Offense
261.5(c) is intercourse with a minor under age 18, if D is at least 3 years older.
261.5(b) is the same with a minor under age 18 but no requirement of age difference- just that D and V must be within 3 years of each other.
Aggravated Felony (AF)
Not an AF. The Supreme Court held that 261.5(c) is not an AF as sexual abuse of a minor (SAM). Neither is it a COV. The same is true of 261.5(b).
See Advice for citations.
Crime Involving Moral Turpitude (CIMT)
Not a CIMT. Ninth Circuit held (c) is not a CIMT, and neither is it a CIMT under the BIA’s legal test. Same is true for 261.5(b).
See Advice for citations.
Other Removal Grounds
Deportable child abuse. ICE likely will charge 261.5(c) as a deportable crime of child abuse, citing Matter of Aguilar-Barajas (2021). For now, defenders should try to avoid 261.5(c) if the D needs to avoid a deportable offense. But see Advice re Loper-Bright.
If nothing else is available, a plea to 261.5(b) might have a better chance than (c).
Advocates in removal proceedings should argue to the Ninth Circuit that 261.5(b) and (c) are not deportable child abuse. This argument has a far higher chance of winning now that the Ninth Circuit no longer will defer to BIA decisions under Chevron. See Advice.
Adam Walsh Act. When V is a minor, conviction may prevent a USC or LPR from immigrating family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.
Advice and Comments
See endnote for discussion and citations.1Pen C § 261.5(b), (c). This discussion will refer to 261.5(c) (minor under age 18 and perpetrator at least three years older) because that is the subject of precedent decisions, but note that 261.5(b) (minor under age 18 and perpetrator within 3 years of minor’s age) is a less serious offense in terms of age difference, and so might do better than 261.5(c).
Pen C. 261.5(c) as an AF. The Supreme Court held that Pen C § 261.5(c) is not an AF as sexual abuse of a minor (SAM). It found that when a sex offense is based solely on the age of the participants, the generic definition of SAM does not include sex with a minor who is age 16 or older because it is not abuse. Since the minimum conduct to commit § 261.5(c) includes sex with a 16- or 17-year old minor, and § 261.5(c) is not divisible as to age, no conviction of the offense is SAM. See Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017), and see ILRC, Practice Advisory: Supreme Court Rules on Sexual Abuse of a Minor (June 2017) at https://www.ilrc.org/sites/default/files/resources/advisory_esquivel_quintana.pdf and NIPNLG/IDP, Practice Advisory: Esquivel-Quintana v. Sessions (June 8, 2017) at https://www.immigrantdefenseproject.org/wp-content/uploads/6-8-17-Esquivel-Quintana-practice-advisory-FINAL.pdf. (But see Pen C § 261.5(d), below.)
Section 261.5(c) also is not an AF as a COV. It does not come within the definition at 18 USC § 16(a), and 18 USC § 16(b) has been struck down as unconstitutional. See Pen C § 207 on the definition of COV. Further, the Ninth Circuit previously had held that statutory rape is not a COV even under 18 USC 16(b). U.S. v. Christensen, 558 F.3d 1092 (9th Cir. 2009), Valencia-Alvarez v. Gonzales, 439 F.3d 1046 (9th Cir. 2006).
Pen C § 261.5(c) as a CIMT. The minimum conduct to violate § 261.5(c) involves sex with a minor a day before their 18th birthday, who is three years younger than the perpetrator. The statute is not divisible with respect to the age of the minor, so the question is whether consensual sex between a person a day short of their 18th birthday and a person a day short of their 21st birthday is categorically a CIMT.
The Ninth Circuit has held that the more serious PC § 261.5(d) is not a CIMT. In Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007), the court found that the minimum conduct to commit § 261.5(d), which is sex between a person under the age of 16 and an adult at least 21 years old, is not a CIMT because it is not necessarily harmful to a 15-year-old. The less serious 261.5(c) also is not a CIMT under that ruling. (Note, however, that Quintero-Salazar as applied to § 261.5(d) may well change in future; see next endnote.).
