Sex with minor under age 16, if D is at least age 21
Aggravated Felony (AF)
Conservatively treat 261.5(d) as an AF as SAM.
Immigration advocates can cite existing Ninth Circuit precedent to the contrary. See Advice.
Crime Involving Moral Turpitude (CIMT)
Assume 261.5(d) may be held CIMT in future, although immigration advocates can cite existing Ninth Circuit precedent that it is not.
Other Removal Grounds
Assume deportable crime of child abuse.
See discussion of Adam Walsh Act at 261.5(c), above.
Advice and Comments
Bad plea. See endnote for discussion and citations.1Pen C § 261.5(d) as an AF. Counsel should try hard to avoid § 261.5(d), since the Ninth Circuit may reconsider its prior favorable treatment of it in light of Esquivel-Quintana. The Ninth Circuit held that § 261.5(d) is not an AF as sexual abuse of a minor (SAM), and advocates in removal proceedings should cite this. Pelayo-Garcia v. Holder, 589 F.3d 1010, 1016 (9th Cir. 2009). Defenders, however, must assume conservatively that at some point the Ninth Circuit may change its analysis based on the implication of the ruling in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). In Esquivel-Quintana the Supreme Court held that where 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. It found that Pen C § 261.5(c), which includes minors age 16 or older, is not SAM. The Ninth Circuit might decide that because § 261.5(d) is limited to minors younger than age 16, it should reverse itself and find that 261.5(d) is SAM. See discussion in ILRC and NIPNLG/IDP practice advisories on Esquivel, cited in the § 261.5(c) endnote, above.
Pen C § 261.5(d) as a CIMT. This also is risky. The Ninth Circuit held that the minimum conduct to commit § 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). But the court might reconsider this holding at some point, based on two decisions. First, the BIA held that sex 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. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017). But see Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir. 2018), where the court remanded the case to the BIA based on a finding that the BIA failed to provide a reasoned explanation for its change in position—that it no longer required knowledge that the victim was under-age and thus, such decision was arbitrary and capricious. Section 261.5(d) meets the BIA’s definition in Jimenez-Cedillo, and the Ninth Circuit might decide to defer to the Board on the issue. But to the extent 261.5(d) does not require knowledge that the victim was under-age, there might be an argument against it, similar to the Fourth Circuit’s. Second, the court might be influenced by the Supreme Court’s decision in Esquivel-Quintana, above, which held that sex with a person at least age 16 or over is not the aggravated felony “sexual abuse of a minor.” While the definition of sexual abuse of a minor and moral turpitude are not necessarily the same, the Ninth Circuit might decide that the implied characterization of sex with a person under the age as involving “abuse” means that it is reasonable to conclude that it is a CIMT.
Crime of Child Abuse. The Ninth Circuit held that a similar offense, Wash Rev Code § 9A.44.089, sexual contact (touching intimate parts for purpose of sexual gratification) with a person age 14 or 15 by someone at least two years older, is a crime of child abuse. Jimenez-Juarez v. Holder, 635 F.3d 1169 (9th Cir. 2011). Under that test, 261.5(d) also is. (But see discussion in Quintero-Salazar v. Keisler, supra, concluding that such conduct is not harmful to the minor.)
To avoid possible SAM AF, a far better plea is to 261.5(c) and/or to an age-neutral offense such as 136.1(b)(1), 236/237, 243(a), (d), (e), 243.4, 245, 273a(b) or if necessary (a), 314, 459/460(a) or (b), 647.6. D can take sex offender registration without the offense becoming SAM.
To ensure age-neutral offenses listed above are not wrongly charged as deportable crimes of child abuse, do not let ROC indicate minor age
Re DACA, see 261.5(c)