical analysis will be strictly applied.  The following is a non-comprehensive summary of important cases from various courts.

            Board of Immigration Appeals.  In Matter of Rodriguez-Rodriguez, the BIA considered whether the offense of indecency by exposure to a minor under the age of 17 pursuant to a Texas statute was an aggravated felony as sexual abuse of a minor.  The elements of the offense did not require physical contact with the minor, but did include exposing genitals to a person under 17 with the intent to sexually gratify or arouse any person.[9]  A divided Board rejected the use of the federal statutory criminal offense definition of “sexual abuse of a minor,” which had a requirement that physical contact must occur.  It adopted as the standard a far broader definition of sexual abuse of a minor, found in a different non-criminal federal statute dealing with the rights of child victims and child witnesses.[734]  That definition included any sexually lascivious conduct with a child.  The Board also considered the seriousness of the offense as a factor in its determination, noting that there was a defense under the statute of conviction for someone whose age was within three years of the victim or did not use duress, and that the noncitizen had been sentenced to ten years in prison.

 

            In Matter of Small the Board found that a misdemeanor conviction could constitute the aggravated felony sexual abuse of a minor.[735]

 

            First Circuit.  In Emile v. INS, a noncitizen convicted of indecent assault and battery on a child under fourteen, in violation of Massachusetts law, was held to have been convicted of the aggravated felony of sexual abuse of a minor even though the statute did not require as an element intentional touching of a sexual nature.[736]  The court noted that the comparable federal “sexual abuse” statute does not require an intent to arouse, but rather it is enough to intend to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”[737]  Seeing “no evidence that anything much less or different would be required” under the state law, the court affirmed the finding, even though it also found that “it may be that there are some ‘touchings’ that would violate [the state law] that might not be ‘sexual contact’ under the federal statute, but the discrepancy does not appear to be very great.”[738]  Ultimately, the court improperly looked to the police reports in the case and found that, regardless of the elements of the statute of conviction, the defendant’s conduct clearly met the federal test for sexual abuse of a minor.  The last two findings were a radical departure from the rules governing a modified categorical analysis.  The United States Supreme Court, in Shepard v. United States,[739] overruled United States v. Harris,[740] and reversed United States v. Shepard. [741]  Therefore, Emile is no longer good law since the two cases on which it rests have been reversed or overruled by the United States Supreme Court, which expressly rejected the reasoning on which it relied.[742]

            Second Circuit.  In Mugalli v. Ashcroft, the Second Circuit held that in the absence of clear evidence of congressional intent as to the scope of sexual abuse of a minor, as the phrase was used in the statutory definition of aggravated felony, the administrative interpretation of the phrase reasonably included statutory rape, defined as sexual intercourse with a female under the age of 17.  The administrative definition was consonant with the generally understood broad meaning of the term “sexual abuse,” and was not restricted to the narrow language of the federal criminal statute.[743] 

 

            Third Circuit.  In Singh v. Ashcroft, [744] the Third Circuit found that a Delaware conviction of unlawful sexual contact in the third degree, penalizing “sexual contact with another person [with knowledge] that the contact is either offensive to the victim or occurs without the victim’s consent,”[745] does not constitute aggravated felony sexual abuse of a minor for purposes of triggering deportability.[746]

 

            Fifth Circuit. In United States v. Zavala-Sustaita,[747] the Fifth Circuit analyzed a conviction for indecent exposure, which punishes someone who “exposes his anus or any part of his genitals, knowing the child [under 17] is present, with intent to arouse or gratify the sexual desire of any person . . . .”[748] As the Board of Immigration Appeals did in Rodriguez-Rodriguez, the Fifth Circuit found that this offense constituted sexual abuse of a minor.  To determine whether the best ordinary, contemporary, and common reading of the phrase encompassed the Texas offense at issue, the court read each word of the phrase in isolation.  It noted dictionary definitions of “sexual” as “of, pertaining to, affecting, or characteristic of sex, the sexes, or the sex organs and their functions” and of “abuse” as, “inter alia, to use wrongly or improperly” or “to hurt or injure by maltreatment.”[749]  The court held that the Texas offense is “sexual” because it requires sexual arousal or gratification as its purpose, and that it is abusive because it requires exposure with knowledge of the child’s presence, therefore wrongly and improperly using and harming the minor.[750]

 

            Sixth Circuit.  In United States v. Gonzales-Vela, the court found that a conviction under a Kentucky statute for sexual contact with a person under the age of 14 was sexual abuse of a minor, although the conviction was a misdemeanor.[751]

