(A) Consensual sexual contact with an older teenager does not necessarily constitute “abuse.”   In United States v. Baron-Medina, the Ninth Circuit ruled that a conviction of committing a lewd act with a child under 14[795] constitutes an aggravated felony as sexual abuse of a minor.[796]  The court declined to define the common-law term according to the federal criminal statutory definition of sexual abuse of a minor.  The court stated “Rather, we must interpret the undefined term ‘sexual abuse of a minor’ by ‘employing the ordinary, contemporary, and common meaning of the words that Congress used’ . . . .” [797]  Several circuits have adopted a similar test. 

In Baron-Medina, the court used a categorical analysis of the offense, finding that California Penal Code § 288(a) 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 touching that appeared “innocent” that was “innocently and warmly received” if it was effected with lewd intent, and could even include the defendant persuading the child to touch him- or herself, but with no physical contact between the defendant and the child.

 

Nevertheless the court found that all conduct under § 288(a) falls within the category of sexual abuse of a minor.  The conduct falls within the “common, everyday meanings” of the words “sexual” and “minor.”  In defining abuse, the court found simply that “[t]he use of young children as objects of sexual gratification constitutes an abuse.”  Even consensual sex is sexual abuse when it is with a child “too young to understand the nature of the advances,” which in this case was under the age of 14.[798]

 

            Counsel can argue that where older youth are concerned, the rationale of Baron-Medina does not apply.  A 16- and 19-year-old girlfriend and boyfriend or common law husband and wife who have sex can be convicted in many states. But that conduct does not necessarily meet the ordinary and contemporary meaning of “abuse,” i.e., maltreatment, ill-use, and damage.[799]  See § 7.101, infra.  In a different legal context, the Seventh Circuit held that sexual intercourse with a 15-year-old is not an aggravated felony as a “crime of violence,” although such conduct with a 13-year-old would be.[800]   Counsel must thoroughly research the law in the circuit to see if courts already have defined certain conduct with older youth to constitute sexual abuse.  Many of the published cases dealing with sexual abuse of a minor do not discuss the issue or involved younger children.

             (B)  Minor conduct, even if it involves sexual intent, does not always rise to the level of “abuse.”  In United States v Pallares-Galan, the Ninth Circuit set out further standards for determining when conduct with sexual intent rises to the level of sexual “abuse.”  The court held that for sentencing purposes, a conviction of annoying or molesting child under 18[801] was a divisible statute on the issue of whether a conviction under the statute would qualify as sexual abuse of a minor,[802] and concluded that “abuse” required some form of harm to the child.[803]  In making this decision, the Ninth Circuit defined the terms “sexual abuse” and “abuse” as applied to that section.  The case also sheds new light on what may be considered to constitute part of the record of conviction.  The Ninth Circuit held that the California statute penalizing annoying or molesting a child under 18, a misdemeanor offense, punished some offenses that would qualify as “sexual abuse of a minor” and others that would not.  Therefore, without a clear indication from the record of conviction that the noncitizen pleaded guilty to acts that would constitute “sexual abuse,” a conviction under that section will not be an aggravated felony.  The Second Circuit came to a similar conclusion.[804]

            As defined by the statute and subsequent case law, California Penal Code § 647.6(a) punishes, “[e]very person who annoys or molests any child under the age of 18 . . . .”  A conviction under this section requires “an act objectively and unhesitatingly viewed as irritating or disturbing, prompted by an abnormal sexual interest in children.”[805]  The term “molest” is a general synonym for “annoy.”[806]  Annoy means, “to disturb or irritate, especially by continued or repeated acts; to weary or trouble; to irk; to offend . . . .”[807]  To molest means, “to interfere with or meddle with unwarrantably so as to injure or disturb.”[808]  “Annoyance or molestation signifies something that works hurt, inconvenience, or damage.”[809]

 

            Looking to the “ordinary, contemporary, and common meaning of the words Congress used,” the Ninth Circuit found the definition of “sexual abuse” to be, “illegal sexual acts performed against a minor by a parent, guardian, relative, or acquaintance.”[810]  The  court defined “abuse” as, “misuse . . . to use or treat so as to injure, hurt, or damage . . . to commit indecent assault on . . . the act of violating sexually . . . [and] rape or indecent assault not amounting to rape.”[811]  Comparing these definitions, the court concluded that a person could annoy or molest a child under 18 without causing injury, hurt, or damage to the child.[812]  The court found that the mere use of words, while possibly annoying, do not necessarily constitute sexual abuse.[813]  The court also found that “mere solicitation of a sexual act” would not necessarily constitute sexual abuse.[814]

