Offense
Sexual conduct with a minor:
286(b)(1), 287(b)(1), 289(h) prohibit respectively sodomy, oral sex, and penetration with a person under age 18.
PC 286(b)(2), 287(b)(2), 289(i) prohibit this with a person under age 16, where D was at least age 21.
No element of coercion
Aggravated Felony (AF)
Appears that some sections are AFs and some are not.1SAM and PC 286, 287, 289. The aggravated felony sexual abuse of a minor (SAM) is evaluated under the categorical approach, based on the minimum conduct required for guilt under the statute. To determine the consequences of PC §§ 286, 287, 289 with a minor (respectively sodomy, oral sex, and penetration), we consider PC § 261.5 (sexual intercourse with a minor), because the elements are similar and there is extensive precedent on immigration consequences of PC § 261.5.
The Supreme Court held that § 261.5(c), sexual intercourse with a minor who is under age 18 and three years younger than the perpetrator, is not an AF as SAM because it does not require the minor to be under the age of 16. Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017). Sections 286(b)(1), 287(b)(1), and 289(h) also should not be held to be SAM. In fact, they are even less serious than § 261.5(c) because they involve sexual conduct with a minor under the age of 18, but with no requirement a three-year age difference.
Section 286(b)(2), 287(b)(2), and 289(i) involve sexual conduct with a person under the age of 16. In Esquivel-Quintana, the Court stated that in the case of sexual intercourse, “the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.” Id. at 390-391. While advocates may argue that this does not require such a finding for these statutes, and while the Ninth Circuit earlier held that the corresponding statute, PC 261.5(d), is not SAM, defenders must not take this chance; assume this is SAM.
PC 286(b)(1), 287(b)(1), 289(h) are not AFs as SAM because minor is under age of 18, based on Supreme Court ruling on the similar 261.5(c).
Assume 286(b)(2), 287(b)(2), 289(i) will be held AFs as SAM under S.Ct decision because they require a minor under age 16 and perpetrator age 21 or older (although an older Ninth Cir. decision held otherwise).
See endnote above and see PC 261.5(c), (d)
Crime Involving Moral Turpitude (CIMT)
Appears that some sections are CIMTs and some are not.2CIMT. Sections 286(b)(1), 287(b)(1), and 289(h) should not be held to be a CIMT because they involve sexual conduct (sodomy, oral sex, penetration) with a person under age 18. The BIA held that sexual intercourse with a minor is a CIMT if the minor (a) is under the age of 14, or (b) 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). These offenses are not CIMTs under that standard because the minor is under age 18, not age 16, and there is no requirement of any age difference.
In contrast, sections 286(b)(2), 287(b)(2), and 289(i), are at great risk of being held CIMTs, despite Ninth Circuit precedent to the contrary, because the BIA asserts that the conduct is a CIMT. These sections prohibit sexual conduct with a minor under age 16, where the perpetrator is at least 21 years old. In Matter of Jimenez-Cedillo, supra, the BIA held that soliciting such an act under a Maryland statute (MCL 3-307(a)(4), (5)) was a CIMT. Years earlier, the Ninth Circuit had held the opposite. It had found that California PC § 261.5(d), sexual intercourse with a minor under age 16 where the perpetrator is at least age 21, is not a CIMT, because it does not necessarily harm the minor. Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007). However, the Ninth Circuit also has held that it owes Chevron deference to a reasonable, on-point, published BIA decision. See Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc). So if a case involving 261.5(d) or one of the above statutes ever goes to the Ninth Circuit, the court may well withdraw Quintero-Salazar and adopt the BIA’s rule in Jimenez-Cedillo.
PC 286(b)(1), 287(b)(1), 289(h) should not be held CIMTs under BIA standard because they only require a minor under age 18.
Conservatively assume 286(b)(2), 287(b)(2), 289(i) will be held CIMTs under BIA standard because minor must be under age 16 and perpetrator age 21 or older. Removal defense: note older Ninth Circuit decision holds the opposite.
See endnote above and see PC 261.5(c), (d)
Other Removal Grounds
Advice: crime of child abuse. Even PC 286(b)(1), 287(b)(1), 289(h) (minor under age 18) will be charged as a deportable crime of child abuse[LG1] [LG2] [KB3] [KB4] [KB5] , in light of Matter of Aguilar-Barajas. See discussion at PC 261.5(c).
To avoid this consider alternative pleas. If this offense cannot be avoided, consider a plea to PC 288.3 with intent to commit 287(b)(1), 286(b)(1), or 289(h). PC 288.3 includes an officer posing as a minor, and the BIA held that that is not a crime of child abuse. See discussion of Matter of Jimenez-Cedillo at PC 288.3.
Assume that PC 286(b)(2), 287(b)(2), 298(i) will be held crimes of child abuse.
Advice and Comments
PC 286(b), 287(b), 289(h), (i)
These offenses likely have the same immigration consequences as 261.5(b)/(c) (intercourse with a minor under age 18) or 261.5(d) (intercourse with a minor under age 16, if perpetrator was age 21 or older), depending on whether the offense requires cut-off of age 18 or 16. We compare these statutes to 261.5(c), (d) because there is extensive case law on the immigration consequences of PC 261.5 and the offenses share similar elements.
Note that 286(b)(1), 287(b)(1) and 289(h) are even less serious than 261.5(c), because 261.5(c) requires the perpetrator to be at least three years older than the minor, while these statutes have no requirement of age difference. Under the categorical approach, these statutes should be evaluated as if the perpetrator had just turned 18 and the minor was a few days away from their 18th birthday.
Under the categorical approach, all statutes discussed in this section are evaluated as if conduct is consensual.
Alternative pleas. Rather than 286(b)(2), 287(b)(2), 289(i), consider 286(b)(1), 287(b)(1), 289(h), or 288.3 to commit those less serious offenses, or consider: 459 first or second degree, 243(a), (e), 236/237; or 136.1(b)(1) or PC 32, with sentence of less than a year; or 207(a) or 243.4, trying for a sentence of less than a year (but 243.4 is a CIMT). Or consider offenses like 288(c) or 647.6 which the Ninth Circuit has held not to be SAM or a CIMT, although other circuits might differ.
Child abuse. Even 286(b)(1), 287(b)(1) and 289(h) might be charged as deportable child abuse, due to the confusing Matter of Aguilar-Barajas (BIA 2022). Consider PC 288.3. See further discussion at 261.5(c).