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AUG. 12, 2017
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What Is “Sexual Abuse of a Minor” Under Immigration Law

by Atty. Emmanuel S. TIPON

The ordinary meaning of “sexual abuse of a minor” (oftentimes referred to as “statutory rape”) is the “engaging in sexual contact with a person who is below a specified age or who is incapable of giving consent because of age or mental or physical incapacity.” Merriam Webster’s Dictionary of Law 454 (1996) cited by Esquivel-Quintana v. Sessions, Supreme Court, No. 16-54,  06/31/2017.

 Statutory rape is different from other types of rape in that force is not necessary for conviction. Even if the victim consented to the sexual act or no force was used, the perpetrator may be convicted. The Free Dictionary by Farlex http://legal-dictionary.thefreedictionary.com/Statutory+Rape, Wikipedia https://en.wikipedia.org/wiki/Statutory_rape

On May 30, 2017, the Supreme Court saved from deportation a 21-year old lawful permanent resident alien who had sexual relations with his 17 year old girlfriend, holding that it did not constitute “sexual abuse of a minor”. The alien had pleaded no contest to a statutory rape offense of “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” in violation of California Penal Code § 261.5(c) . “Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.” § 261.5(a). California defines “minor” as a “person under the age of 18 years.”

Removal proceedings were instituted against the alien for having been convicted of an “aggravated felony” 8 USC § 1227(a)(2)(A)(iii).  “Sexual abuse of a minor” is an aggravated felony. 8 USC  § 1101(a)(43)(A). The Immigration Judge ordered the alien removed. The Board of Immigration Appeals affirmed, 26 I&N Dec 469 (2015). The Court of Appeals denied the petition for review,  Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016).

The Supreme Court, in a rare show of unanimity, reversed the order removing the alien, holding that sexual relations between a 21 year old man and a 17 year old girl, did not constitute “sexual abuse of a minor”.  The court recalled that in 1996 when “sexual abuse of a minor” in the definition of “aggravated felony” was added to the Immigration and Nationality Act, the “generic” “age of consent” was 16 and remains so today. The court said that the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16.

The Supreme Court explained that to determine whether the conviction qualifies as an “aggravated felony, the Court must employ the “categorical approach” pursuant to which the court looks to the statute of conviction rather than to the specific facts underlying the crime. Under that approach the court asks whether the state statute defining the “crime of conviction” categorically fits within the “generic” federal definition of a corresponding “aggravated felony”. Since Cal. Penal Code § 261.5(c) criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” and defines a minor as someone under age 18, the conduct criminalized would be, at a minimum, consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21.

The court concluded that: “In the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of “sexual abuse of a minor” under § 1101(a)(43)(A) requires the age of the victim to be less than 16.”  Esquivel-Quintana v. Sessions, Supreme Court, No. 16-54,  06/31/2017. 

Observation: The court attached an Appendix to its opinion listing, state by state, offenses criminalizing sexual intercourse solely because of the age of the participants and the statutory age of consent. In Hawaii it is 14 years – the youngest. HRS § 707-730(1)(b) (1993). In California, among others, it is 18 – the oldest. Cal. Penal Code § 261.5(a) (1998).

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ATTY. TIPON has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen

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