Matter of Esquivel-Quintana: BIA Clarifies When Statutory Rape is an Aggravated Felony
- Introduction: The Matter of Esquivel-Quintana
- BIA Decision in the Matter of Esquivel-Quintana
- Conclusion: Clarifying When Statutory Rape Statutes are Immigration Aggravated Felonies
Update (June 1, 2017): In Esquivel-Quintana v. Sessions, 581 U.S. ___ (2017) [PDF version], the Supreme Court held that a statutory rape offense that criminalizes sexual intercourse based solely on the age of the participants is only categorical aggravated felony sexual abuse of a minor under section 101(a)(43)(A) of the Immigration and Nationality Act (INA) if it requires the age of the victim to be less than 16. To the extent that the BIA held otherwise, the Matter of Esquivel-Quintana is no longer good law. After reading this article, please see our comprehensive article on the Supreme Court decision to learn about the new law on this important issue [see article].
Introduction: The Matter of Esquivel-Quintana
On January 15, 2016, the Sixth Circuit in Esquivel-Quintana v. Lynch, No. 15-3101 (6th Cir. 2016) [PDF version] upheld the Board of Immigration Appeals' (BIA) 2015 precedent decision in the Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015) [PDF version]. In the Matter of Esquivel-Quintana, the BIA held that a California statute for “unlawful intercourse with a minor” was categorically an aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act (INA) (for “sexual abuse of a minor”) [see our section on the statute]. In this article, we will discuss the BIA's holding in the Matter of Esquivel-Quintana, the reasoning behind the decision, and its broader effect on immigration law regarding criminal aliens. To read about the Sixth Circuit decision and the issues it discusses regarding federal appeals of BIA decisions, please follow this link.
BIA Decision in the Matter of Esquivel-Quintana
Holding:
1. A statutory rape offense that may include a 16- or 17-year old victim must require a “meaningful age differential” between the victim and the perpetrator in order to be categorically “sexual abuse of a minor” under section 101(a)(43)(A) of the INA.
2. A California statute that requires the minor victim to be “more than three years younger” the perpetrator is a “meaningful age differential” and constitutes an aggravated felony under section 101(a)(43)(A).
Facts:
The Matter of Esquivel-Quintana concerned a lawful permanent resident (LPR) [the respondent] from Mexico who, in April of 2009, was charged with two counts of unlawful intercourse with a minor who was more than three years younger than him, in violation of section 261.5(c) of the California Penal Code. The respondent was convicted of one count and sentenced to 90 days in jail and 5 years of probation. Following his conviction, the respondent was placed in removal proceedings on account of having been convicted of an aggravated felony under section 101(a)(43)(A) for “sexual abuse of a minor.” The Immigration Judge (IJ) determined that the respondent's conviction under section 261.5(c) of the California Penal Code was for an aggravated felony under section 101(a)(43)(A).
Issue:
On appeal, the BIA sought to determine whether a conviction under 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,” which would therefore render it an aggravated felony under section 101(a)(43)(A). In other words, the BIA set forth to determine whether all conduct criminalized by section 261.5(c) of the California Penal Code constituted an aggravated felony under section 101(a)(43)(A) of the INA.
Analysis and Decision in the Matter of Esquivel-Quintana:
Citing the provisions of the California Penal Code that the respondent was convicted of violating, the BIA established that the three elements of the offense that the respondent was convicted of violating were: “(1) unlawful sexual intercourse (2) with a minor under 18 years old (3) who is more than 3 years younger than the perpetrator.”1
In its precedent decision in the Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995-96 (BIA 1999) [PDF version], the BIA determined the ordinary meaning of “sexual abuse” by referring to the definition of the term used in 18 U.S.C. 3509(a)(8) (1994) [note: this is not an immigration statute]. The BIA noted that the Federal statute defined “sexual abuse” as “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicating conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.” Subsequently in the Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006) [PDF version], the BIA 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).
Following the Supreme Court decision in Descamps v. United States, 133 S.Ct 2276 (2005) [see our article], the BIA found that the California statute was not divisible, and therefore that it was bound to apply the “categorical approach” instead of the “modified categorical approach.” Under this mode of analysis, a conviction under the statute would only constitute an aggravated felony under the INA if every possible conviction under the statute constitutes an aggravated felony. Accordingly, this meant that the BIA could not analyze underlying facts of the case, such as the age of the respondent and the victim.