 

            The court identified a number of instances in which a defendant had been convicted under California Penal Code § 647.6(a) for acts that would not constitute “sexual abuse” as defined by the court.  These acts included “repeatedly driving past a young girl, looking at her, and making hand and facial gestures at her,  . . . offer[ing] a thirteen year old boy a ride home and unsuccessfully solicit[ing] a sexual act from him while the two were in the vehicle . . . .”[815]  The court additionally noted that a person urinating in a public place, where a child happens to see him, could be convicted under California Penal Code § 647.6(a), but that act would not qualify as “sexual abuse.”[816]

            The court rejected the ICE argument that all offenses that require the defendant be motivated by a desire for sexual gratification qualify as sexual abuse.  The court found that sexual abuse “requires more than improper motivation; it requires conduct that is abusive.”[817]

 

            The court was not specific about what acts can and cannot constitute sexual abuse of a minor, and did not state that sexual abuse cannot be committed by words alone.  However, the court does require that the child have been somehow injured, hurt or damaged by the actor’s conduct, and not merely disturbed, irritated, or inconvenienced.

 

            Unfortunately, several months later a Ninth Circuit panel failed even to discuss Pallares-Galan in holding that a conviction under a statute that could be violated by touching a 15-year-old’s thigh through clothing was sexual abuse of a minor. This illustrates the illogical results that can occur absent the sensible test set out in Pallares-Galan.  In United States v. Granbois, [818] the court defined “sexual abuse of a minor” for purposes of the “crimes of violence” category under federal sentencing Guidelines.[819]  First, the Court cited Baron-Medina for the proposition that any sexually motivated conduct, even without physical touching, directed toward a child under the age of 13 is sexual abuse of a minor.  Next it cited United States v. Pereira Salmon, another Ninth Circuit case, that held that a Virginia statute prohibiting sexual intercourse or oral sex with a child under the age of 16 is sexual abuse of a minor.[820]  The Granbois court concluded that it was bound by Pereira-Salmeron to find that any sexual conduct, no matter how minor, with a child under age 16 and at least four years younger than the defendant is sexual abuse of a minor. 

            The holding in Granbois is troubling for 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, when the victim was 15 years old, not 12 years old.   Second, Granbois did not discuss the Ninth Circuit decision in United States v. Pallares-Galan. Therefore, it did not take the opportunity even to discuss whether, in the contemporary and common understanding of sexual behavior, a boyfriend’s touching his 15-year-old girlfriend’s inner thigh through clothing would be abusive, in the sense of causing damage to, the 15-year old.

 

            Likewise, if the court in Baron-Medina had had considered the principles set out in Pallares-Galan, it might have reached a different result.[821]  While Baron-Medina clearly establishes that a violation of California Penal Code § 288(a) would constitute a crime involving moral turpitude, it did not conduct a careful examination the term “abuse” by reference to the common, everyday meaning of the term, as was done in Pallares-Galan.[822]

 

Applying the definition in Pallares-Galan, California Penal Code § 288(a) is a divisible statute, and a conviction under that statute cannot sustain a finding that the respondent has been convicted of a sexual abuse of a minor aggravated felony without examining the record of conviction and finding that it shows the defendant was convicted of “abuse.”

 

In Baron-Medina, the Ninth Circuit described the minimum conduct required for conviction under California Penal Code § 288(a):

 

Section 288(a) has two elements: (a) the touching of an underage child’s body (b) with a sexual intent.  People v. Martinez, 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037, 1042-1043 (1995).  However, under California law, the character of the touching, though perhaps circumstantially relevant to prove intent, is otherwise immaterial.  Martinez, 45 Cal.Rptr.2d 905, 903 P.2d at 1048.  Even an “innocuous” touching, “innocently and warmly received,” violates Section 288(a) if effected with lewd intent.  People v. Lopez, 19 Cal.4th 282, 79 Cal.Rptr.2d 1995, 965 P.2d 713, 717-718 (1998).  In fact, Section 288(a) can be violated by a person who does not himself touch the child, if the person, with the requisite intent, coerces the child to touch himself.  See People v. Imler, 9 Cal.App.4th 1178, 1182, 11 Cal.Rptr.2d 915, 917 (Cal.App. 2 Dist. 1992).[823]