            Seventh Circuit.  In Guerrero-Perez v. INS, the Seventh Circuit found in a summary fashion that an Illinois Class A misdemeanor conviction for criminal sexual abuse constitutes “sexual abuse of a minor.”[752]  That statute criminalizes “an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was less than 5 years older than the victim,”[753] and the complaint revealed that the defendant committed an act of sexual penetration with a girl fifteen years old, when he was nineteen years old.  It appears, however, that Guerrero-Perez did not argue that the crime did not constitute sexual abuse of a minor, but only argued that he could not be found to be an aggravated felon based on a misdemeanor conviction — an argument that the court rejected.  There is no holding, therefore, of the definition issue, since the court did not decide an issue that was not raised.[754]  In Lara-Ruiz v. INS, the Seventh Circuit found that if the state conviction falls within one of the listed federal statutes, it meets the common-sense definition of sexual abuse of a minor.[755]  This suggests that a conviction not falling within a federal criminal statute would not fall within this category.

 

            Eighth Circuit.  In Mendez-Morales v. INS, the court found that both the inclusion of the “sexual abuse of a minor” category in the aggravated felony statute, and the bar on a court taking petition for review jurisdiction over a case where the petitioner has been convicted of an aggravated felony, apply retroactively to the petitioner’s prior conviction for sexual assault of a minor.[756]

            Ninth Circuit.  In United States v. Baron-Medina, a seminal opinion often cited by other courts, the Ninth Circuit stated that it would define sexual abuse of a minor not by the definitions contained in the basic federal criminal statutes but “‘employing the ordinary, contemporary, and common meaning of the words that Congress used’ . . . .”[757]  It ruled that a conviction of committing a lewd act with a child under 14[758] constitutes aggravated felony sexual abuse of a minor, despite the fact that no touching is required under the statute.[759]  Using a categorical analysis, the court held that a conviction of violating this statute would be an aggravated felony if and only if the “full range of conduct” covered by it falls within the meaning of “sexual abuse of a minor.”  It noted that this offense could include even “innocent” appearing touching that was “innocently and warmly received” if it was effected with lewd intent.  The court held that a consensual sexual act with a child under the age of 14 was inherently abusive, and that Congress did not intend “the aggravated felony law to excuse an individual who preys upon a child too young to understand the nature of his advances . . . .  The use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order.”  The emphasis on the age of the child might support arguments that older teenagers, who are able to “understand the nature” of advances and who engage in consensual sexual activity, are not necessarily victims of “abuse.”  See § 7.101, infra.

            In United States v. Pereira-Salmeron, a case under the United States Sentencing Guidelines definition of “crime of violence,” the court cited Baron-Medina to hold that a Virgina statute prohibiting sexual intercourse or oral sex with a child under the age of 16 is sexual abuse of a minor.[760]  The subsection showed that the defendant was not a minor and was not close to the age of the victim. 

 

             In United States v. Granbois, another case decided under the Guidelines definition of “crime of violence,” the court stated that it was bound by Pereira-Salmeron to find that a conviction of “sexual contact” with a child under age 16 and at least four years younger than the perpetrator[761] is sexual abuse of a minor, even though it can involve behavior as minor as a 19-year old touching a 15-year-old’s thigh through her clothing.[762]  The holding in Granbois is troubling for at least two reasons.  First, the court did not discuss why a statute prohibiting sexual intercourse or oral sex should control in a case involving a statute that prohibited touching a thigh through clothing.  Second, Granbois did not discuss the prior Ninth Circuit decision in United States v. Pallares-Galan. [763]

 

            In United States v. Pallares-Galan, a case interpreting the aggravated felony definition of “sexual abuse of a minor,” the court found that not every act forbidden under California Penal Code § 647.6(a) (“annoying” or molesting a child), rises to the level of sexual abuse of a minor.  That statute could be violated by a wide range of acts even including, for example, an unsuccessful sexual proposition.  The court stated, “‘Abuse’ requires more than improper motivation; it requires conduct that is abusive.”[764]  In essence, it required some form or harm or injury to the child before an act would be held to constitute “abuse.”  This decision was published in February 2004, but was ignored in the Granbois decision decided several months later in July 2004.  The Granbois decision thus violated the rule that one circuit panel is not permitted to disagree with another on the same point absent changed circumstances not present here.  The Granbois decision also affirmed that a misdemeanor conviction can constitute an aggravated felony.[765]

            Eleventh Circuit.  In United States  v. Padilla-Reyes,[766] the Eleventh Circuit held that “the phrase ‘sexual abuse of a minor’ means a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.”

