The Board of Immigration Appeals held that a statutory rape offense must include, as an element, a meaningful age difference between the abuser and victim in order to be classified as sexual abuse of a minor, a type of aggravated felony. Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015). Board Member Malphrus wrote the panel’s opinion. This case involved an LPR convicted of unlawful intercourse with a minor more than three years younger, a violation of Cal. Penal Code § 261.5(c). An IJ concluded that this offense constituted sexual abuse of a minor under INA § 101(a)(43)(A). On [...]
US Dist Ct: OR statutory rape not sexual abuse of minor aggravated felony
A federal district court in Oregon recently determined that Oregon’s rape in the third degree offense, which the court referred to as “statutory rape,” does not meet the requirements the sexual abuse of a minor type of aggravated felony. United States v. Vidal-Mendoza, No. 10-393-MA, 2011 WL 1560987, 2011 U.S. Dist. LEXIS 44333 (D.Or. Apr. 25, 2011) (Marsh, J.). This case involved an individual who was convicted of rape in the third degree, Or. Rev. Statute § 163.355, “involv[ing] consensual contact between defendant, who was 21 or 22 years old at the time, and his then girlfriend (who was [...]
3d Cir: Adopts BIA’s interpretation of sexual abuse of a minor, finds NJ aggravated sexual criminal sexual contact is sexual abuse of minor, and statute of limitations doesn’t apply to removal proceedings
The Third Circuit Court of Appeals recently issued an important decision in the continued efforts of courts across the country to define the aggravated felony categories of removability. In Restrepo v. Attorney General, No. 07-4741, 2010 WL 3211138, slip op. (Aug. 16, 2010) (Fuentes, Fisher, and Connor), the Third Circuit explicitly adopted the definition of sexual abuse of a minor used by the BIA and held that aggravated criminal sexual contact in New Jersey, N.J. Stat. Ann. § 2C:14-3(a), constitutes sexual abuse of a minor. Judge Connor wrote the panel’s decision. This case involved an LPR [...]
9th Circuit: California unlawful sexual intercourse with a minor is not sexual abuse of a minor aggravated felony
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 [...]