quick reference chart and notes for determining immigration - ILRC

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