Under INA 101(a)(43)(A), sexual abuse of a minor is an aggravated felony. A conviction for an offense classified as an aggravated felony would disqualify an alien from most immigration benefits or relief. A common problem is how to determine whether a state conviction constitutes an aggravated felony within the meaning of INA 101(a)(43)(A).
Recently, in Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015), the Board of Immigration Appeals (BIA) held that a conviction under California Penal Code (PC) 261.5(c) constitutes sexual abuse of a minor under INA 101(a)(43)(A). Esquivel-Quintana expressly rejected the finding of the Ninth Circuit Court of Appeals in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008), that PC 261.5(c) does not constitute sexual abuse of a minor.
The BIA in Esquivel-Quintana was not bound by the Ninth Circuit’s precedent in Estrada-Espinoza because the matter before the BIA originated from the jurisdiction of the Sixth Circuit, which had not yet decided on the issue. The BIA instead adopted the Seventh Circuit’s decision in Velasco-Giron v. Holder, 768 F.3d 723 (7th Cir. 2014), which also held that a violation of PC 261.5(c) constitutes sexual abuse of a minor.
To understand what caused these conflicting opinions, we have to retrace the process for determining whether a state criminal conviction constitutes an aggravated felony. Under the categorical approach, the courts must compare the elements of the state statute of conviction with the federal generic definition of the crime. Thus, if the conduct prohibited by PC 261.5(c) is broader than the federal definition of sexual abuse of a minor, then PC 261.5(c) would not qualify as sexual abuse of a minor.
The BIA and the Ninth Circuit arrived at different conclusions because each one used a different federal definition.
In Estrada-Espinoza, the Ninth Circuit adopted 18 USC 2243(a) as the federal definition of sexual abuse of a minor. 18 USC 2243(a), which is entitled “sexual abuse of a minor or ward” and is found in the chapter on sexual abuse, prohibits any sexual act with a person who: (1) is at least 12 years of age but has not attained the age of 16 years; and (2) is at least 4 years younger than the offender. On the other hand, PC 261.5(c) prohibits any unlawful sexual intercourse: (1) with a minor, i.e. one who is under 18; and (2) who is more than 3 years younger than the offender. Since PC 261.5(c) requires an age difference of over 3 years, it is broader than18 USC 2243(a), which requires an age difference of 4 years. Thus, the Ninth Circuit concluded that PC 261.5(c) does not constitute sexual abuse of a minor.
In Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), the BIA used 18 USC 3509(a)(8) as the federal definition of sexual abuse of a minor. 18 USC 3509(a)(8) defines sexual abuse as the employment, use, persuasion, inducement, enticement, or coercion of a child to engage or assist another in sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children. Thus, the BIA in Rodriguez-Rodriguez found that a conviction under Texas Penal Code Annotated 21.11(a)(2) for indecency with a child by exposure constitutes sexual abuse of a minor.
Esquivel-Quintana and Velasco-Giron both followed Rodriguez-Rodriguez in adopting 18 USC 3509(a)(8) as the federal definition of sexual abuse of a minor. But is 18 USC 3509(a)(8) the proper basis for defining the federal offense?
The Ninth Circuit noted that 18 USC 3509(a)(8) does not define a crime but merely addresses the rights of child victims and witnesses. In fact, 18 USC 3509(a)(8) is entitled “child victims’ and child witnesses’ rights” and is found in the chapter on witnesses and evidence.
One of the dissenting opinions in Rodriguez-Rodriguez pointed out that 18 USC 3509(a)(8) is a social welfare provision that protects children in a wide variety of situations. This dissent also explained that since the BIA was not interpreting a law that confers rights but was determining the extent to which a conviction will be treated as an aggravated felony, then the appropriate reference point was 18 USC 2243(a).
The adoption of 18 USC 3509(a)(8) would broaden the scope of sexual abuse of a minor to include non-contact offenses such as indecent exposure while the use of18 USC 2243(a) would confine the offense only to explicit sexual acts or contact offenses.
The Seventh Circuit in Velasco-Giron believes that the BIA had the discretion to choose 18 USC 3509(a)(8) as the federal definition and this choice must be respected. The BIA in Rodriguez-Rodriguez believes that the intent of Congress was to provide a comprehensive scheme to cover all crimes against children including non-contact offenses. Hence, it sees 18 USC 3509(a)(8) as a more complete and reasonable interpretation of sexual abuse of a minor.
I find the Ninth Circuit’s reasoning to be more persuasive but it remains to be seen whether other circuits will follow this path.
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Charles Medina practices immigration law. Visit his website at medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.
