The Board of Immigration Appeals held that unlawful sex with a minor aged 16 or 17 is an aggravated felony, even if the penal statute does not require lack of consent, if the offense requires as an element that the defendant be three or more years older than the victim. It therefore held that a conviction for California Penal Code section 261.5(c) is an aggravated felony. In reaching this conclusion (in a case arising in the Sixth Circuit), the Board stated its disagreement with the Ninth Circuit's en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).
The Board stated its disagreement with Estrada-Espinoza, but its opinion failed to address the statutory construction argument that led the eleven circuit court judges to unanimously hold that California Penal Code § 261.5(c) is not an aggravated felony. Getting eleven judges to agree on anything is difficult, but it is even harder when the case involves an immigrant charged with a sex offense (although it may have helped that the defendant and victim in Estrada-Espinoza were a boyfriend and girlfriend living together with the consent of both sets of parents). The statutory construction argument that compelled the Ninth Circuit was that the aggravated felony of "sexual abuse of a minor," which is not defined in the Immigration and Nationality Act, should be drawn from the federal criminal definition of "sexual abuse of a minor" at 18 U.S.C. § 2243. That federal criminal definition penalizes knowingly having sex with a minor under the age of 16 where there is a 4 year age differential. It does not penalize consensual sex with a sixteen or seventeen-year-old, regardless of the age differential. The Ninth Circuit found that since Congress has already supplied this definition for criminal purposes, it is the one that should be used for immigration purposes as well--unless the immigration statute specifies otherwise. The Ninth Circuit also noted that sixteen is the age of consent in most states, as well as in the Model Penal Code (although some states, like California, set the age of consent at 18). Thus, it would make no sense to impose the most severe immigration consequences for a conviction of conduct that would not even be criminal for federal purposes or in most states.
Although the Board did not address why it thought it had the authority to fashion a different definition of sexual abuse of a minor than the one enacted by Congress, it did cite social science research that shows an age differential of three or more years created a potentially coercive or exploitative situation that equals abuse. It then provided examples of exploitative circumstances, such as where a high school teacher has a relationship with a student. It also voiced its concern that a person may be convicted of Penal Code section 261.5(c) even where the victim is under sixteen and the age differential is substantially more than three years. But Penal Code 261.5(c) is not the type of deal that a forty-year-old high school teacher would receive where he seduces a fourteen-year-old student. California has a range of sex offenses, including 261.5(d), that are more likely in that type of egregious situation.
Whether a conviction is an aggravated felony should be determined based on the minimum conduct that has a realistic probability of being prosecuted, not on the worst possible scenario. That is what the Supreme Court emphasized in Moncrieffe. And for Penal Code section 261.5(c), there is a realistic probability of a prosecutor charging it in a far more benign situation than posited by the Board. This is exemplified by Estrada-Espinoza itself, where a fifteen- or sixteen-year-old girlfriend lived with her twenty-year-old boyfriend in the home of his parents with the knowledge and consent of her own parents. That is hardly a coercive or exploitative situation and it is one that would be entirely legal if they had gotten married (or had lived in another state). That type of scenario hardly justifies the Board's disregard of Congress's statutory definition of sexual abuse of a minor.