In a published decision released this week, a three-judge panel of the Ninth Circuit Court of Appeals held that California's unlawful sexual intercourse with a minor offense, Cal. Penal Code § 261.5(d), does not constitute sexual abuse of a minor. Pelayo-Garcia v. Holder, No. 05-70929, slip op. (Dec. 14, 2009) (Noonan, Kleinfeld, Ikuta). Judge Ikuta wrote the panel's decision.

In this case, DHS sought to reopen the adjustment of status application of a Mexican citizen who was convicted of violating Cal. Penal Code § 261.5(d) approximately 9 months before having his adjustment application approved. Pelayo-Garcia, No. 05-70929, slip op. at 16445. Apparently no one brought the conviction to the IJ's attention until after the adjustment application had been approved. After granting the motion to reopen, the IJ ultimately determined that California unlawful sexual intercourse with a minor satisfied the requirements of the sexual abuse of a minor category of aggravated felony found at INA § 101(a)(43)(A).

Section 261.5(d) of the California Penal Code states:

Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years. Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16449.

“Unlawful sexual intercourse” is defined as “an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.” Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16449.

To determine whether § 261.5(d) constitutes an aggravated felony the Ninth Circuit analyzed the statute using the categorical approach enunciated in Taylor v. United States, 495 U.S. 575, 600-02 (1990), and Shepard v. United States, 544 U.S. 13, 20-21 (2005). Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16446. “Under the categorical approach, we ‘compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.’” Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16446 (quoting Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008)). The Ninth Circuit then set out two definitions of sexual abuse of a minor under INA § 101(a)(43)(A).

The Court's first definition, announced in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc), identified four elements of sexual abuse of a minor: “(1) a mens rea of 'knowingly' (as to engaging in the act); (2) a sexual act (3) with a minor who is at least 12 but not yet 16 years of age; and (4) an age difference of at least four years between the defendant and the minor.” Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16448.

A later case, United States v. Medina-Villa, 567 F.3d 507, 514 (9th Cir. 2009), narrowed Estrada-Espinoza to statutory rape crimes only. Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16448. Medina-Villa identified three elements required for the generic offense of sexual abuse of a minor in all circumstances not involving statutory rape: “(1) the conduct prohibited by the statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse.” Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16449. According to the Ninth Circuit, “A criminal statute includes the element of 'abuse' if it expressly prohibits conduct that causes 'physical or psychological harm in light of the age of the victim in question.” Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16449 (quoting Medina-Villa, 567 F.3d at 513).

The Ninth Circuit then turned to identifying the elements of California unlawful sexual intercourse with a minor under § 261.5(d). “On its face, section 261.5(d) contains the following elements: (1) sexual intercourse with another person; (2) the defendant was at least 21 years of age at the time of intercourse; and (3) the other person was under the age of 16 years at the time of intercourse.” Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16449. Importantly, the Ninth Circuit affirmed its earlier determination in Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007), that § 261.d(5) does not include a scienter requirement—that is, there is no requirement that the act have been performed knowingly. Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16449.

Finally, the Ninth Circuit compared the elements of California's offense with the elements of the generic offense of sexual abuse of a minor in Estrada-Martinez and Medina-Villa. Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16449-50. The Court had no trouble holding that the California offense is broader than the federal generic offense under Estrada-Martinez “because a defendant could be convicted under section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant 'knowingly' engaged in a sexual act.” Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16450.

The Ninth Circuit then examined the California offense alongside the elements identified in Medina-Villa. Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16451. The Court found that the California offense and the Medina-Villa interpretation of sexual abuse of a minor share two elements—(1) a prohibition of sexual intercourse with (2) a minor. Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16451. “But section 261.5(d) criminalizes a broader range of conduct than the crime delineated in Medina-Villa because a defendant could be convicted under section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant’s conduct constituted 'abuse.'” Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16451.

As such, the Ninth Circuit determined that the California offense of unlawful sexual intercourse with a minor “does not qualify as the generic federal crime of 'sexual abuse of a minor,' and therefore is not categorically an aggravated felony” under INA § 101(a)(43)(A).

The Ninth Circuit noted that it could not apply a modified categorical analysis in this case because there was not sufficient evidence in the record to justify a modified analysis. Pelayo-Garcia v. Holder, No. 05-70929, slip op. at 16453.