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The Ninth Circuit Holds That Consensual Sex With A Minor Is Not A Crime Involving Moral Turpitude; Update On Ninth Circuit Lawby Kathy Brady, Esq.
A conviction for consensual sex with a minor, a/k/a
statutory rape, has been very dangerous for non-citizens, and criminal defense
counsel still must avoid pleading to this offense.
However there are some lights at the end of this tunnel for immigration
practitioners. In a critical
victory, the Ninth Circuit held that the offense is not a crime involving moral
turpitude. Moreover there is some
hope that in 2008 the court will reconsider en banc its prior ruling that the
offense is an aggravated felony as sexual abuse of a minor.
This is a brief update on the law in the Ninth Circuit. Moral
turpitude. The Ninth Circuit
held that consensual sex with a minor is not categorically a crime involving
moral turpitude. Quintero-Salazar v. Keisler
(9th Cir. Oct. 9, 2007).
This opens key defense strategies that permit a
noncitizen to apply for admission or adjustment, despite the fact that under
current precedent a statutory rape conviction is treated as an aggravated
felony. There is no ground of
inadmissibility based on conviction of an aggravated felony per se, so the only
way that a statutory rape conviction causes inadmissibility is under the moral
turpitude ground. Now that the
offense is held not to involve moral turpitude, and therefore does not cause
inadmissibility, the conviction is not a statutory bar to re-entry as a
permanent resident (as in Mr. Quintero -Salazar’s case), admission, adjustment,
or re-adjustment to permanent residency.
Note that the conviction at issue was for Calif. P.C. §261.5(d), which
prohibits sex between a person 21 years or over and a person under the age of
16. The court found that this
was not categorically (i.e., necessarily) a moral turpitude offense. Because the court found no
reviewable evidence in the record of conviction to provide more details about
the offense, the court found that the conviction was not of a crime involving
moral turpitude.
Statutory rape as
the aggravated felony “sexual abuse of a minor.” In Afridi v. Gonzales[1]the Ninth Circuit held that in immigration proceedings the term sexual
abuse of a minor reaches a misdemeanor conviction under Calif. P.C. §261.5,
which prohibits consensual sexual intercourse with a person under the age of 18
by a person who is older by three years or more. Since then, other Ninth Circuit panels
adjudicating federal criminal cases have come to the opposite
conclusion as Afridi, justifying the
difference by the fact that Afridi
was forced to “defer” to the BIA’s approach.[2]
In Estrada-Espinoza v. Gonzales
(9th Cir. Aug. 16, 2007),
the panel stated that it was forced to follow Afridi in immigration proceedings, but two judges in a concurrence argued
that Afridi was incorrectly decided
on the merits. A petition for
rehearing en banc of Estrada-Espinoza
is pending at this writing.
Statutory rape
and other aggravated felony classifications. In a questionable opinion, the
Ninth Circuit in Rivas-Gomez v.
Gonzales held that a conviction for consensual sex with a 15-year-old is an
aggravated felony as rape. However, the opinion was withdrawn
because the court found that it had not had jurisdiction to reach the
issue,[3] so there is now no published Ninth Circuit
opinion finding that consensual sex with a minor is rape.
In Valencia v. Gonzales[4] the Ninth Circuit held that statutory rape is not
an aggravated felony as a “crime of violence” under the applicable standard
at 18 USC §16. Note that this holding is not
affected by the recent decision in United States v. Gomez-Mendez,
486 F.3d 599 (9th Cir. 2007). There the Ninth Circuit held
that Calif. P.C. 261.5 meets a far broader definition of a "crime of
violence" under a federal Sentencing Guidelines section, which explicitly
includes “statutory rape.” This
does not control for 18 USC §16.
Particularly
serious crime, violent or dangerous crime. In Afridi, supra, the Ninth Circuit held
that statutory rape is not categorically a “particularly serious crime” that
will block withholding of removal.
In Rivas-Gomez, supra, the
Ninth Circuit held that statutory rape is not categorically a “violent or
dangerous” offense that will trigger a strong presumption against a grant of
a waiver of adjustment for an asylee or refugee, asylum, or a §212(h)
waiver.
Many thanks to Zach Nightingale and others at Van Der
Hout, Brigagliano and Nightingale, who represented Mr. Quintero-Salazar and are
representing amici in the petition for re-hearing en banc in Estrada-Espinoza.
For further discussion, see Brady, Tooby, Mehr, Junck Defending Immigrants in the Ninth
Circuit, §9.32 (www.ilrc.org/criminal.php). See also statistics
and materials in the ILRC’s amicus brief in Valencia v. Gonzales, at www.ilrc.org/criminal.php.
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