 

            Many questions are left unanswered, and criminal defense counsel should be careful to avoid a conviction in this type of case even where the elements do not satisfy the definition of sexual abuse of a minor, since the courts may improperly resort to the record of conviction (or stray even further), to establish the age of the victim.  The best option is an offense that does not contain an element of sexual intent and also does not necessarily bring other immigration consequences, such as being an aggravated felony as a crime of violence with a sentence imposed of a year or more, or as a crime involving moral turpitude.  In some states misdemeanor false imprisonment, straight battery, or attempting to persuade someone, without use of force, not to file a police report may be relatively clear of immigration consequences and close enough to the factual situation.  See § 7.101(E), infra.

 

[767] IIRAIRA § 322, amending INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

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

[727] USSG § 2L1.2 (2002).

[728] 18 U.S.C. § 16.

[729]  The United States Sentencing Guidelines have been amended twice since 2001.  In the most recent version, see 18 U.S.C. Appendix § 2L1.2 (2003),  Application Notes: Application of (b)(1):

(B) Definitions. For purposes of subsection (b)(1) . . .

            (E) (iii) “Crime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

[730]  See, e.g., United States v. Granbois, 376 F.3d 993 (9th Cir. 2004) (a USSG “crime of violence” case, stating that it is controlled in its definition of sexual abuse of a minor by United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (a USSG aggravated felony case); see also Valdez-Camacho v. Ashcroft, No. 01-71517 (9th Cir. 2004)(unpublished)(an aggravated felony case in immigration proceedings, stating that it is controlled by Granbois).

[731] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[732] 8 U.S.C. § 1326(b)(2).

[733] Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999).  Tex. Penal Code Ann. § 21.11(a) defines the offense as follows: “A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child; or  (2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.”  The conviction carries a sentence of from two to 10 years.  See also United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000) (holding this offense to be an aggravated felony under the United States Sentencing Guidelines).

[734] See 18 U.S.C. § 3509(a).

[735] Matter of Small, 23 I. & N. Dec. 448 (BIA 2002) (a misdemeanor conviction of violating New York Peanl Law § 130.61(2), prohibiting sexual contact with a person under the age of 14, is an aggravated felony).

[736] Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (analyzing Massachusetts General Laws Chapter 265 § 13B).

[737] 18 U.S.C. § 2246(3) (emphasis supplied).

[738] Emile v. INS, 244 F.3d 183, 188 (1st Cir. 2001).

[739] Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005).

[740] United States v. Harris, 964 F.2d 1234 (1st Cir. 1994).

[741] United States v. Shepard, 231 F.3d 56 (1st Cir. 2000).

[742] Thanks to Dan Kesselbrenner for this analysis.

[743] Mugalli v Ashcroft, 258 F.3d 52 (2d Cir. 2001) (conviction of violating New York Penal Law § 130.25-2 is sexual abuse of a minor for immigration purposes).

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

[745] Del. C. § 767.

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

[747] United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000).

[748] Texas Penal Code § 21.11(a)(2).

[749] Id. at 604.

[750] Ibid.  Thanks to Marianne C. Yang for this analysis.

[751] United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir., 2001).

[752] Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001).

[753] 720 ILCS 5/12-15(c).

[754] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

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

[756] Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997).

[757] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999); accord, Cedano-Viera v. Ashcroft, 2003 WL 1542642 (9th Cir. March 26, 2003) (unpublished) (Nevada conviction of lewd act on a child, in violation of Nevada Revised Statute § 201.230(1) (1996), constituted sexual abuse of a minor and was therefore an aggravated felony justifying removal under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), depriving the court of appeals of jurisdiction to review a removal order).

[758] California Penal Code § 288(a).

[759] United States v. Baron-Medina, 187 F.3d at 1146.

[760] United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003) (Virginia conviction of violating Virginia Code § 18.2-63 is a crime of violence as sexual abuse of a minor).

[761]  18 U.S.C. § 2244(a)(3).

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

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

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

[765] See also United States. v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. 2005).

[766] United States v. Padilla-Reyes, 247 F.3d 1158, 1160 (11th Cir. 2001) (holding that a conviction of violating Florida Statute § 800.04 constitutes sexual abuse of a minor).