Significantly, 261.5(c) also does not come within the BIA’s standard for when an offense is a CIMT. The BIA held that sex with a minor is a CIMT if the minor is under the age of 14, or is under the age of 16 and there is a significant age difference. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), reaffirmed in 27 I&N Dec. 1 (BIA 2020). The corollary should be that § 261.5(c), which reaches 16- and 17-year olds, with persons just three years older, is not a CIMT. That conclusion seems further supported by the Supreme Court’s in Esquivel-Quintana that § 261.5(c) is not the AF sexual abuse of a minor. The Court noted, among other things, the majority of states do not even criminalize this conduct, and the generic age of consent is 16. See Esquivel-Quintana, 137 S. Ct. at 1569. This makes it hard to assert that community mores find consensual sex with a 17-year-old “depraved,” which is a definition of CIMT. Note that the Ninth Circuit will no longer defer to the BIA as to what conduct is a CIMT, since the Supreme Court reversed the requirement of Chevron deference; see Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (July 28, 2024).Pen C § 261.5(c) as a crime of child abuse. Xx Hi Juan, these four paragraphs are a whole new version of the “261.5(c) as a crime of child abuse” section. See deleted older version, below. This section will discuss two points. First, defenders must assume that PC 261.5(b) or (c) is a crime of child abuse under Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021). Second, removal defense advocates can argue that Aguilar-Barajas is wrongly decided and/or runs counter to the Ninth Circuit cases, and also can take a 261.5(b) or (c) case to the Ninth Circuit for a ruling, especially in light of the Supreme Court’s recent decision in Loper Bright, supra, that held that federal courts should not defer to agencies such as the BIA under Chevron.
Defenders must avoid 261.5(b) or (c) if D needs to avoid a deportable offense. ICE will charge that under Matter of Aguilar-Barajas, Penal Code 261.5(c) and even 261.5(b) are deportable crimes of child abuse because they reach intercourse with a “child” under the age of 18. See possible alternative pleas listed in the chart, including PC 288.3. In Aguilar-Barajas, the majority of a three-person BIA panel held that a Tennessee statute that prohibits sexual conduct between a minor who is between 13 and 18 years of age, and an adult at least ten years older, is a deportable crime of child abuse. ICE will argue that the finding of child abuse was not based upon the ten-year age difference between the adult and minor; instead, the BIA set out a rule that sexual intercourse between an adult and a minor under age 18 is per se child abuse, even if the ages are close. In fact, in defending its reasoning the Aguilar-Barajas majority cited a federal sentencing case holding that intercourse involving a minor under age 18 and a person at least four years older – and thus somewhat close to 261.5(c) — constituted “maltreatment.” Aguilar-Barajas at p. 362, citing United States v. Hardin, 998 F.3d 582, 586, 589 (4th Cir. 2021).)
Immigration advocates have strong arguments that 261.5(c) is not a crime of child abuse, although the issue may need to go to the Ninth Circuit. The dissent in Matter of Aguilar-Barajas argues that the opinion is wrongly decided, especially in light of the Supreme Court’s finding in Esquivel-Quintana, discussed above, that the generic definition of the age of consent is age 16 and thus consensual sexual conduct with a minor above that age is not abuse. See dissent, Aguilar-Barajas, 28 I&N Dec. at 365. Advocates also can investigate arguments that Aguilar-Barajas, which arose in the Fifth Circuit (where the court gave Chevron deference to the BIA’s holding), is contradicted by Ninth Circuit law, which has found that child abuse requires “(1) a mens rea that rises at least to the level of criminal negligence; and (2) ‘maltreatment’ that results in either actual injury to a child, or a ‘sufficiently high risk of harm’ to a child.” Menendez v. Whitaker, 908 F.3d 467, 474 (9th Cir. 2018) (partially abrogated by Diaz-Rodriguez v. Garland, which was vacated and remanded by the Supreme Court, No. 22-863, 2024 WL 3259656, at *1 (U.S. July 2, 2024)).
