(D)  Child of 16 or 17 Years of Age.  To, date no published case has found that statutory rape is an aggravated felony under the “sexual abuse of a minor” theory where the victim was 16 or 17 years old.[848]  It is therefore possible that this may constitute a safe haven.  Moreover, even where the child is younger, if the statute of conviction also penalizes sex with a 16- or 17-year-old, the offense may be considered divisible.  If so, and the record of conviction does not establish the age of the child, and the court is not permitted to go beyond the record of conviction to establish the age of the child, the conviction may constitute a safe haven.

 

Where the victim is 16 or 17 years old, counsel can argue sex does not constitute abuse.  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.[849]  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 . . . .”[850]

            When a court takes as its standard the “ordinary, common and contemporary meaning” of a word, sociological information, as was used in the classic “Brandeis briefs,” becomes relevant. This includes statistics regarding the number of youth of different age groups in the United States who have had sexual experiences,[851] 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.

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.[852]  The vast majority of men charged under this statute are identified because the young woman involved becomes pregnant and applies for welfare.  The statutory rape charge and conviction is used as a means of forcing the man to pay child support.[853]  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.

 

Fifth Circuit.  The Fifth Circuit has found that indecent exposure to a person under the age of 17 is an aggravated felony, even without physical contact.[854]

Seventh Circuit.  The Seventh Circuit recently found without analysis that an Illinois misdemeanor conviction for “criminal sexual abuse,” which requires “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,” was sexual abuse of a minor.[855]  It appears, however, that the defendant there did not argue that the crime did not constitute sexual abuse of a minor, relying instead on his assertion that he could not be found to be an aggravated felon based on a misdemeanor conviction — an argument that the court rejected.  Since the defendant did not argue this conviction substantively did not constitute sexual abuse of a minor, obviously the Seventh Circuit did not reject the argument that was not made. [856] 

Ninth Circuit.  In an unpublished case, the Ninth Circuit held that a California conviction of violating Penal Code § 261.5(c), which criminalizes sex with minors who are three years younger than the perpetrator, may not constitute aggravated felony sexual abuse of a minor under the categorical analysis, since the victim might be only one day younger than 18 years of age.[857]  “Even assuming California Penal Code § 261.5(c) is overly broad and fails the categorical test, Valdez-Camacho’s conviction nonetheless constitutes an aggravated felony under a modified categorical approach [since the complaint to which plea was entered established the victim’s age as 15, which constitutes sexual abuse of a minor under previous decisions].”   The court in Valdez-Camacho used the modified categorical analysis, and considered information from the record of conviction to find the victims were age 15 or younger and the defendants more than a few years older. 

[848] The Ninth Circuit found that statutory rape of a person under the age of 16 is an aggravated felony.  See United States v Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003) (in a case defining sexual abuse of a minor for purposes of the “crime of violence” enhancement under USSG § 2L1.2, court found conviction under a Virginia statute prohibiting sexual intercourse or oral sex with someone under the age of 16 is an aggravated felony). Immigration counsel may continue to raise the issue and attempt to distinguish Pereira-Salmeron and the even more strict United States v. Granbois, 376 F.3d 993, 996 (9th Cir. 2004) (touching a 15-year-old’s inner thigh through clothing is sexual abuse of a minor) in the Ninth Circuit, for example, because they are based on an interpretation of the definition of a crime of violence in the Sentencing Guidelines — but at the same time should pursue post-conviction relief to eliminate the conviction on a ground of legal invalidity.  If the victim was 16 or 17, or where the record of conviction did not show the age of the victim, these cases do not necessarily force a conclusion that the conviction is an aggravated felony.  Thanks to Kathy Brady for this analysis.

[849] 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.

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

[851] 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 fourteen-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.

[852] 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.”

[853] 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).

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

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

[856] 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).

[857] Valdez-Camacho v. Ashcroft, 110 Fed.Appx. 808, 2004 WL 2203948 (9th Cir. Sept. 29, 2004) (unpublished).

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).

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 - CRIME OF VIOLENCE - STATUTORY RAPE
United States v. Alvarado-Hernandez, ___ F.3d ___, 2006 WL 2621650 (5th Cir. Sept. 14, 2006) (Texas conviction for consensual sexual intercourse with a 14-year-old victim in violation of Penal Code 22.011(a)(2), met the common-sense definition of crime of violence, for purposes of imposing a sixteen-level upward adjustment for an illegal-reentry conviction under U.S.S.G. 2L1.2(b)(1)(A)(ii) since it fell within the generic, contemporary definition of "statutory rape" which is specifically listed as a "crime of violence" for this purpose).

Ninth Circuit

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 - 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 - 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
United States v. Lopez-Solis, __ F.3d __, 2006 WL 1360075 (9th Cir. May 19, 2006) (Tennessee conviction of statutory rape, in violation of Tennessee code 39-13-506, is not categorically "sexual abuse of a minor," and therefore not a "crime of violence" for purposes of illegal re-entry sentence enhancement; slight sexual penetration of a minor just under 18 by a 22 year old is not necessarily "abuse").
http://caselaw.lp.findlaw.com/data2/circs/9th/0310059p.pdf

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
There is currently a conflict in the Ninth Circuit between Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (California misdemeanor conviction of unlawful sexual intercourse with a minor, in violation of Penal Code 261.5(c), constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for removal purposes, since the full range of conduct defined by the criminal statute fell within the common meaning of "sexual abuse of a minor," as encompassing any offense that involves "the employment, use, persuasion, inducement, enticement or coercion of a child to engage in . . . sexually explicit conduct . . . ."), quoting Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995 (BIA 1999), following United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), and United States v. Lopez-Solis, 447 F.3d 1201 (9th Cir. 2006) (Tennessee conviction of statutory rape, in violation of Tennessee code 39-13-506, is not categorically "sexual abuse of a minor," and therefore not a "crime of violence" for purposes of illegal re-entry sentence enhancement; slight sexual penetration of a minor just under 18 by a 22 year old is not necessarily "abuse").

In Lopez-Solis, the court explained the seeming contradiction by saying that in Afridi, the Circuit court merely held that the BIA's intepretation (given them Chevron deference), was not contrary to the plain and sensible meaning of the INA. Lopez was a sentencing case, but this should not matter.

First, Lopez defined SAM by the common meaning, which they presumably do in the immigration context as well, so the language used is identical in both contexts and should have the same meaning in the immigration context.

Second, the IJ is supposed to follow the BIA caselaw unless there is Circuit law that (expressly) contradicts it, but once that happens, the Circuit law controls. Counsel can argue before the IJ that s/he should follow Lopez because that case is the most recent, detailed word on the statutory rape issue. Afridi should be taken as only lasting until Lopez was decided - the Ninth Circuit was merely deferring to the BIA (as required) until it developed its own, overriding, analysis. Because that overriding analysis now exists, the IJ and the BIA must now follow the Ninth Circuit.

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).