The Board in Guevara-Alfaro returned to the same issues decided by former Attorney General Mukasey in Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).
It first held that any intentional sexual contact between an adult and a child of less than 16 years of age involves moral turpitude if the adult knew or should have known the child was under 16. Thus, it held that a conviction under California Penal Code 261.5(d) (sexual intercourse between 21+ adult and minor under 16) may involve moral turpitude.
It acknowledged, however, that 261.5(d) did not categorically involve moral turpitude because the offense does not require that the perpetrator knew or reasonably should have known that the victim was less than 16 years of age.
In reaching this conclusion, the Board cited Brand-X to assert that the Ninth Circuit had to defer to this interpretation despite its decision in Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007). It noted the Ninth Circuit ruled in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.2009) (en banc) that the definition of a crime of moral turpitude is quintessentially ambiguous, so the the court must defer to the Board's interpretation.
Quintero-Salazar had held that 261.5(d) would not involve moral turpitude if, for example, the relationship was between a high school junior of 15 years and 11 months and a college student of 21 years. It noted that the conduct involved, consensual sex, would be legal if the two were married. Marriages between 21 year-olds and 15 year-olds may not be as common as they once were in the U.S., but are legally possible in some states with parental consent.
Guevara Alfaro disagreed, holding that intentional sexual contact between a 15 year-old and a 21 year-old would involve moral turpitude, if the 21 year-old knew or reasonably should have known the victims age. It did not explain how this could be a crime of moral turpitude if the two were legally married.
The Board next held it should use the process enunciated by Silva-Trevino to determine whether the offense actually involved moral turpitude (i.e., whether the perpetrator knew or reasonably should have known the victims age). It held that since 261.5(d) did not categorically involve moral turpitude, it had to examine the record of conviction documents and, if the record of conviction is inconclusive, it had to review other probative evidence to determine if the offense involved moral turpitude. This would include, in this case, the testimony of the respondent.
The important caveat that both Silva-Trevino and Guevara Alfaro included, but which immigration judges may overlook, is that they may proceed to the third step of examining other probative evidence only if the record of conviction documents are "inconclusive." This should mean that an IJ may not look at other evidence if the record of conviction documents clearly show that the offense did not involve moral turpitude. Thus, where state law permits such a conviction, a guilty plea that stipulates the defendant "did not know and had no reasonable basis for knowing the victim was under 16" should prevent inquiry by the IJ beyond the record of conviction. The record of conviction in such a case would be conclusive. Whether the Board actually adheres to this aspect of Silva-Trevino, however, remains to be seen.
Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3705.pdf.