BIA

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - MINOR - MINOR IS ANYONE UNDER 18 YEARS OF AGE
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)).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3523.pdf

Lower Courts of Second Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CHILD PORNOGRAPHY
Gonzalez v. Ashcroft, ___ F.Supp.2d ___ (S.D.N.Y. April 29, 2005) (New York conviction for "use of a child in a sexual performance" under New York Penal Law ("N.Y.P.L.") 263.05, did not constitute an offense relating to child pornography, and was therefore not an aggravated felony under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I), because the statute of conviction permits convictions for a lesser degree of scienter when parents or guardians are charged with violating the statute than the federal statutes encompassed by the aggravated felony provisions require, i.e., to act intentionally or knowingly: "Unless the scienter element is read so as not to attach to the parent's knowledge of the nature of the performance, the clause regarding parents is rendered superfluous.").

Third Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION
Stubbs v. Attorney General, ___ F.3d ___, 2006 WL 1776462 (3d Cir. Jun. 29, 2006) (finding New Jersey conviction for "endangering welfare of children" under N.J. Stat. Ann. 2C:24-4(a), is not a aggravated felony sexual abuse of a minor, the Third Circuit [incorrectly] stated that the BIA, in Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 Z(BIA 1999) specifically adopted 18 U.S.C. 3509(8) as the definition of sexual abuse of a minor). http://caselaw.lp.findlaw.com/data2/circs/3rd/044316p.pdf

Fifth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION OF MINOR
United States v. Munoz-Ortenza, 563 F.3d 112 (5th Cir. Mar. 18, 2009) ("We need not decide here whether "minor" as used in the enumerated category of "sexual abuse of a minor" means those under sixteen versus those under seventeen. We can say that "minor" in this context does not include all persons under eighteennamely, seventeen-year-olds. We are mindful that in many contexts a minor is defined as a person under eighteen. See Blacks Law Dictionary 997 (6th ed. 1990) ("In most states, a person is no longer a minor after reaching the age of 18 . . . ."). However, in the unique crime-of-violence context, we must follow the Taylor common-sense approach.").

AGGRAVATED FELONY - STATUTORY INTERPRETATION - STATUTE DEFINING "SEXUAL ABUSE OF A MINOR" HAS SAME MEANING IN IMMIGRATION AS CRIMINAL SENTENCE CONTEXT
United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir. Mar. 7, 2008) (the term "sexual abuse of a minor" has the same meaning in the aggravated felony context as in the illegal re-entry sentencing context).

Seventh Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - INDECENT SOLICITATION OF A CHILD
Hernandez-Alvarez v. Gonzales, ___ F.3d ___, 2005 WL 3534204 (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), following Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF A SEXUAL ACT RECORD OF CONVICTION - FACT OF VICTIMS AGE IN CRIMINAL COMPLAINT, ALTHOUGH NOT REQUIRED TO CONVICT, IS SUFFICIENT TO PROVE SEXUAL ABUSE OF A MINOR
Gattem v. Gonzalez, __ F.3d __, 2005 WL 1422373 (7th Cir. June 20, 2005) (misdemeanor solicitation to engage in a sexual act, in violation of Illinois law, 720 ILCS 5/11-14.1(a), is an aggravated felony, sexual abuse of a minor, offense for immigration purposes where the criminal complaint [and no other document] shows that the victim was under the age of 18)

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL CONDUCT WITH A MINOR
United States v. Gomez, __ F.3d __, 2014 WL 1623725 (9th Cir. Apr. 24, 2014) (Arizona conviction for violation of ARS 13-405, sexual conduct with a minor under the age of fifteen, is not necessarily a crime of violence, as sexual abuse of a minor, for illegal re-entry sentencing purposes, under current law), applying tests of Estrada"Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. Dec. 14, 2009) (California conviction of "unlawful sexual intercourse with a minor" under Penal Code 261.5(d) is not categorically a sexual abuse of a minor as defined in INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for immigration purposes: "Because section 261.5(d) does not include the relevant scienter requirement of 2243, and criminalizes sexual conduct that is not necessarily abusive, we conclude that section 261.5(d) does not qualify as the generic federal crime of "sexual abuse of a minor," and therefore is not categorically an aggravated felony under 1101(a)(43)(A).").

NOTE: The Ninth Circuit applied two separate definitions of "sexual abuse of a minor." Where the offense involves what is known as "statutory rape," the relevant test is whether the statute of conviction falls within 18 U.S.C. 2243 ("Whoever ... knowingly engages in a sexual act with another person who-(1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both."). The mens rea of "knowingly" in 2243(a) requires only that the act was "knowingly" committed, not that the defendant knew the age of the victim or the age difference.

