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In U.S. v. Francisco Salgado Martinez, a prosecution for illegal reentry after removal, the Ninth Circuit held that child molestation in the third degree under section 9A.44.089 of the Washington Revised Code is not an aggravated felony for sexual abuse of a minor. It held the offense failed both of the alternative tests for that definition.

Under the first test from the court's en banc decision in Estrada-Espinoza, a crime is an aggravated felony if it requires "(1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.” The court held that section 9A.44.089 failed this test because it does not necessarily involve a sexual act, since the Washington courts have found the crime occurred where a defendant rubbed and fondled the victim's thigh through clothing.

Under the second test from Medina-Villa, a crime is an aggravated felony if "(1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse....” The court held Washington 3rd degree child molestation does not necessarily involve "physical or psychological harm in light of the age of the victim in question." Although the court's reasoning on this point was not crystal clear, it appears to rest on the fact that the statute could apply to consensual contact with a teen between the ages of 14 and 16.

Since section 9A.44.089 of the Washington Revised Statutes lacks these elements entirely, the Ninth Circuit held that no conviction for that offense can meet the federal generic definition of aggravated felony sexual abuse of a minor. It therefore held the defendant here was not removable when removed and thus could not be prosecuted for illegal reentry after removal.


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.


In this sentencing case, a panel of the Ninth Circuit has once again concocted a way to squirm out of the categorical analysis.  The Supreme Court's harsh rebuke just last term in Descamps apparently has had little effect.  After reciting the admittedly terrible facts of the case (a parolee pimping out a 14 year-old runaway and using her to produce porn after prior convictions for sex with a minor and conspiracy to pander a minor), Judge Ikuta's opinion announces it is applying the categorical analysis and then utterly subverts it.

The portion of the opinion reviewed here concerns the use of the categorical analysis to determine whether a sentencing enhancement for a prior conviction for sexual abuse of a minor applies.   The opinion first notes the generic federal definition of sexual abuse of a minor requires conviction of either (a) a sexual offense with a minor that is inherently abusive or (b) an offense that involves knowingly engaging in a sexual act with a minor between the ages of 12 and 16 and a 4 year age difference.  The opinion then recognizes that Ninth Circuit precedent holds the defendant's prior conviction for California Penal Code section 261.5(d) (unlawful sex with a minor younger than 16 by an adult 21 or older) does not categorically meet this definition (and that by extension his prior conviction for PC 288a(b)(2) does not either).  PC 261.5(d) is not inherently abusive because it could involve consensual sex with a minor just one day shy of 16.  Nor does it meet the alternative test because the conviction does not require that the defendant know (or that he reasonably should know) the minor is under the age of 16.

No match should mean that the mandatory minimum sentences applied by the district court judge (25 years and 10 years) do not apply, but the panel snatches victory from the jaws of defeat with the magic words "relating to."   The panel finds that the sentencing enhancement requires only conviction of an offense "relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact with a minor or ward."  It explains this "mandates the enhancement for any state offense that stands in some relation, bears upon, or is associated with that generic offense.”   Whatever that means, the panel holds it does not require the conviction to have the same elements as the generic definition.

The opinion cites a Ninth Circuit decision, United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007), as support for its holding.  The citation, however, is suspect because it pre-dates the Supreme Court's last four decisions on the categorical analysis (Nijhawan, Johnson, Moncrieffe, and Descamps), which all have emphasized the primacy of elements when evaluating whether a conviction meets a federal definition.  Moreover, actually reading the Sinerius decision reveals that it does not offer quite as much support as the Sullivan panel asserts.  Sinerius does expound on "relating to," but its actual holding does not purport to dispense with a categorical analysis of the elements of the offense. Instead, It simply found that the generic definition of sexual abuse meant more than federal statutory rape, that it also covered sexual offenses with children younger than 14.  And then it compared the elements of the statute of conviction to that generic definition.  Sinerius does not assert that a conviction can satisfy a federal generic definition even if it is missing an element of the generic definition.

The flawed reasoning of Sullivan unfortunately has potential consequences beyond its application here.  For example, a conviction for an offense "relating to" a federal controlled substance makes a noncitizen deportable or inadmissible.  Thus, the panel's reasoning could be used to argue a conviction for California Health and Safety Code section 11377(a) "relates to" an offense involving a federally controlled substance even if the conviction actually did not (because some of the substances covered by it are not prohibited by the federal Controlled Substances Act).  This certainly would be news to another Ninth Circuit panel that recently held 11377(a) does not categorically make a noncitizen inadmissible.  See Quijada Coronado.  Ditto for another panel on a Hawaii controlled substances statute.  See Ragasa.

Let's hope the other judges on the Ninth Circuit see this chicanery for what it is.