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SCOTUS narrows category of “sexual abuse of minor” offenses that trigger deportation

Juan Esquivel-Quintana v. Jefferson B. Sessions, USSC No. 16-54, 2017 WL 2322840 (May 30, 2017), reversing Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016); Scotusblog page (including links to briefs and commentary)

A non-citizen convicted of an “aggravated felony” is subject to virtually automatic deportation. 8 U.S.C. § 1227(a)(2)(A)(iii). One of the crimes listed as an aggravated felony is “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). In this case the Supreme Court holds that “in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.” (Slip op. at 4). Because Esquivel-Quintana was convicted under a statute prohibiting sexual intercourse with a victim under the age of 18, he was not convicted of “sexual abuse of a minor” for purposes of the Immigration and Naturalization Act.

The immigration statutes don’t define “sexual abuse of a minor,” but the text’s reference to “minor” indicates the focus is on the victim’s age rather than mental or physical capacity. (Slip op. at 4-5). When the aggravated felony definition was created in 1996, the prevailing treatment of the “age of consent” under the law (based on state statutes and legal dictionary definitions) was 16. (Slip op. at 5-6, 9-10). Therefore, the Court concludes, the generic “sexual abuse of a minor” offense must involve a person under the age of 16, and to qualify as an aggravated felony the statute under which the noncitizen was convicted must define the offense in the same way. (Slip op. at 2-3). That isn’t the case with the statute defining Esquivel-Quintana’s offense:

Because 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 under this provision would be, at a minimum, consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21. Regardless of the actual facts of petitioner’s crime, we must presume that his conviction was based on acts that were no more criminal than that. If those acts do not constitute sexual abuse of a minor under the INA, then petitioner was not convicted of an aggravated felony and is not, on that basis, removable.

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We agree with petitioner that, in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16. Because the California statute at issue in this case does not categorically fall within that definition, a conviction pursuant to it is not an aggravated felony under § 1101(a)(43)(A). ….

(Slip op. at 4).

The upshot for Wisconsin practitioners: A conviction under § 948.02 clearly constitute sexual abuse of a minor, and therefore is an aggravated felony, but a conviction for sexual intercourse with a child age 16 or older under § 948.09 doesn’t constitute sexual abuse of a minor, and isn’t an aggravated felony. Davorin Odrcic reached the same conclusion in his indispensable Immigration Consequences of Wisconsin Criminal Offenses § 12.47 (1st ed. 2015), though his conclusion was based on the lack of a requirement in § 948.09 that there be some sort of age difference between the offender and the victim. The Court declines to decide if the generic crime requires a minimum age difference (slip op. at 11). He also notes, id., § 12.48, that because it’s not an aggravated felony, § 948.09 also can’t be a crime of child abuse that is a basis for removal under 8 U.S.C. § 1227(a)(2)(E)(i). But, he explains, id., § 12.44, a conviction under § 948.09 could be a crime against moral turpitude (CIMT), a broad classification of crimes that escapes precise definition but that has been held to include sexual activity with minors, e.g., Palmer v. I.N.S., 4 F.3d 482, 484-85 (7th Cir. 1993) (contributing to the sexual delinquency of a child is a CIMT). He advises telling clients about that possibility, id., § 12.49, and suggests seeking other offenses to plead to, if possible, id., § 12.50.

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