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The intersection of criminal law and immigration law

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After regularly updating crimmigration.com from January 2009 until November 2022, I have stopped doing so. I hope you continue to benefit from the blog as an archive. For up-to-date information about my work, visit ccgarciahernandez.com. – César

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BIA: Sexual abuse of a minor based on statutory rape of 16-or 17-year-old must include meaningful age differential

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 [...]

Posted by César on January 27, 2015 on 4:00 am Leave a Comment
Filed Under: aggravated felony, Board of Immigration Appeals, categorical approach, element, sexual abuse of a minor, Uncategorized

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 [...]

Posted by César on October 6, 2011 on 9:05 am 6 Comments
Filed Under: aggravated felony, sexual abuse of a minor, U.S. District Courts

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 [...]

Posted by César on September 13, 2010 on 10:24 am 5 Comments
Filed Under: 3d Circuit Court of Appeals, aggravated felony, sexual abuse of a minor

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 [...]

Posted by César on December 18, 2009 on 11:17 am 105 Comments
Filed Under: 9th Circuit Court of Appeals, aggravated felony, sexual abuse of a minor

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