Safe Havens

 

This category requires sexual abuse, so there must be some element involving sex.  The Fifth Circuit applies a categorical approach in determining whether an offense constitutes a “sexual abuse of a minor” aggravated felony.  In United States v. Zavala-Sustaita,[781] an illegal re-entry case, the court analyzed a conviction under a Texas statute 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 . . . .”[782]  It stated: “[W]e employ a categorical approach, considering whether the elements of a § 21.11(a)(2) offense describe ‘sexual abuse of a minor’ rather than whether Zavala’s specific conduct constituted ‘sexual abuse of a minor’.”[783]

 

            The Zavala Court refused to read the phrase “sexual abuse of a minor” narrowly, but in determining 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.”[784]  The court held that the Texas offense fell within “sexual abuse of a minor,” finding that it 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.[785]

 

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.[786]  In so holding, the First Circuit rejected the argument that the statute did not require as an element intentional touching of a sexual nature, finding that the reported cases all involved intentional sexual touching as an element of the offense.  The court also 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.”[787]  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 “[I]t 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.”[788]  This is an improper repudiation of the categorical analysis required in making the aggravated felony determination.

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 United States Supreme Court, in Shepard v. United States,[789] overruled United States v. Harris,[790] and reversed United States v. Shepard. [791]  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.[792]

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

[782] Texas Penal Code § 21.11(a)(2).

[783] Id. at 602, citing Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000) and Taylor v. United States, 495 U.S. 575, 599-602 (1990).

[784] Id. at 604.

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

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

[787] 18 U.S.C. § 2246(3) (emphasis supplied).

[788] Emile v. INS, 244 F.3d 183, 188 (1st Cir. 2001) (consensual sex between an 18 year old and a 15 year old is not a crime of violence under 18 U.S.C. § 16).

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

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

[791] United States v. Shepard, 231 F.3d 56 (1st Cir. 2000), rev’d Shepard v. United States, ___U.S.___, 125 S.Ct. 254 (March 7, 2005).

[792] Thanks to Dan Kesselbrenner for this analysis.