PC 261.5 (c)

PC 261.5 (c)

Offense

Sex with minor under age 18, if D is at least 3 years older

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.

Crime Involving Moral Turpitude (CIMT)

Not a CIMT. See Advice for citations.

Other Removal Grounds

While there have been reports are that this is not being charged as deportable child abuse crime, 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(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. 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, 137 S. Ct. 1562 (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. Section 261.5(c) is not a CIMT under either the BIA or the Ninth Circuit standards. 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 minimum conduct to violate § 261.5(c) involves sex with a minor age 17. The statute is not divisible with respect to the age of the minor, so no conviction under the statute can be a CIMT. (It is always best, however, to keep the age of the victim out of the record of conviction if you can, in case authorities mis-apply the rules.)

Using its own CIMT definition, the Ninth Circuit earlier found that the minimum conduct to commit even § 261.5(d) is not a CIMT because it is not necessarily harmful to a 15-year-old. Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007). (Note, however, that this decision as applied to 261.5(d) might change in future; see next note.)

Pen C § 261.5(c) as a crime of child abuse. While practitioners have reported that it is not being charged as such, in December 2019 the AG requested amicus briefings on this issue. See https://www.justice.gov/eoir/page/file/1215241/download
261.5(c) is not a bad plea. Compare this to 261.5(d), which is more dangerous.

The holdings that this is neither SAM, COV, nor CIMT are national and apply in all Circuits.

Regarding crime of child abuse, in late 2019 AG Barr requested amicus briefing on the issue, so this is under consideration. At the least, this will make it more likely for ICE to charge it as such, pending an AG decision. To prevent that, consider a plea to PC 288.3, communicating with a child with intent to commit 289(h). See PC 288.3.

This might be deemed a significant misd for DACA. See PC 25400.

2020-11-17T17:24:25+00:00Updated January 29th, 2020|