In non-statutory rape case, the definition of "sexual abuse of a minor" means: "(1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse. Id. at 513 (internal quotation omitted). A criminal statute includes the element of "abuse" if it expressly prohibits conduct that causes "physical or psychological harm in light of the age of the victim in question." Id. at 513. Sexual conduct involving younger children is per se abusive. Id." Citing United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009).

The court looked to both definitions, and found that California Penal Code 261.5(d) did not meet either. The California offense did not meet the first definition since it could be committed without "knowledge" (i.e. through intoxication of the defendant), and did not meet the second definition since the state statute does not require "abuse," as an element, and sex with a minor 1 day short of 16 is not per se abusive.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - ELEMENTS
United States v. Medina-Villa, 570 F.3d 213 (9th Cir. June 23, 2009) (sexual abuse of a minor has the same meaning in the immigration and sentencing contexts - except as it concerns statutory rape in the immigration context; as generically defined, the term requires three elements - sexual conduct, against a minor, that constitutes abuse [physical or psychological harm]), distinguishing Estrada- Espinosa,546 F.3d 1147 (9th Cir. 2008), which applied 18 U.S.C. 2243 to define "sexual abuse of a minor" in the context of a statutory rape conviction.

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).

ARTICLE - NINTH CIRCUIT DEFINES SEXUAL ABUSE OF A MINOR ACCORDING TO FEDERAL CRIMINAL STATUTE TO REQUIRE MINOR UNDER 16 YEARS OLD WITH AGE DIFFERENCE OF FOUR YEARS
  In Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc), the Ninth Circuit held that a California conviction of consensual sex under the four penal statutes with a minor 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. This holding applied to convictions for unlawful sex with a minor more than three years younger, in violation of Penal Code 261.5(c), consensual sodomy with a person under 18 years old, in violation of Penal Code 286(b)(1), consensual oral copulation with a person under 18 years old, in violation of Penal Code 288a.(b)(1), and consensual sexual penetration by a foreign object of a person 14 years old, but under 18, in violation of Penal Code 289(h).

Definition of "Sexual Abuse of a Minor. To define "sexual abuse of a minor," in the aggravated felony definition, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), the court adopted Congress' definition of sexual abuse of a minor in its definition of the federal crime under 18 U.S.C. 2243. It rejected a different definition of sexual abuse of a minor, contained in a non-criminal statute, 18 U.S.C. 3509(a)(8), which "merely addresses the rights of child victims and witnesses." (Estrada-Espinoza, at ___ n.2.) It reasoned: " Since 8 U.S.C. 1101(a)(43)(A) defines a category of crime (aggravated felony), it is more plausible that Congress intended the "aggravated felony" of "sexual abuse of a minor" to incorporate the definition of "sexual abuse of a minor" in 18 U.S.C. 2243, which is a criminal statute outlining the elements of the offense, rather than the definition of "sexual abuse" found in 18 U.S.C. 3509. (Ibid.)

Therefore, the Ninth Circuit found, under 2243, "the generic [aggravated felony] offense of "sexual abuse of a minor" requires four elements: (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor." (Id. at ___.) Sexual act is defined at 18 U.S.C. 2246(2) to include anal or genital penetration, however slight, or oral contact with genitals or anus. If the person is under the age of 16, it also includes touching genitals, not through clothing, with intent to arouse or harass. This offense has a defense where the defendant proves that s/he reasonably believed the victim was age 16 or older. (18 U.S.C. 2243(c)(1).) Counsel can argue that if the definition of sexual abuse in the statute of conviction is broader than the definition under 2246(2), or the statute of conviction lacks a defense of lack of knowledge coextensive with that provided in 2243(c)(1), a conviction under the statute defining the offense does not qualify as a sexual abuse of a minor aggravated felony.

