In re Aguilar-Barajas

• Decision Date: 30 July 2021
• Docket Number: Interim Decision #4025
• Parties: Matter of Jose AGUILAR-BARAJAS, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

28 I&N Dec. 354

Matter of Jose AGUILAR-BARAJAS, Respondent

Interim Decision #4025

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

July 30, 2021

(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a "crime of child abuse" within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).

(2) The Supreme Court's holding that a statutory rape offense does not qualify as "sexual abuse of a minor" based solely on the age of the participants, unless it involves a victim under 16, does not affect our definition of a "crime of child abuse" in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent's statutory rape offense falls within this definition. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), distinguished.

FOR RESPONDENT: Sean Lewis, Esquire, Nashville, Tennessee

FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate Legal Advisor

BEFORE: Board Panel: HUNSUCKER, Appellate Immigration Judge; NOFERI, Temporary Appellate Immigration Judge. Concurring and Dissenting Opinion: PETTY, Appellate Immigration Judge.

HUNSUCKER, Appellate Immigration Judge:

The Department of Homeland Security ("DHS") has appealed from the Immigration Judge's November 13, 2019, decision terminating the respondent's removal proceedings. The respondent has filed an opposing brief.¹ The appeal will be sustained, the proceedings will be reinstated, and the record will be remanded.

The respondent is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident in 2000. On April 29, 2019, hewas convicted of two counts of aggravated statutory rape in violation of section 39-13-506(c) of the Tennessee Code Annotated. Based on this conviction, the DHS placed him in removal proceedings and charged him with removability under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018), as a noncitizen convicted of a "crime of child abuse, child neglect, or child abandonment."² The respondent denied the charge of removability, and the Immigration Judge terminated proceedings after concluding that his offense was not a "crime of child abuse, child neglect, or child endangerment" under the Act. The DHS challenges this determination on appeal. Whether the respondent's conviction is for a "crime of child abuse, child neglect, or child endangerment" under the Act is a question of law that we review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

We have interpreted the term "crime of child abuse, child neglect, or child abandonment" in section 237(a)(2)(E)(i) of the Act broadly and defined it as

any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child's physical or mental well-being, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that involves the use or exploitation of a child as an object of sexual gratification or as a tool in the commission of serious crimes, such as drug trafficking.

Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008); see also Matter of Soram, 25 I&N Dec. 378, 381 (BIA 2010) (clarifying that "the phrase 'a crime of child abuse, child neglect, or child abandonment' in section 237(a)(2)(E)(i) of the Act denotes a unitary concept and that our broad definition of child abuse [in Velazquez-Herrera] describes the entire phrase").³ In Matter of Soram, we further clarified that the phrase "crime of child abuse" includes endangerment-type offenses that pose a threat to the life or health of a child, regardless of whether there is actual harm or injury to a child. 25 I&N Dec. at 381-83; see also Matter of Mendoza Osorio, 26I&N Dec. 703, 706, 711-12 (BIA 2016) (concluding that endangering the welfare of a child under New York Law, which requires knowingly acting in a manner likely to be injurious to a child, is a "crime of child abuse" under the Act). For purposes of section 237(a)(2)(E)(i), a "child" is "an individual who ha[s] not yet reached the age of 18 years." Matter of Velazquez-Herrera, 24 I&N Dec. at 512.

The statute under which the respondent was convicted defines aggravated statutory rape as "the unlawful sexual penetration of a victim by the defendant, or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim." Tenn. Code Ann. § 39-13-506(c) (West 2019); see also Tenn. Code. Ann. § 39-13-501(7) (defining "sexual penetration" for purposes of section 39-13-506(c) as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body, but emission of semen is not required").

To determine whether the respondent's offense is a "crime of child abuse" under the Act, we employ the categorical approach, under which we disregard his actual conduct and focus instead on the elements of section 39-13-506(c) and the minimum conduct that has a realistic probability of being prosecuted under the statute. Matter of Mendoza Osorio, 26 I&N Dec. at 705-06; Matter of Velazquez-Herrera, 24 I&N Dec. at 513-15. The minimum conduct criminalized under section 39-13-506(c) is sexual penetration between a victim who is 17 years old and a perpetrator who is 27 years old.

The respondent asserts that we must incorporate the Supreme Court's articulation in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), of what constitutes aggravated felony "sexual abuse of a minor" under section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2018), into the definition of "crime of child abuse" under section 237(a)(2)(E)(i) of the Act. In that case, the Court held that "in the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of 'sexual abuse of a minor' under [section 101(a)(43)(A)] requires the age of the victim to be less than 16." Id. at 1572-73. Applying Esquivel-Quintana, the respondent argues that his statutory rape offense is not a "crime of child abuse" under the Act because it reaches crimes against victims who are 16 and 17 years old.

However, in Esquivel-Quintana, 137 S. Ct. at 1567, the Supreme Court addressed a narrow question, namely, "whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under" section101(a)(43)(A) of the Act. The Court found it highly significant that the phrase "sexual abuse of a minor" appears in the "aggravated felony" definition and "in the same subparagraph as 'murder' and 'rape[]'—among the most heinous crimes [the Act] defines as aggravated felonies." Id. at 1570 (emphasis added) (citations omitted). The Court reasoned that this "structure" of section 101(a)(43)(A) of the Act supports the conclusion that Congress intended the phrase "sexual abuse of a minor" to "encompass[] only especially egregious felonies." Id. The Court concluded that "for a statutory rape offense to qualify as sexual abuse of a minor under the [Act] based solely on the age of the participants, the victim must be younger than 16." Id. Notably, the Court left open the possibility that "sexual abuse of a minor" could cover offenses involving a "special relationship of trust," where both participants were over the age of 16 and engaging in consensual sexual activity. Id. at 1572.

We do not assume that the Court would lightly extend its narrow holding regarding "sexual abuse of a minor" to the distinct statutory phrase "crime of child abuse" under section 237(a)(2)(E)(i), which is not an aggravated felony and does not have the same structure as section 101(a)(43)(A) of the Act. See, e.g., Matthews v. Barr, 927 F.3d 606, 616 (2d Cir. 2019) (acknowledging that the "holding in Esquivel-Quintana was narrow and its decision did not relate to the [Act's] crime of child abuse provision"); Mondragon-Gonzalez v. Att'y Gen. of the U.S., 884 F.3d 155, 160 (3d Cir. 2018) (holding that "Esquivel-Quintana has no application . . . at all" to the definition of a "crime of child abuse" under section 237(a)(2)(E)(i)). Moreover, as noted, the narrow holding of Esquivel-Quintana declined to conclusively resolve whether consensual sexual activity between persons ages 16 and older who are in a special relationship of trust can be classified as "sexual abuse of a minor."

Significantly, the United States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case arises, has concluded that "Esquivel-Quintana has no application" to whether a State offense qualifies as a "crime of child abuse" under the Act because the "Court's narrow holding didn't relate to the child-abuse provision in [section 237(a)(2)(E)(i)], mandate a particular approach to statutory interpretation, or cast doubt on the Board's definition of child abuse." Garcia v. Barr, 969 F.3d 129, 134 (5th Cir. 2020); see also Adeeko v. Garland, No. 19-60703, 2021 WL 2709353, at *2-3 (5th Cir. July 1, 2021) (concluding that Garcia controls in the context of a "crime of child abuse" and upholding the conclusion that Esquivel-Quintana "only applie[s] to convictions for 'sexual abuse of a minor'" under section 101(a)(43)(A)).

In Garci...