On January 9, 2015, in a long and complex opinion, the Board of Immigration Appeals (BIA) found that a California statutory rape conviction under Penal Code Section 261.5(c), which requires sexual intercourse with a victim under 18 years old who is more than 3 years younger than the respondent (and who is not the spouse of the perpetrator), can reasonably be considered “sexual abuse of a minor” for purposes of qualifying as an aggravated felony under § 101(a)(43)(A) of the Act. Explaining that any relevant offense constitutes sexual abuse of a minor if it meets the definition of “sexual abuse” set forth in Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), the BIA held that these crimes refer to statutory rape, i.e., unlawful sexual intercourse with a minor under the age of consent specified by a given state statute. However, because the U.S. Supreme Court opinion in Descamps v. U.S., 133 S.Ct. 2276 (2013) now limits the Board’s use of the ‘modified categorical approach’ to determine whether a particular crime is an aggravated felony and whether a criminal statute qualifies as ‘divisible’, the BIA now follows the law of each circuit as to divisibility. As this case arose in the Sixth Circuit, the BIA found Section 261.5(c) not divisible as to the definition of “sexual abuse of a minor” and held that in this circumstance it cannot consider the age of the victim or the actual age difference between the parties, limiting itself solely to “the minimum conduct that has a realistic probability of being prosecuted under the California statute, citing to Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). Refusing to follow the Ninth Circuit’s holding in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (because the offense prohibited by Section 261.5(c) is broader than the generic definition of “sexual abuse of a minor”, for the statute to qualify as statutory rape it may never include 16- or 17-year olds as victims and must require at least a 4-year age difference between the victim and perpetrator), the Board instead relied on 7th Circuit precedent to find it had administrative adjudicative authority to define “statutory rape of a minor” and that this determination was entitled to Chevron deference. Further, finding that Congress did not intend to exclude from the aggravated felony definition all state statutes defining sexual abuse of a minor where the victim is 16 or 17, the BIA held that an age differential of a few years can be very significant when a minor is involved and is the “key consideration” in determining whether sexual intercourse with that age group can be viewed as categorically “abusive”. As a result, the BIA recognized a distinction between sexual offenses involving older adolescents and those involving younger children when assessing whether consensual intercourse between peers is “abusive” and thus constitutes “sexual abuse of a minor”. The Board stated an offense involving 16- or 17-year old victims (which presumes a lack of consent) cannot categorically constitute sexual “abuse” without requiring an age difference. The opinion emphasized it is limited to sexual abuse statutes that include 16- or 17-year olds as victims and do not involve lack of consent as an element of the offense; it also does not apply to other types of sexual crimes. Ultimately, the BIA found it could not discern whether a majority consensus exists among the states with respect to the “element components” defining sex crimes against children, noting that many jurisdictions do not use the term “statutory rape”, most states use multiple provisions to categorize the offense, and laws differ as to the application of strict liability versus the availability of a mens rea defense. Therefore, these state statutes must be evaluated individually. The BIA thus concluded that, as a meaningful age difference is required where victims can be 16- or 17-years old and Section 261.5(c) requires the minor be more than 3 years younger than the perpetrator, the California Penal Code requires “a sufficient age differential” for the offense to qualify as an aggravated felony sexual abuse of a minor conviction. Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015).
Immigration Law
