PC 261.5(b), (c)

Offense

Sex with minor under age 18, if D is at least 3 years older (c) or with no requirement of age difference (b)

Aggravated Felony (AF)

261.5(c) is not an AF as sexual abuse of a minor (SAM) and is not a COV. See Advice for citations.

The same would be true of 261.5(b).

Crime Involving Moral Turpitude (CIMT)

Not a CIMT. Ninth Circuit held (c) is not a CIMT. BIA’s standard is that it is not a CIMT.

Still, ICE could conceivably charge it as such. 261.5(b) is less serious and may be more secure.

See Advice for citations.

Other Removal Grounds

ICE will charge 261.5(c) as a deportable crime of child abuse, citing Matter of Aguilar-Barajas. Defenders must avoid even misd 261.5(c), or (b), if deportability is important. If that’s not possible, a plea to (b) is better.

Removal advocates can argue that this is not deportable child abuse. 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

PC 261.5

See endnote for discussion and citations.¹

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. It is unlikely but perhaps not impossible that ICE would charge § 261.5(c) as a CIMT, despite Ninth Circuit and BIA decisions. (ICE will charge it as a deportable crime of child abuse; see below.)

The minimum conduct to violate § 261.5(c) involves sex with a minor age 17 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 18^th birthday and a person on 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.). The Ninth Circuit has agreed to give Chevron deference to “reasonable” published BIA decisions on CIMT, however.

Significantly, 261.5(c) also does not come within the BIA’s standard. 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 be a CIMT 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.

The only problems are that (a) sometimes ICE or the BIA make bizarre decisions, and in Jimenez-Cedillo the BIA did not literally state that sex with a minor aged 16 or 17 is not a CIMT, and (b) recently the BIA held that, despite Esquivel-Quintana, sex between a 17-year-old and a person 10 years older can be a deportable “crime of child abuse.” See discussion of Matter of Aguilar-Barajas, below. Based on that, ICE conceivably could assert that § 261.5(c) is both child abuse and a CIMT, the BIA might so hold, and the Ninth Circuit might defer and withdraw Quintero-Salazar. This offense will be more or less secure as we see reactions by federal courts to Aguilar-Barajas and any further rulings by the BIA.

Pen C § 261.5(c) as a crime of child abuse. ICE will charge that under Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021), 261.5(c) is a deportable crime of child abuse because it reaches intercourse with a “child” under the age of 18. Defenders should avoid 261.5(b) or (c), if D needs to avoid a deportable offense. See possible alternatives listed in the chart, including PC 288.3. Advocates in removal proceedings can argue that (1) Aguila Barajas was wrongly decided in general, and/or (2) Section 261.5(b) and (c) are not crimes of child abuse even under the Aguilar Barajas decision, because they are distinguishable from the statute at issue in that case. As always with untried arguments, advocates at the same time should investigate the possibility of post-conviction relief.

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, and that it was instead based on the BIA finding that sexual intercourse between an adult and a minor under age 18 is per se child abuse, even if the ages are close. Immigration advocates can point out that the BIA majority did not address the situation where the ages were closer, and that the reason that the decision emphasizes the age 18 cut-off rather than the ten-year age difference is that the BIA’s focus was to justify the fact that the result of the decision was to name a different age cut-off for when intercourse is “abuse” than the Supreme Court did in Esquivel-Quintana, discussed above. The BIA states that certain sexual conduct with a minor under age 18 is a “crime of child abuse,” while the Supreme Court held that for purposes of the AF sexual abuse of a minor, sexual intercourse is not abusive unless the minor is under age 16. See Esquivel-Quintana, discussed above.

Advocates arguing that Aguilar-Barajas was wrongly decided or does not apply to 261.5(c) should carefully read the opinion and the dissent, especially the discussion of Esquivel-Quintana. Because this decision is so problematic, advocates can ask for an en banc hearing at the BIA as well as appeal to the Ninth Circuit. The Ninth Circuit will defer to a “reasonable” published BIA decision defining “crime of child abuse,” so this definition must be found unreasonable.

Along with the dissent arguments, and the critical claim that “abuse” has one definition by the Supreme Court and another by the BIA, one can bring up reality. If the BIA did mean to state that any consensual intercourse with a 17-year old, even if the other party is an 18-year-old (or, in the case of § 261.5(c), a 20-year -old), is inherently abusive or harmful to the minor, it failed to present any evidence to support that. It only cited to its own vague definition (or “guideline”) of child abuse from Velasquez. The lack of evidence about harm and abuse 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 where over half of 17-year-olds in the U.S. report that they have had sexual intercourse (see, e.g., 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). The BIA, as well as state and federal laws, has found that the presence of a significant age difference is a more serious offense and makes abuse more likely. See, e.g., Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), affirmed 27 I&N Dec. 782 (BIA 2020) (sexual intercourse with a minor is a CIMT if the minor either is under the age of 14, or is under the age of 16 and the offense requires a significant age difference).

See, however, Garcia v. Barr, 969 F.3d 129, 135 (5th Cir. 2020), cited with approval in Aguilar-Barajas, where the Fifth Circuit deferred to the unpublished BIA decision to find that Texas PC 22.011(a)(2) is a crime of child abuse. The Texas statute is similar to but somewhat more serious than PC 261.5(c) in that it prohibits sexual contact with a minor under age 17 by someone more than three years older, while the cut-off for 261.5(c) is under age 18.

Crime of child abuse. The disadvantage of 261.5(c) is that it will be charged as a deportable crime of child abuse under Matter of Aguilar-Barajas (BIA 2021), which can be interpreted to mean that any consensual sexual conduct between a person over 18 and one under 18 is child abuse. If D needs to avoid becoming deportable (e.g., is an LPR or is an undocumented person who may apply for cancellation of removal or VAWA), defenders must avoid this plea. See alternative plea suggestions, below.

Removal defense advocates should assert that Aguilar-Barajas (a) is wrong and/or (b) does not apply to 261.5(c) (or even better for purposes of argument, 261.5(b)). See endnote above. Use this time to investigate post-conviction relief, as there is no guarantee this will prevail.

Still, 261.5(c) is far better than 261.5(d). It is likely the Ninth Circuit will withdraw from its own precedent on 261.5(d) and find it is an AF as sexual abuse of a minor, a CIMT, and a crime of child abuse. See 261.5(d), below.

Alternatives. To avoid a deportable crime of child abuse, consider a plea to felony or misd PC 32 or 136.1(b)(1) with less than a year’s sentence, 243(a), 243(e), 236/237, 272, 273a(b), 415, 459 (1st or 2nd degree). Currently 647.6 and 288(c) are safe pleas, but it is possible they would be treated differently outside the Ninth Circuit, or the Ninth would change.

A good alternative may be PC 288.3 with intent to commit 287(b)(1) (oral sex) or 289(h) (penetration) with a minor under age 18, no age difference requirement. The 288.3 should not be a crime of child abuse because it can involve a police officer posing as a child, while the BIA says the harm must be to an actual child. It also is not an AF or a CIMT. See 287, 288.3.

All of these alternatives are safer than 261.5(b). But if none of them are possible, a plea to 261.5(b) rather than (c) might help defeat a charge of child abuse or CIMT.

DACA. 261.5(b), (c) might be held a bar to DACA as a significant misdemeanor. See DACA discussion at PC 25400.