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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Non-consensual sex meets the test for “sexual abuse” because it is likely to be considered to cause emotional or physical harm to the victim. See discussion of “harm” test in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009). (Further, see discussion below of this offense as a crime of violence, deportable crime of child abuse and crime of domestic violence, and crime involving moral turpitude.) Regarding proof that the victim was a minor, it is likely that Arizona immigration judges will find that a record of conviction that specifies that the victim was under 18 will prove the victim was a minor. Earlier law held that if an offense requires only that the victim be over age 15, evidence in the record that the victim was some other specific age could not be considered. See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. 2010). In 2011 the Ninth Circuit held that an IJ may consider a fact from the record of conviction that is not literally an element of the offense, as long as the fact is necessary to establish an element of the offense. United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), overruling in part Estrada- Espinoza, supra; see Practice Advisories on Aguila-Montes de Oca at www.ilrc.org/crimes. ICE will argue that because a statement of the victim’s specific age is necessary to establish that the age was over 15, such evidence from the record can be considered. Immigration counsel will contest this and might win at the Ninth Circuit, but criminal defense counsel must assume that Arizona immigration judges will agree with ICE and that the defendant will be detained during any appeals. (Note that currently ICE is arguing that an immigration judge can consider a specific age of the victim set out in record, even where the statute of conviction has no element of age, so that the age of the victim would be necessary to prove an element of the offense. See discussion of ARS § 13-1405.) Consensual sexual conduct with a person under the age of 15, if the contact involves only the female breast. Criminal defense counsel must assume conservatively that this will be held to be sexual abuse of a minor. To preserve arguments against this in immigration proceedings, criminal defense counsel should have the record of conviction indicate that the victim was age 14, or at least not indicate that the victim was age 13 or younger. Immigration counsel will point out that while the Ninth Circuit has held that conduct with lewd intent with a person age 13 or younger is sexual abuse of a minor, and that conduct with lewd intent with a victim age 15 or older is not necessarily sexual abuse of a minor, the court has not ruled on the offense of sexual contact with a victim who is age 14 or 15. Compare, e.g., United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999) (lewd act with a victim under age 14 is sexual abuse of a minor) with U.S. v. Castro, 607 F.3d 566, 567-58 (9th Cir. 2010) (lewd act with a 14- or 15-year old victim is not categorically SAM). In fact, the Ninth Circuit has held that even sexual intercourse with a 15-year-old is not necessarily sexual abuse. Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. 2009) (sexual conduct with a person just under sixteen is not per se abusive). In light of that standard, immigration counsel will argue that touching the breast of a 14-year-old should not be held necessarily to be sexual abuse of a minor. The reasoning in these cases is as follows. Sexual contact with a person under age of 14 has been held to constitute sexual abuse of a minor on the grounds that using young children for sexual gratification is inherently abusive and harmful. United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). The Ninth Circuit has recognized, however, that the older the teenager, the less likely it is that some form of consensual contact will cause psychological harm. See United States v. Baza-Martinez, 464 F.3d at 1015 (9th Cir. 2006) (noting that, under Baron-Medina, section 288(a) punishes "abuse" "because it requires use of young children, implying harmful or injurious conduct" (internal quotation marks omitted)); United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006) ("The age affects Arizona Criminal Chart with Explanatory Endnote – August 2012 37
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 whether the conduct the statutory rape law covers constitutes 'abuse.'"); see also Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir. 2006) (noting that the age of the victim affects whether a statute is categorically a "crime of violence"). In addition, ARS § 13-1404 does not require that the act be committed for sexual gratification or with lewd intent. Given the mild nature of the sexual contact, the relatively older age (age 14, not 13) of the victim, and the lack of requirement of intent for sexual gratification, there is a viable argument that the offense is not sexual abuse of a minor. However, immigration judges in Arizona may not accept this argument, and counsel may have to appeal it to the Ninth Circuit, while the immigrant remains in detention. For this reason, criminal defense counsel should avoid this plea. Aggravated Felony: Crime of Violence. Nonconsensual sexual contact with a person at least 15 years old. A crime of violence is an aggravated felony if the sentence to imprisonment is 365 days or more. 8 USC § 1101(a)(43)(F). To be a crime of violence within 18 U.S.C § 16 the offense must have use, attempted use, or threat of use of physical force as an element, or be a felony that “by its nature, involves a substantial risk that physical force against the person … of another may be used in the course of committing the offense.” 18 U.S.C § 16. If the record establishes that the abuse was by force or threat of force, the offense is a crime of violence. Even if it leaves open the possibility that deceit rather than force was used, a felony conviction still is likely to be held a crime of violence as an offense involving a risk that physical force might be used, although immigration counsel at least could argue against this. Counsel can avoid this result by obtaining a sentence imposed of 364 days or less. Consensual sexual contact with a person under age 15, if the contact is limited to the female breast. While ICE may aggressively charge this as a crime of violence if there is a sentence of 365 days, immigration counsel have strong arguments that it should not be a crime of violence. Other Grounds: Crime of Child abuse. Nonconsensual sexual contact with a person at least 15. Criminal defense counsel should make every effort to keep the victim’s age from the record of conviction, if the victim is under the age of 18. If the reviewable record shows that the victim was under 18, the offense will be held a deportable crime of child abuse; if it does not, the offense should not be held a deprtable crime of child abuse. The Board of Immigration Appeals has defined “child abuse” as an offense involving an “intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such a person’s physical or mental well-being, including sexual abuse or exploitation.” Matter of Velasquez-Herrera, 24 I&N Dec. 503 (BIA 2008). The Board held that even if being a minor is not an element of the offense, if minor age is conclusively established by the record of conviction, the conviction can be held a crime of child abuse. Consensual sexual contact with a person under the age of 15. In this case, the age of the victim is proved, but immigration counsel have a strong argument that mild sexual contact with a 14-year-old is not per se harmful. Other Grounds: Crime of DV: If the victim is 18 years or older and the § 13-3601 notation attaches, it may be removable as a crime of domestic violence if the record of conviction indicates the use or threat of force. 24. Sexual Conduct with a Minor, ARS § 13-1405 “A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” The offense is a Arizona Criminal Chart with Explanatory Endnote – August 2012 38
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