Section 288(a) may therefore be violated by any touching accomplished with the intent of arousing the sexual desires of either the defendant or the child.  “Any part of the body may be the object of a sexual fetish.  Any touch, in fulfillment of such a fetish, is harmful to a child and prohibited by the statute.”[824]  Even an apparently innocent touching of a child’s hair, if done with sexual intent, is an act sufficient to sustain a conviction under California Penal Code § 288(a).[825]

 

Clearly, because a conviction under this statute may be sustained on the basis of any touching, however innocuous, a conviction may be sustained regardless of whether the touching resulted in “injur[y], hurt, or damage” to the victim.[826]  The motivation that underlies the conduct is irrelevant to the question of whether the conduct constitutes abuse.  It is rather the conduct itself that must be abusive.[827]

 

As established by California state case law, a person with a hand-fetish would be in violation of this statute by merely shaking hands with a child, as long as it was done with sexual intent.  This would be true even if neither the child, nor any other person present at the time of the act, was aware that the touch was done with the intent to satisfy the hand-fetishist’s sexual desires, and even if the hand shake caused absolutely no “injury, hurt or damage,” physical or otherwise, to the child.  Not every violation of California Penal Code § 288(a), therefore, necessarily encompasses conduct that could be called “abusive” under Pallares-Galan. 

 

[795] California Penal Code § 288(a).

[796] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999).  California Penal Code § 288(a) provides that: “Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this Code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.”

[797] 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).

[798] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999).

[799] In a subsequent case, , the Ninth Circuit defined “abuse” in this context as “misuse . . . to use or treat so as to injure, hurt, or damage . . . .”  United States v Pallares-Galan, 359 F.3d at 1100 (citing Webster’s Third New International Dictionary 9 (3d Ed. 1981).  The Eleventh Circuit has defined “sexual abuse of a minor” as a “perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” United States v. Padilla-Reyes, 247 F.3d at 1163.

[800] See Chue Xiong v. INS, 173 F.3d 601 (7th Cir., 1999) (consensual sex between an 18 year-old and his 15-year old girlfriend is not an aggravated felony as a crime of violence under 18 U.S.C. § 16), distinguishing United States v. Shannon, 110 F.3d 382, 388 (7th Cir., 1997) (consensual sex with 13-year old is such an aggravated felony).

[801] California Penal Code § 647.6(a).

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

[803] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. February 20, 2004). 

[804] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (Delaware conviction of unlawful sexual contact in the third degree under Del. C. § 767, penalizing “sexual contact with another person [with knowledge] that the contact is either offensive to the victim or occurs without the victim’s consent,” does not constitute sexual abuse of a minor under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of triggering deportability).

[805] People v. Lopez, 19 Cal.4th 282, 289 (1998). 

[806] People v. Pallares, 112 Cal.App.2d Supp. 895, 901 (1952). 

[807] Webster’s New International Dictionary, 2d ed. 

[808] Ibid.

[809] People v. Lopez, 19 Cal.4th at 290 (1998) (emphasis supplied). 

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

[811] Id. (citing Webster’s Third New International Dictionary 9 (3d Ed. 1981). 

[812] United States v. Pallares-Galan, 359 F.3d at 1101 (9th Cir. 2004).

[813] Ibid.

[814] Id. at 1101-1102.

[815] Id. at 1101. 

[816] Ibid.

[817] Id. at 1101-1102.

[818] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004).  For information on definitions under USSG § 2L1.2, see Note at the beginning of § 7.96, supra.

[819] USSG § 2L1.2 (2002). 

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

[821] United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (“[t]he use of young children for the gratification of sexual desires constitutes an abuse . . . .  The use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order.”).

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

[823] Baron-Medina, 187 F.3d at 1147 (9th Cir. 1999). 

[824] People v. Diaz, 49 Cal.Rptr.2d 252, 254 (1996).

[825] People v. Sharp 36 Cal.Rptr.2d 117 (1994), cert. denied, 514 U.S. 1130, 115 S.Ct. 2006 (1995). 

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

[827] United States v. Pallares-Galan, 359 F.3d at 1101 (9th Cir. 2004).

First Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD ENDANGERMENT
Campbell v. Holder, 698 F.3d 29, *31 (1st Cir. Oct. 19, 2012) (Connecticut conviction of risk of injury to a minor under of the Connecticut General Statutes 53"21(a)(1) (penalizing [a]ny person who ... wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child...], does not categorically constitute aggravated felony sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the statute includes non-sexual acts such as providing alcohol to a minor).

