BIA Finds Statutory Rape Offense to be Crime of Child Abuse

The Board of Immigration Appeals has determined that a Tennessee statutory rape conviction is a crime of child abuse, even though it includes victims over age 16. The Board concluded t that section 237(a)(2)(E)(i) covers a broader range of criminal conduct than the “sexual abuse of a minor” aggravated felony provision. “Thus, we conclude that the minimum criminal conduct proscribed by the respondent’s statute of conviction—sexual penetration between a victim who is 17 years old and a perpetrator who is at least 27 years old, committed with a mens rea of recklessness—necessarily involves maltreatment or impairment of a child’s physical or mental well-being and falls within the generic definition of a crime of child abuse.”

The full text of Matter of Aguilar-Barajas can be found here:

https://www.justice.gov/eoir/page/file/1419101/download

Eleventh Circuit Finds NY Sexual Misconduct Conviction not Rape Aggravated Felony

The Eleventh Circuit has determined that a New York conviction for sexual misconduct is not categorically a rape aggravated felony. The court declined to determine if the conviction - which covers both statutory and forcible rape offenses - is divisible. Assuming divisibility, the court found that the complaint did not establish whether the petitioner was convicted of a forcible or statutory rape offense. The complaint alleged that he engaged in both types of rape, and the plea itself did not specify to which form of rape he pled.

The full text of George v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201814000.pdf

BIA Rules that Statutory Rape can be a CIMT Even if Statute Requires no Culpable Mental State about the Victim's Age

Pedro Jimenez-Cedillo was convicted of sexual solicitation of a minor in violation of section 3-324 of the Maryland Criminal Law.  Jimenez-Ceillo argued that his state statutes of conviction reach consensual sexual conduct and do not require that a violator possess any culpable mental state regarding the age of the victim. The Department of Homeland Security argued that although the Maryland law lacks these elements, the offense is a categorical crime involving moral turpitude because all violations of the statutes necessarily involve either a very young victim—that is, a child under 14 years of age—or a substantial age difference between an adult perpetrator and a minor victim under the age of 16.  "While we held in Matter of Silva-Trevino that moral turpitude was inherent in a sexual offense against a minor if an alien knew or should have known that the victim was a minor, our decision did not foreclose the possibility that moral turpitude will inhere in some crimes, even if the relevant statute lacks an element that requires the perpetrator to have some culpable mental state regarding the victim’s age."  "We therefore clarify our decision in Matter of Silva-Trevino and now hold that a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child." "[S]ection 3-307(a)(3) of the Maryland Criminal Law, the victim is much younger (no older than 13) and the perpetrator must be at least 4 years older. While sections 3-307(a)(4) and (5) reach relatively older victims (under 16 years of age), these provisions also require that the perpetrator be an adult who is significantly older than the victim—specifically, at least 6 years older. We therefore conclude that all of the conduct proscribed by section 3-307 categorically fits within the generic definition of a crime involving moral turpitude.  Finally, we note that a defendant may be convicted under section 3-324(b) for knowingly soliciting a law enforcement officer who is posing as a minor to engage in sexual activity. We understand such an act to be equivalent to an attempt to engage an actual minor in unlawful sexual activity."

The full text of Matter of Jimenez-Cedillo can be found here:

https://www.justice.gov/eoir/page/file/955631/download

The BIA Finds that California Statutory Rape is Sexual Abuse of a Minor; Disagrees with the Ninth Circuit

Today, the Board of Immigration Appeals (BIA), addressed one of California's statutory rape provisions: California Penal Code (CPC) 261.5(c), which criminalizes sexual intercourse between an adult a minor, when there is at least a 3 year age gap between the minor and the adult.  Notably, the Ninth Circuit had previously addressed whether this statute qualified as a sexual abuse of a minor aggravated felony in Estrada-Espinoza v. Mukasey, and found that it was not, in part because it required only a 3-year age gap, and comparable federal crimes required a 4-year age gap.  In addition, the federal law did not address intercourse with minors ages 17 and 18, and the California statute did.  Thus, the Ninth Circuit determined that the statute was not a categorical match to the federal definition of sexual abuse of a minor.  In today's case, the BIA disagreed.  It determined that sexual abuse of a minor can include minors who are 16 and 17 years old, so long as the statute contains a "meaningful age differential" between the minor and the adult.  The BIA then went on to find that CPC 261.5(c) is a categorical match the generic definition of sexual abuse of a minor.  Because the case at issue arose in the Sixth Circuit, the BIA did not follow Estrada-Espinoza, though it recognized that in the Ninth Circuit, that case would still apply.  

Read the full text of Matter of Esquivel-Quintana here: http://www.justice.gov/eoir/vll/intdec/vol26/3824.pdf