Sex with minor under age 16, if D is at least age 21
Aggravated Felony (AF)
Defenders should assume 261.5(d) is an AF as SAM based on implication in SCOTUS Esquivel case.
Immigration advocates can cite existing Ninth Circuit precedent to the contrary. See Advice.
Crime Involving Moral Turpitude (CIMT)
Defenders assume 261.5(d) may be held CIMT in future and avoid it. It would be a CIMT under the BIA standard, and because of Esquivel discussion.
But 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 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,” which is read as implying that it is SAM if the minor is younger. While the definition of sexual abuse of a minor and moral turpitude are not 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.
Second, 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 April 6, 2017), reaffirmed on remand from the Fourth Circuit (Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir. 2018)) at Matter of Jimenez-Cedillo, 27 I&N Dec. 782 (BIA 2020). The BIA held that this is a CIMT even if the offense does not require knowledge that the victim was a minor. At least in the Fourth Circuit, the BIA will apply this aspect of the rule (the unusual lack of a knowledge requirement in a CIMT definition) prospectively only, which appears to mean to convictions that occurred on or after April 6, 2017. It stated that because the Fourth Circuit “specified that our decision represents a change in position and that our “prior policy may have ‘engendered serious reliance interests’ in aliens [such as the respondent,] who pled guilty to certain sexual offenses under the Silva-Trevino regime,” we will apply it prospectively in this circuit…. We will not decide the question of retroactivity in other circuits at this time.” Jimenez-Cedillo, 27 I&N Dec. at 784. To the extent 261.5(d) does not require knowledge that the victim was under-age, advocates can argue that pre-April 6, 2017 convictions should not be held CIMTs.
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.) Instead, try hard to plead to felony 261.5(c), if necessary with an additional offense, e.g., 136.1(b)(1) or other.
In Esquivel-Quintana (2017) the Supreme Court held that 261.5(c) is not SAM because consensual sexual intercourse with a minor age 16 or older is not inherently abusive. Courts may well draw the conclusion that intercourse with a minor under age 16 is abusive. Thus while current Ninth Circuit precedent holds 261.5(d) is not SAM or a CIMT, this could change and therefore defenders should avoid this plea.
Consider 261.5(c) and/or 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), 288(c), 314, 459/460(a) or (b), 647.6. D can take sex offender registration on these without the offense becoming SAM. Some but not all of the above offenses have other immigration consequences, or need to avoid a year or more sentence; check the chart for each offense.
Immigration advocates in removal proceedings will cite current good Ninth Circuit precedent, but should seek other defense strategies as well.
To ensure that 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)