In Aguilar-Barajas the majority failed to present any evidence to support the assertion that consensual sexual intercourse is harmful to a 17-year old, especially if the other party is an 18-year-old or, in the case of § 261.5(c), a 20-year -old. In support of its claim, it essentially cited to its own vague definition of child abuse. The lack of evidence stands in contrast to the reality in the United States, where now, as in the time when the child abuse ground was added, the majority of states do not even criminalize consensual intercourse with a 17 year-old, and the CDC states that as of 2017 over half of 17-year-olds in the U.S. report that they have had sexual intercourse. See CDC, Over Half of U.S. Teens Have Had Sexual Intercourse by Age 18, New Report Shows (June 22, 2017), https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2017/201706_NSFG.htm).
Critically, the Ninth Circuit is no longer required to give Chevron deference to the BIA regarding the definition of a crime of child abuse or whether a particular offense comes within the definition. In Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (July 28, 2024), the Supreme Court held, “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” In fact, shortly after Loper the Supreme Court vacated and remanded to the Ninth Circuit another crime of child abuse decision in which the Ninth Circuit had deferred to the BIA, “for further consideration in light of” Loper Bright. See remand to the Ninth Circuit of Diaz-Rodriguez v. Garland, 55 F.4th 697 (9th Cir. 2022) (en banc) (deferring to the BIA to find that Cal. PC 273a(a) is a crime of child abuse), at No. 22-863, 2024 WL 3259656, at *1 (U.S. July 2, 2024). Comments for immigration advocates appear below.
Crime of child abuse. The BIA likely will hold that 261.5(c) is a deportable crime of child abuse under Matter of Aguilar-Barajas (BIA 2021). Aguilar-Barajas can be interpreted to mean that in every case, consensual sex between a person aged 18 or older and one who is age 17 or younger is child abuse. If D needs to avoid becoming deportable (e.g., D is an LPR or is an undocumented person who may apply for non-LPR cancellation), defenders must avoid this plea. But removal defense advocates have strong arguments; see section below.
Alternatives. Consider a plea to felony or misd PC 32 or 136.1(b)(1) with less than a year’s sentence, or to 207, 236/237, 243(a) or (e), 272, 273a(b), 415, 459 (1st or 2nd degree) or some combination – and see PC 288.3, discussed next. With a misd charge, try hard to get pre-trial diversion. Currently 647.6 and 288(c) are safe pleas, but it is possible they would be treated differently outside the Ninth Circuit.
Consider PC 288.3 with intent to commit 287(b)(1) (oral sex) or 289(h) (penetration) with a minor under age 18. Conviction for 288.3 is not a deportable crime of child abuse because it can involve a police officer posing as a child, which the BIA found does not qualify. The intended offenses are similar to 261.5(c), and so are not an AF or CIMT. See 287, 288.3.
If nothing else is possible, a plea to 261.5(b) rather than (c) might help defeat a charge of child abuse or CIMT.
Removal Defense Advocates. While there is no guarantee, it is quite possible that if presented with a case the Ninth Circuit will hold that 261.5(c) is not a deportable crime of child abuse. In Loper Bright (2024), the Supreme Court held that federal courts will no longer give Chevron deference to administrative agencies like the BIA in cases like this. As the dissent points out, Aguilar Barajas is poorly reasoned and inconsistent with the Supreme Court’s Esquivel-Quintana decision. With no requirement to defer, the Ninth Circuit ought to reject it. See discussion in the endnote at the top of this column.
DACA. 261.5(b), (c) might or might not be held a bar to DACA as a significant misdemeanor “sexual exploitation”. See DACA discussion at PC 25400.