The Second Circuit has addressed the definition of a sexual abuse of a minor aggravated felony, taking into account recent Supreme Court precedent on the topic. The court determined that a conviction must require knowing or purposeful conduct to qualify as a sexual abuse of a minor aggravated felony. Turning to the conviction at issue (New York’s criminal sexual act in the second degree, which criminalizes oral or anal sexual conduct with a victim under fifteen years old), the court noted that the statute did not have an explicit mens rea requirement. However, the court concluded that such conduct cannot occur without the perpetrator’s knowledge or intent to commit the criminalized sexual conduct. The court also rejected the petitioner’s argument that New York’s lack of a mistake of age defense transforms the statute into a strict liability offense, outside the scope of the definition of a sexual abuse of a minor aggravated felony. In so doing, the court noted that at the time Congress added the sexual abuse of a minor aggravated felony ground, most jurisdictions did not have a mistake of age defense to similar offenses. Thus, the court concluded that a New York conviction for criminal sexual act in the second degree is a categorial match to the definition of a sexual abuse of a minor aggravated felony.
The full text of Acevedo v. Barr can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/28/doc/17-3519_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/07812bd0-88af-49f5-9682-1c2732ecc8c3/28/hilite/