In re Esquivel-Quintana, Interim Decision #3824

• Decision Date: 09 January 2015
• Docket Number: Interim Decision #3824
• Citation: 26 I&N Dec. 469
• Parties: Matter of Juan ESQUIVEL-QUINTANA, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 469

Matter of Juan ESQUIVEL-QUINTANA, Respondent

Interim Decision #3824

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

January 9, 2015

(1) For a statutory rape offense that may include a 16- or 17-year-old victim to be categorically "sexual abuse of a minor" under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), the statute must require a meaningful age differential between the victim and the perpetrator. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), and Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006), clarified.

(2) The offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be "more than three years younger" than the perpetrator, categorically constitutes "sexual abuse of a minor" and is therefore an aggravated felony under section 101(a)(43)(A) of the Act.

FOR RESPONDENT: Michael Carlin, Esquire, Ann Arbor, Michigan

FOR THE DEPARTMENT OF HOMELAND SECURITY: Heather A. Moilanen-Miller, Assistant Chief Counsel

BEFORE: Board Panel: PAULEY, GREER, and MALPHRUS, Board Members.

MALPHRUS, Board Member:

In a decision dated August 13, 2013, an Immigration Judge found the respondent removable as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), denied his motion to terminate the proceedings, and ordered him removed from the United States. The respondent has appealed from that decision.¹ The appeal will be dismissed.

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who was admitted to the United States on September 15, 2000, as a lawful permanent resident. In April 2009, he was charged with two counts of unlawful intercourse with a minor more than 3 years younger than he, in violation of section 261.5(c) of the California Penal Code. On May 28, 2009, he was convicted of one count, sentenced to 90 days in jail and 5 years of probation, and prohibited from having contact with the victim. The respondent was placed in removal proceedings following his conviction. The Immigration Judge determined that his conviction was for "sexual abuse of a minor," which is an aggravated felony under section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2012).

II. ISSUE

The issue on appeal is whether the offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be "more than three years younger" than the perpetrator, categorically constitutes "sexual abuse of a minor" and is therefore an aggravated felony under section 101(a)(43)(A) of the Act.

III. ANALYSIS

Section 261.5 of the California Penal Code provides, as it did at the time of the respondent's offense, that "[u]nlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor." It defines a "minor" as "a person under the age of 18 years." Id. Section 261.5(c) provides that "[a]ny person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony." Thus, the elements of an offense under section 261.5(c) of the California Penal Code are (1) unlawful sexual intercourse (2) with a minor under 18 years old (3) who is more than 3 years younger than the perpetrator.

In Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995-96 (BIA 1999), we determined the ordinary meaning of "sexual abuse" by referring to the definition of that term in 18 U.S.C. § 3509(a)(8) (1994), which we found provided useful guidance on the crimes that can reasonably be considered "sexual abuse of a minor" for purposes of section 101(a)(43)(A) of the Act. The Federal statute defined "sexual abuse" as "the employment, use, persuasion, inducement, enticement, or coercion of

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a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children." 18 U.S.C. § 3509(a)(8). Our definition in Matter of Rodriguez-Rodriguez has been given deference by several circuit courts. See, e.g., Restrepo v. Att'y Gen. of U.S., 617 F.3d 787, 795-96 (3d Cir. 2010); Gaiskov v. Holder, 567 F.3d 832, 835 (7th Cir. 2009); Mugalli v. Ashcroft, 258 F.3d 52, 57-60 (2d Cir. 2001).

Subsequently, in Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006), we held that a victim of sexual abuse who is under the age of 18 is a "minor" for purposes of section 101(a)(43)(A) of the Act. See also United States v. Rodriguez, 711 F.3d 541, 559-60 (5th Cir. 2013) (en banc) (adopting the age of 18 as the contemporary, generic meaning of a "minor" for sentencing guidelines purposes). Thus, we have deemed any relevant offense to be "sexual abuse of a minor" if it meets the definition of "sexual abuse" in Matter of Rodriguez-Rodriguez and the victim is under 18 years old, as required by Matter of V-F-D-. In this case, we must expand upon these decisions and consider whether a violation of a statute that involves unlawful sexual intercourse and presumes a lack of consent based on the age of the victim is "sexual abuse of a minor." Such an offense is commonly referred to as "statutory rape," which is "understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute." United States v. Gomez-Mendez, 486 F.3d 599, 603 & n.7 (9th Cir. 2007) (citing Black's Law Dictionary 1288 (8th ed. 2004)).

We begin with relevant context. Previously, under Matter of Lanferman, 25 I&N Dec. 728 (BIA 2012), and other prior Board precedent, if an offense of conviction like the respondent's potentially involved removable conduct, we would employ the modified categorical approach to determine whether the particular crime qualified as "sexual abuse of a minor." In such a case, we would have looked to judicially recognized documents in the record of conviction to determine the actual age of the victim and the age differential between the victim and the offender, as well as any other relevant facts related to the conviction. Id.; see also Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor v. United States, 495 U.S. 575, 602 (1990). However, following Descamps v. United States, 133 S. Ct. 2276 (2013), where the Supreme Court further discussed the application of the Taylor "modified categorical approach" and the definition of a "divisible" statute, we withdrew from Matter of Lanferman and announced that we would follow the law of each circuit as to divisibility. Matter of Chairez, 26 I&N Dec. 349, 354 (BIA 2014). Based on the Supreme Court's analysis in Descamps regarding the limited circumstances under which a statute is divisible and the absence of authority regarding divisibility in a statutory context relevant to this case in

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the United States Court of Appeals for the Sixth Circuit, we conclude that section 261.5(c) of the California Penal Code is not divisible as to the definition of sexual abuse of a minor.

Because we are therefore limited to applying the categorical approach, we may not look to any of the facts that form the basis of the conviction, including the ages of the victim and the offender. This is true even though the judicially recognized documents that were relied on to establish the conviction in the respondent's criminal proceedings are in the record and the facts are not in dispute. Accordingly, despite the inclusion of this uncontested information in the record, we may not consider the age of the victim or the actual age difference between the victim and the offender. Instead, we will look only to the minimum conduct that has a realistic probability of being prosecuted under the California statute. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013).²

The respondent argues that in applying this categorical analysis, the Board must hold that unlawful intercourse with a minor more than 3 years younger than the perpetrator in violation of section 261.5(c) of the California Penal Code is categorically not "sexual abuse of a minor" under section 101(a)(43)(A) of the Act. In support of his argument, he relies on the Ninth Circuit's decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. 2008), where the court concluded that the offense prohibited by section 261.5(c) is broader than the generic definition of "sexual abuse of a minor." According to the court, for a statute criminalizing statutory rape to define a "sexual abuse of a minor" offense, it may never include 16- or 17-year-olds as victims and it must require at least a 4-year age difference between the victim and perpetrator. See id. at 1152, 1158.³ We are not bound by the Ninth Circuit's decision in these

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