The court also concluded that this definition comports with "the ordinary, contemporary, and common meaning of the words" of the term. (Id. at ___, citing United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999).) It reasoned that 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. " 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)).(Id. at ___.) It found: "A survey of relevant statutes makes clear that, under national contemporary standards, although sexual activity with a younger child is certainly abusive, sexual activity with an older adolescent is not necessarily abusive." (Id. at ___.) In support, it pointed out that the Model Penal Code and a majority of the states place the age of consent at 16 years of age, as Congress did in the criminal statute, and 43 states allow marriage at age 16 with parental consent. (Ibid.) "The fact that the vast majority of states do not forbid consensual sexual intercourse with a 17-year-old male or female indicates that such conduct is not necessarily abusive under the ordinary, contemporary, and common meaning of 'abuse.'" (Ibid. [footnote omitted].) "In sum, Congress has defined the crime of "sexual abuse of a minor," and its definition is in accord with the contemporary meaning attached to the crime by a majority of the states." (Id. at ___.)

The court concluded that Congress had no need to identify 2243 specifically, since the phrase "sexual abuse of a minor" referred to a specific identificable offense, so no cross-reference was needed. (Id. at ___.)

No Chevron Deference Due to BIA. It also rejected the government's argument that the court must give Chevron deference to the "one-judge, non-precedential, unpublished BIA order in this case." (Id. at ___.) It rejected this suggestion, since "A single-judge, unpublished, non-precedential BIA decision does not satisfy the standards established for Chevron deference by the Supreme Court in United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)." (Id. at ___ & n.5, pointing out that all four other circuits to address this question are in accord.) The court also rejected the government's suggestion that it defer to the "guide" offered by the BIA in Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999). "However, Chevron deference does not apply in these circumstances because Rodriguez-Rodriguez did not interpret a statute within the meaning of Chevron, but only provided a "guide" for later interpretation." (Id. at ___.)

According Chevron deference to Rodriguez-Rodriguez would be inappropriate because the BIA did not construe the statute and provide a uniform definition in the decision. Rather, it developed an advisory guideline for future case-by-case interpretation. The Supreme Court has instructed that "[i]nterpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference." Christensen v. Harris County, 529 U.S. 576, 587 (2000). Although Rodriguez-Rodriguez has the force of decisional law, its "guide" for ascertaining the meaning of "sexual abuse of a minor" suffers from the same imprecision that internal agency guidelines possess. As the Seventh Circuit has noted, when the BIA "hasn't done anything to particularize the meaning" of a term, "giving Chevron deference to its determination of that meaning has no practical significance." Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir.2004).

This wisdom is particularly apt when courts are engaged in a Taylor analysis of a prior conviction. The underlying theory of Taylor is that a national definition of the elements of a crime is required so as to permit uniform application of federal law in determining the federal effect of prior convictions. Taylor, 495 U.S. at 590. A Taylor analysis requires a comparison between the prior conviction and the nationally-established generic elements of the offense at issue. Without defined elements, a comparison of the state statute with the federally-defined generic offense is not possible. [Footnote omitted.] In apparent recognition of the problem of deferring to a guideline that contemplates case-by-case variance, the government suggests that the Rodriguez-Rodriguez guide was meant to embrace all the varying state statutes that could conceivably encompass the concept of "sexual abuse of a minor." However, it was just this approach that the Supreme Court rejected in Taylor. See 495 U.S. at 590 ("It seems to us to be implausible that Congress intended the meaning of "burglary" for purposes of 924(e) to depend on the definition adopted by the State of conviction."). [Footnote omitted.] The Rodriguez-Rodriguez guide is simply not the type of agency action to which Chevron deference would apply. [Footnote omitted.] It also held that even if it applied Chevron to Rodriguez-Rodriguez, no deference is due because "When Congress has spoken directly to the issue, as it has here, our inquiry is over and Chevron deference does not apply." (Id. at ___ n.7) The court did not reach the question whether deference was owed to the BIA's interpretation of a criminal offense, such as "sexual abuse of a minor." (Id. at ___n. 10, citing Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003) [according no deference where the statute in question "is not a statute which the BIA administers or has any particular expertise in interpreting, no deference is accorded to the BIA's interpretation."].)

Categorical Analysis. Comparing the elements of the four state statutes of conviction against the federal aggravated felony definition, the court concluded that none of these four statutes invariably fell within the federal definition. All four of the unlawful sex with a minor statutes at issue here "are missing the fourth element of the generic statute: an age difference of at least four years between the defendant and the minor." (Id. at ___.) In addition, all four of the statutes are broader than the generic definition by penalizing acts with persons who are 16 and 17 years old, whereas the federal offense penalizes acts only with those under age 16. (Id. at ___.) The mens rea requirement of these four statutes was not apparent from the face of the statutes, so the court did not consider whether the mens rea was broader than the federal aggravated felony definition, which requires a mens rea level of "knowingly." (Id. at ___.)