Third Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - ENDANGERING WELFARE OF CHILDREN
Stubbs v. Attorney General, ___ F.3d ___, 2006 WL 1776462 (3d Cir. Jun. 29, 2006) (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, because the portion of the statute related to sexual conduct does not require that the conduct with a child). http://caselaw.lp.findlaw.com/data2/circs/3rd/044316p.pdf

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11(a)(1) not categorically sexual abuse of a minor for illegal re-entry sentencing purposes; "Subsection (a)(1), then, prohibits consensual sexual contact between two persons who are a day under 17, and of the same gender. This does not fit the ordinary, contemporary, common meaning of sexual abuse of a minor.")

Ninth Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD MOLESTATION
United States v. Martinez, ___ F.3d ___, ___, 2015 WL 3406178 (9th Cir. May 28, 2015) (Washington conviction of third-degree child molestation, in violation of Wash. Rev.Code 9A.44.089, is categorically not an aggravated felony sexual abuse of a minor offense, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the offense is not divisible and includes touching over clothing; sexual abuse of a minor requires skin on skin contact); see State v. Soonalole, 992 P.2d 541, 544 & n.13 (Wash.Ct.App.2000) (holding that the fondling and thigh rubbing over the victim's clothes constituted a separate act of third-degree child molestation under state criminal law for double jeopardy purposes); see also United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as amended (holding that a California statute prohibiting lewd and lascivious acts on a child, under Penal Code 288(a), was categorically broader than the generic definition for sexual abuse of a minor because [l]ewd touching [under the state statute] can occur through a victim's clothing and can involve any part of the victim's body).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL CONTACT
Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. May 20, 2010) (Arizona conviction for violation of ARS 14-1405, sexual conduct with a minor under 18, is not categorically an aggravated felony for immigration purposes, since it does not meet the generic federal definition of "sexual abuse of a minor"), following Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
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 a "sexual abuse of a minor," and therefore did not qualify as a crime of violence for illegal re-entry sentencing purposes, since sexual conduct with a 15 year old is not per se abusive), following Pelayo-Garcia v. Holder, 589 F.3d 1010, 1015-16 (9th Cir. 2009).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) ("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.") (internal quotation marks omitted), quoting 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)).

POST CON RELIEF - FEDERAL - AEDPA STATUTE OF LIMITATIONS - STATE CONVICTIONS
Allen v. Siebert, 128 S.Ct. 2 (9th Cir. Nov. 5, 2007) (when a postconviction petition is untimely under state law, "that [is] the end of the matter" for purposes of tolling the AEDPA's 1-year statute of limitations for filing a federal habeas petition, and the inquiry does not turn on the nature of the particular time limit relied upon by the state court at issue).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - PUBLIC INDECENCY TO CHILD
Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS 13-1001 and 13-1403(B), includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U); statute includes acts that do not involve touching or knowledge of the child, and therefore do not involve sexual abuse of a minor). Note: the court examined Arizona state caselaw, applying Duenas.

AGGRAVATED FELONY SEXUAL ABUSE OF A MINOR DEFINITION OF SEXUAL ABUSE
United States v. Sinerius, __ F.3d __, 2007 WL 2728760 (9th Cir. Sept. 20, 2007) (sexual abuse is defined by the common meaning of the terms, rather than by reference to a federal statute, therefore sexual abuse includes intimate touching through clothing, even though federal law requires skin-on-skin contact).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONVICTION DID NOT CATEGORICALLY CONSTITUTE SEXUAL ABUSE OF A MINOR BECAUSE THE ELEMENTS DID NOT REQUIRE PSYCHOLOGICAL OR PHYSICAL ABUSE
United States v. Baza-Martinez, ___ F.3d ___, 2006 WL 2729691 (9th Cir. Sept. 26, 2006) (North Carolina conviction of taking indecent liberties with a child, in violation of N.C.G.S. 14-202.1 [take or attempt an immoral, improper, or indecent liberty with a child under 16 by defendant more than five years older, for purpose of arousing or gratifying sexual desire, which can be committed by mere words], was not categorically sexual abuse of a minor, because the statute did not require as an element the infliction of psychological or physical harm to the minor, and therefore did not constitute a crime of violence under USSG 2L1.2(b)(1)(A)(ii) for purposes of imposing a 16-level enhancement of sentence for illegal reentry), disagreeing with United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005); Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001) (interpreting same statute of conviction but reaching opposite conclusion).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - DEFINITION OF ABUSE
United States v. Baza-Martinez, ___ F.3d ___, 2006 WL 2729691 (9th Cir. Sept. 26, 2006) (to constitute "abuse," in the context of sexual abuse of a minor, the essential elements of the statute of conviction must necessarily require harm or injury, whether psychological or physical, be inflicted on the minor).