For further discussion see Defending Immigrants in the Ninth Circuit, Chapter 9, § 9.32, www.ilrc.org/criminal.php
Overview. Conviction of rape or of “sexual abuse of a minor” is an aggravated felony.
No particular sentence is required, i.e., less than one year imposed will not protect the immigrant from being held an aggravated felon under these two categories. Rape and most offenses that would constitute sexual abuse of a minor also are crimes involving moral turpitude.
Some alternate pleas that would avoid the rape/sexual abuse of a minor category involve offenses classed as “crimes of violence” for immigration purposes, for example,
aggravated assault. Conviction of any “crime of violence” is an aggravated felony if a sentence of a year or more is imposed, so counsel using such an alternative must avoid the one-year sentence.
See Chart and Annotations for discussion of specific Arizona offenses.
Warning: Misdemeanor statutory rape under ARS § 13-1405 currently is classed as an aggravated felony as “sexual abuse of a minor,” regardless of sentence imposed and even if the victim was 17 years old. The Ninth Circuit is considering this issue en banc at this writing. Counsel should continue the hearing until the Ninth Circuit rules, plead to an alternate offense, or carefully consider whether there may still be immigration
possibilities despite the conviction. See Part B.
A. Rape
Conviction of committing sexual intercourse obtained by force or serious threat will be held to be an aggravated felony as rape, regardless of sentence imposed. The Ninth Circuit found that rape by intoxication is rape for this purpose,60 and that third degree rape under a Washington statute that lacks a forcible compulsion requirement, where the victim made clear lack of consent, is also.61
60 California Penal Code § 261 and 262 define rape as sexual intercourse obtained by force, threat, intoxication, or other circumstances.
61 U.S. v. Yanez-Saucedo, 295 F.3d 991(9th Cir. 2002).
Sexual activity that does not constitute intercourse, e.g. oral contact, might avoid classification as rape even if there is a threat of force. 62 Such an offense would be an aggravated felony as a crime of violence if a sentence of a year were imposed, however.
B. Sexual Abuse of a Minor
Most offenses involving sexual intent toward the victim, where the victim is under the age of 18, will be held an aggravated felony as sexual abuse of a minor, even if no jail time is imposed. At this writing the Ninth Circuit en banc is considering lower rulings holding that statutory rape (consensual sexual intercourse with a person under the age of 18, e.g. ARS § 13-1405) is an aggravated felony as sexual abuse of a minor.63 Until the court rules, this is a dangerous plea.
Crime Involving Moral Turpitude (CMT): The Ninth Circuit recently held that consensual sexual intercourse between a person who is under the age of 16 and a person who is 21 or older, under Cal. Pen. Code § 261.5(d), is not categorically a CMT.64 Depending on the individual’s immigration situation, the fact that this offense is not a CMT may make it possible to obtain some relief from removal, even if the offense continues to be viewed as an aggravated felony.
Aggravated Felony: Sexual Abuse of a Minor. A Ninth Circuit panel upheld a BIA decision that consensual sex with a person under the age of 18 is an aggravated felony as sexual abuse of a minor. Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir.
2007). As discussed above, the Ninth Circuit has agreed to hear this case en banc, however.
Committing a lewd act with a person under the age of 14, (Calif. P.C. § 288(a)), was held to be an aggravated felony as sexual abuse of a minor, even though the statute required no physical contact between defendant and victim. United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999). However, the Ninth Circuit also has recognized that some activity is not egregious enough to rise to the level of abuse. U.S. v.
Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (not all offenses with sexual intent that
“annoy or molest” a minor under Calif. P.C. § 647.6(a) are “abuse.”)
62 In an unpublished opinion with extensive discussion of various laws, the BIA found that a Texas offense of digital penetration did not constitute rape Matter of Gutierrez-Martínez, A17-945-476, available at www.lexisnexis.com/practiceareas/immigration/immigration_cases.asp.
63 In Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007), a Ninth Circuit panel acknowledged that it was bound by a previous decision in Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006) to find that a conviction for unlawful sex with a minor under Cal. Penal Code § 261.5(c) constitutes sexual abuse of a minor. However, in a concurring opinion, two panel members suggested that Afridi was incorrectly decided and should be reconsidered. Afridi at 936 (J. Thomas, concurring). A petition for rehearing en banc in Estrada-Espinoza has since been granted, and it is possible that statutory rape will not be categorically held to be sexual abuse of a minor in the future.
64 Approximately two months after the panel decision in Estrada-Espinoza, the Ninth Circuit found that a conviction under Cal. Penal Code § 261.5(d) was not a crime involving moral turpitude. Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007)
See discussion of specific offenses in the Chart, and possible alternate pleas discussed at “Note: Safer Pleas.” Safer pleas might include false imprisonment, unlawful administration of a drug or alcohol (ARS §13-1205), or certain sex offenses where the record does not establish the age of the victim, or there is no lewd intent toward the victim (e.g., § 13-1402 or 1403). For a sympathetic case, e.g. involving older teenage victim with perpetrator near age, investigate offenses such as ARS §§ 13-1201, 2907.01, 2908. If a felony is required, consider, e.g. aggravated assault with sentence of less than a year or with a vague record of conviction. See annotation to ARS § 13-1304.