quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
B. The Aggravated Felony “Sexual Abuse of a Minor” <strong>and</strong> Other Immigration<br />
Consequences of Conviction of Sexual Conduct<br />
Conviction of an offense that is held to constitute “sexual abuse of a minor” is an<br />
aggravated felony. 166 There is no requirement that a sentence of a year or more be imposed to<br />
be an aggravated felony under this category. For further discussion, see Defending Immigrants<br />
in the Ninth Circuit, § 9.38 (www.ilrc.org).<br />
1. Immigration Consequences of Cali<strong>for</strong>nia Offenses Involving Sex with a Minor --<br />
Aggravated Felony, Crime Involving Moral Turpitude, Crime of Child Abuse<br />
a. Calif. P.C. §§ 261.5(c), 286(b)(1), 288a(b)(1), <strong>and</strong> 289(h), sexual conduct with<br />
a person under the age of 18<br />
In the Ninth Circuit, a conviction under these sections never constitutes an aggravated<br />
felony as sexual abuse of a minor. The Ninth Circuit en banc held that the definition of sexual<br />
abuse of a minor, at least in this context, requires the victim to be under the age of 16 <strong>and</strong> at least<br />
four years younger than the defendant. None of these sections require the victim to be under 16<br />
years of age, <strong>and</strong> while § 261.5(c) requires an age difference between victim <strong>and</strong> defendant, it is<br />
three years, not four. In<strong>for</strong>mation in individual’s reviewable record of conviction, e.g. that the<br />
victim was 15 <strong>and</strong> the perpetrator was 19, cannot be used to meet the age requirements. Estrada-<br />
Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc), cited with approval in<br />
Nijhawan v. Holder, 129 S.Ct. 2294, 2300 (2009).<br />
Example: Martin pleads guilty under P.C. § 261.5(c) to having consensual sex with his<br />
girlfriend at a time when he was 20 years old <strong>and</strong> she was 15 years old. Despite the fact that<br />
there is evidence in the reviewable record to the effect that the victim was under 16 <strong>and</strong> at<br />
least four years younger than the defendant, the conviction is not an aggravated felony as<br />
“sexual abuse of a minor.”<br />
However, counsel still should keep the age of the victim out of the reviewable record<br />
wherever possible. It is possible that this will be important in the future, if the legal definition of<br />
a crime of child abuse <strong>and</strong> a crime involving moral turpitude continue to evolve.<br />
Under current law, ICE (<strong>immigration</strong> prosecutors) will assert that these offenses are crimes<br />
involving moral turpitude, if they can obtain evidence, including testimony, that the defendant<br />
knew or should have known that the victim was under-age. Matter of Silva-Trevino, 24 I&N<br />
Dec. 687 (AG 2008). ICE is very likely to charge the offense as a categorical deportable crime<br />
of child abuse. While it is possible that the Ninth Circuit will not defer to the BIA’s view on<br />
either of these issues, counsel should conservatively assume that they will <strong>and</strong> advise of the risk.<br />
166 INA § 101(a)(43)(A), 8 USC § 1101(a)(43)(A).<br />
Immigrant Legal Resource Center N-103