Modified Categorical Analysis. The court concluded that it cannot apply the modified categorical analysis to three of the four statutes:

As we held in Navarro-Lopez, the modified categorical approach does not apply "[w]hen the crime of conviction is missing an element of the generic crime altogether, [because under such circumstances] we can never find that a jury was actually required to find all the elements of the generic crime."Id. at 1073 (quoting Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir.2004) (Kozinski, J., concurring)).

As we have discussed, three of the four California statutes are missing the element of the generic crime which requires a four-year age difference between the defendant and the minor. Because a jury could not have been actually required to find this element to convict Estrada-Espinoza under 286(b)(1), 288a(b)(1), or 289(h), we cannot apply the modified categorical approach to conform Estrada-Espinoza's conviction under those three statutes to the generic definition of "sexual abuse of a minor."(Id. at ___.)

With respect to the fourth statute, unlawful sex with a minor more than three years younger, the court also reached the conclusion that the modified categorical approach could not be used:

Because 261.5(c) applies to minors under the age of 18 and defendants who are only three years and one day older, it is not possible that "a jury was actually required to find all the elements of" the generic offense, Taylor, 495 U.S. at 602. As such, the modified categorical approach cannot be used to conform Estrada-Espinoza's conviction to the generic definition of "sexual abuse of a minor."(Id. at ___.)

This is for two reasons. First, the minor might be 16 or 17 years old, and thus not meet the "under 16" element of the federal definition. Second, the age difference might be as little as three years and one day, instead of being in excess of four years as required by the federal definition. This is true even though Penal Code 261.5(c) is not missing an age-difference element altogether, because the three year one day age difference element in the statute is overbroad by comparison with the four year age difference element in the sexual abuse of a minor definition under 18 U.S.C. 2243.

Implications for Other Cases. Aside from the holding itself, Estrada-Espinoza has important implications for other cases. This decision was not only en banc, but also unanimous, so the court spoke with considerable clarity and force.

First, the court made it clear that when seeking a definition for a phrase in the aggravated felony definition, and by implication, in other conviction-based grounds of deportation as well, it would first determine whether Congress has defined the term in a federal statute defining a criminal offense. If so, presumably Congress meant to use the same definition in the deportation ground as it had in defining the federal criminal offense. Only if there was no corresponding federal crime would the court move on to examine the Model Penal Code and how the offense was treated in the criminal codes of the several states.

This has implications for a number of the aggravated felony definitions that do not expressly refer to federal criminal statutes. It is clearest that the same analysis can be applied to the aggravated felonies murder, rape, illicit trafficking in a controlled substance, theft receipt of stolen property, burglary, attempt and conspiracy. INA 101(a)(43)(A), (B), (C), (G), (U), 8 U.S.C. 1101(a)(43)(A), (B), (C), (G), (U). It is less clear that it can be applied to offenses "involving" fraud and deceit (M)(i)), or offenses relating to prostitution business (K), failure to appear (Q), (T), or commercial bribery, counterfeiting, forgery, and trafficking in vehicles with altered identification numbers (R), or obstruction of justice, perjury, subornation of perjury, or bribery of a witness (S). This is because the government can argue that "involving" or "relating to" language broadens the definitions beyond the core meaning. But the same Estrada-Espinoza argument can in fact be made with respect to all aggravated felony definitions that do not expressly refer to a federal criminal statute.

In addition, it can be made with respect to other grounds of deportation, such as the domestic violence ground. While "domestic violence" is defined with reference to a federal criminal statute, the other listed offenses within that ground of deportation are not: stalking, child abuse, neglect or abandonment. INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).

Second, the unanimous, en banc court reaffirmed the rule that in determining the nature of the offense for removal purposes, it is not possible to consider any fact shown in the record of conviction that is not an essential element of the offense of conviction. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. September 19, 2007); Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring). This prohibits the use of "extra element" facts that in other jurisdictions are sometimes allowed to include facts beyond the elements of the offense of conviction in determining the nature of the offense of conviction for immigration purposes. E.g., Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007), rev'd, Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008); Matter of Babaisakov, 24 I. & N. Dec. 306 (2007). Other circuits have sometimes violated this "elements" limitation in the contexts of sexual abuse of a minor, domestic violence offenses, and the loss to the victim in fraud aggravated felonies.

