BIA: Sex with Minor More than Three Years Younger is Aggravated Felony

13 Jan

Case: Matter of Juan Esquivel-Quintana, 26 I&N Dec. 469, BIA, January 9, 2015

Holding: The offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be “more than three years younger” than the perpetrator, categorically constitutes “sexual abuse of a minor” and is therefore an aggravated felony under section 101(a)(43)(A) of the INA.

Analysis: This opinion makes clear that the BIA is still struggling to come to terms with the Supreme Court’s decision in Descamps. Traditionally in immigration law, the BIA applied the “categorical approach” to statutory interpretation, which was very friendly to immigrants. A criminal offense was only deportable if it was “categorically” so, meaning every instance of the offense was deportable. If a criminal offense potentially encompassed conduct that was not deportable under the INA, then the offense was not deportable, regardless of an alien’s conduct in any specific case. Apparently fed up with not being able to “look behind” the offense, the BIA adopted the “modified categorical approach” of Silva-Trevino that allowed them to divide statutes up and examine records of conviction.

The Supreme Court put the BIA back into the box of the categorical approach in Descamps, ruling that divisible statutes are only those with clearly distinct, enumerated parts. So, what does the BIA do when it cannot divide statutes or look at records from the case, yet is confronted with a standard like “sexual abuse of a minor”, in which the states, in the BIA’s words, “categorize and define sex crimes against children in many different ways”? If the BIA can only include those crimes which categorically involve sexual abuse of a minor, a lot of deportable conduct would be excluded.

In this case, the BIA finds that statutory rape is categorically “sexual abuse of a minor” if there is more than three years differential between the perpetrator and the victim. It so happens that the California statute at issue defines the offense in that way. The BIA acknowledges that not every state does the same, so “we must, as a practical matter, evaluate statutes individually and define ‘sexual abuse of a minor’ under the Act on a case-by-case basis.” This is an invitation to a lot more challenges from other states.

It also seems to me that the BIA actually got the categorical approach wrong in their analysis. The BIA finds, “The respondent argues that in applying this categorical analysis, the Board must hold that unlawful intercourse with a minor more than 3 years younger than the perpetrator in violation of section 261.5(c) of the California Penal Code is categorically not ‘sexual abuse of a minor’ under section 101(a)(43)(A) of the Act.” In answering this question, the BIA concludes, “Specifically, we are not prepared to hold that a 16- or 17-year-old categorically cannot be the victim of sexual abuse.” But, the burden is on the government to show that a crime categorically is an aggravated felony, not for the respondent to show that an offense is categorically not deportable. So, he should not have to show that a 16- or 17- year categorically cannot be the victim of sexual abuse. He must simply show that sometimes they are not even with a three-year differential in a consensual sexual relationship.

Nevertheless, this case gives a glimpse at how the BIA is going to deal with ambiguous statutes in a post-Descamps world. And it isn’t pretty.

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