The respondent relied upon Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. 2008) [PDF version] which held that section 261.5(c) of the California Penal Code is broader than the generic definition of sexual abuse of a minor. Specifically, the Ninth Circuit held that a statute criminalizing statutory rape to define a “sexual abuse of a minor” offense may never include 16- or 17-year olds as victims and must require a 4-year age difference between the victim and the perpetrator. However, the BIA was not bound by the Ninth Circuit's decision, even though the Ninth Circuit has jurisdiction over California, because the case arose out of the Sixth Circuit. Accordingly, the BIA noted that it had previously held that section 261.5(c) was “sexual abuse of a minor” in a different case, and the Seventh Circuit deferred to its interpretation in Velasco-Giron v. Holder, 768 F.3d 723 (7th Cir. 2014) [PDF version], and held that “outside of the Ninth Circuit, a violation of section 261.5(c) of the California Penal Code is categorically 'sexual abuse of a minor'” Furthermore, the BIA stated that “we are not prepared to hold that a 16- or 17-year-old categorically cannot be the victim of sexual abuse.”
To support its position, the BIA noted that at the time Congress passed section 101(a)(43)(A), numerous states had “defined sexual abuse of a minor, in part, by the victim being 16 or 17 years old.” Accordingly, the BIA did not believe that Congress intended to categorically exclude such convictions from constituting immigration aggravated felonies for “sexual abuse of a minor.”
However, citing a litany of circuit decisions and the Matter of Rodriguez-Rodriguez, the BIA recognized that “there should be a distinction between sexual offenses involving older adolescents and those involving younger children” in determining whether “sexual abuse of a minor” occurred. The BIA saw no cause to deviate from its holding in Matter of V-F-D- that in order for a “minor” to be a victim of “sexual abuse of a minor,” he or she must be under 18 years old (rather than lower the age to 17 or 16). However, the BIA sought to clarify that “in the context of State statutory rape offenses, a statute that includes 16- or 17-year-olds must also contain a meaningful age differential to constitute 'sexual abuse of a minor'” (emphasis added). The BIA noted that this holding is “limited to sexual abuse statutes that may include 16- or 17-year-olds as victims and do not make lack of consent an element of the offense.” Furthermore, the BIA noted that it does not apply to other types of sexual crimes.
The BIA noted the many ways that different states codify statutory rape offenses, thus making it difficult to apply to determine general rules for when such offenses fall under the INA's provision for “sexual abuse of a minor.” Accordingly, the BIA stated that each such statute must be evaluated individually and define “sexual abuse of a minor” in terms of the INA “on a case-by-case basis.”
In the instant case, the BIA held that the 3-year age difference in the California statute was “meaningful,” and therefore a conviction under the California statute is categorically “sexual abuse of a minor.”
Conclusion: Clarifying When Statutory Rape Statutes are Immigration Aggravated Felonies
The BIA's analysis in the Matter of Esquivel-Quintana shows that determining when a statutory rape offense is categorically an aggravated felony for “sexual abuse of a minor” will rely upon the specific construction of the state-level statute in question. Indeed, as we noted, the BIA emphasized that its holding is limited to sexual abuse statutes that may involve 16- and 17-year-olds and do not involve a “lack of consent.”
The Matter of Esquivel-Quintana establishes that a statutory rape offense that includes 16- and 17-year-olds as potential victims may be categorically an aggravated felony if the statute requires a “meaningful age difference.” Interestingly, the BIA did not explicitly define “meaningful” in this context. The Matter of Esquivel-Quintana shows that a 3-year age differential in the context of the California statute is “meaningful.” However, it is unclear where how small the age differential would have to be for the BIA to find that it is not “meaningful.”
Also of note, it is important to remember that in most cases, the BIA will only look at the language of the statute that an alien was convicted of violating, and not at the underlying facts of the case (follow this link for a more detailed discussion of why this is). In the case if the Matter of Esquivel-Quintana, the specific age of the respondent and the victim was not relevant to the BIA's decision. The only question that the BIA was permitted to consider was whether any possible conviction under the statute would be for “sexual abuse of a minor” as found in section 101(a)(43)(A) of the INA.
An immigrant or nonimmigrant who is facing immigration proceedings on account of an immigration aggravated felony conviction should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to assess the situation and determine whether a plausible path exists toward obtaining immigration relief.
Please remember to read our article on the Sixth Circuit denying Esquivel-Quintana's appeal of the BIA decision [see article].
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