Under Estrada-Espinoza, it is not only improper to go outside the elements of the offense of conviction in the categorical analysis, but it is also improper in the modified categorical analysis. In other words, a sexual battery conviction, under California Penal Code 243.4(a), committed in fact against a minor, cannot be considered a sexual abuse of a minor aggravated felony under the categorical analysis, because the age of the victim is not an element of the criminal offense, but it also cannot be considered such an aggravated felony under the modified categorical analysis, even if the record of conviction showed the victim was a minor, for the same reason: it is not an element of the offense.

Moreover, the California offense of committing a lewd act with a person under 14 years of age, under Penal Code 288(a), may not qualify as a sexual abuse of a minor aggravated felony. It is true it requires the minor to be under 14, which meets the Estrada-Espinoza requirement that the minor be under 16 years of age. This offense, however, does not have as an element any age difference between the accused and the minor. Therefore, this offense would not qualify as sexual abuse of a minor under 18 U.S.C. 2243. Therefore, it does not qualify as a sexual abuse of a minor aggravated felony under Estrada-Espinoza. Thanks to Zachary Nightingale.

Where a criminal offense by its elements requires the person to be under 16 and the defendant to be more than four years older, the conviction is categorically an aggravated felony. (See, e.g., California Penal Code 261.5(d) (person must be under 16, and the defendant at least 21 years of age.)

Previous Decisions. The federal statutory rape statute obviously does not cover all fact situations that can be described as sexual abuse of a minor. Sexual conduct with child younger than 12 years of age, or some nonconsensual sexual activity with a teenager, will be held to be sexual abuse of a minor. The opinion in Estrada-Espinoza does not address this issue, or limit the 2243 definition to cases involving consensual sex with teenagers. The court generally reviewed and affirmed a history of decisions finding that "abuse" requires harm, and that sexual activity is more likely to harm younger minors than older teenagers. It did not explicitly overturn precedent holding that a broadly defined "lewd act" with a child under the age of 14 is categorically an aggravated felony. (See, e.g., United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999).) Neither did it overturn opinions holding that statutes punishing less serious behavior, such as the California offense annoying or molesting a child are divisible. (United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004).) Immigration attorneys can argue that all prior decisions must be overruled, if they do not conform to the new Estrada-Espinoza definition of "sexual abuse of a minor," but criminal defense attorneys should continue to avoid pleading to offenses previously held to be sexual abuse of a minor until the law is clarified. Thanks to Kathy Brady for most of the analysis in this paragraph.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - WASHINGTON CONVICTION OF COMMUNICATING WITH A MINOR FOR IMMORAL PURPOSES HELD NOT TO BE SEXUAL ABUSE OF A MINOR UNDER A CATEGORICAL ANALYSIS, BUT WAS A DIVISIBLE STATUTE
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (9th Cir. July 11, 2005) (Washington conviction of communication with a minor for immoral purposes, in violation of Washington Revised Code 9.68A.090, was an aggravated felony that met the definition of "sexual abuse of a minor" under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), applying the modified categorical approach to a divisible statue, and therefore disqualified the noncitizen from eligibility for cancellation of removal).
http://caselaw.lp.findlaw.com/data2/circs/9th/0374010p.pdf

Other

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (July 11, 2005) (Washington conviction of communication with a minor for immoral purposes, in violation of Washington Revised Code section 9.68A.090, was not on its fact an aggravated felony because it did not categorically meet the definition of "sexual abuse of a minor" under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because the statute broadly included "immoral purposes" such as providing information on how to get an unlawful abortion, displaying pornography visible from a public thoroughfare, and allowing a minor onto the premises of a live erotic performance, which, while not commendable, were not abusive in nature), citing Pallares-Galan, 359 F.3d at 1101-02.
http://caselaw.lp.findlaw.com/data2/circs/9th/0374010p.pdf

     The case arose because Parrilla was denied eligibility to apply for "LPR Cancellation of Removal" as an aggravated felon. However, if his plea had been done differently, Parrilla might not even have been deportable. Even though CMIP constitutes a "crime involving moral tupitude (CIMT)," a ground distinct from SAM, long-term residents are not always deportable for a single CIMT.  Assuming Parrilla stands, Communication with a Minor For Immoral Purposes could be a safer alternative plea to more serious sex offenses that would be aggravated felonies as either "rape" or "sexual abuse of a minor."  This disposition will be safe, however, if (and only if) the record of conviction, including the information, judgment and sentence, and plea statement, is limited to the language of the statute and does not establish that the immoral purpose of the communication was to commit a specific offense that would be considered rape or sexual abuse of a minor.