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The Ninth Circuit Holds That Consensual Sex With A Minor Is Not A Crime Involving Moral Turpitude; Update On Ninth Circuit Law

by Kathy Brady, Esq.

A conviction for consensual sex with a minor, a/k/a statutory rape, has been very dangerous for non-citizens, and criminal defense counsel still must avoid pleading to this offense. 
 
However there are some lights at the end of this tunnel for immigration practitioners.   In a critical victory, the Ninth Circuit held that the offense is not a crime involving moral turpitude.  Moreover there is some hope that in 2008 the court will reconsider en banc its prior ruling that the offense is an aggravated felony as sexual abuse of a minor.

This is a brief update on the law in the Ninth Circuit.
 
Moral turpitude.  The Ninth Circuit held that consensual sex with a minor is not categorically a crime involving moral turpitude.  Quintero-Salazar v. Keisler (9th Cir. Oct. 9, 2007).   
 
This opens key defense strategies that permit a noncitizen to apply for admission or adjustment, despite the fact that under current precedent a statutory rape conviction is treated as an aggravated felony.  There is no ground of inadmissibility based on conviction of an aggravated felony per se, so the only way that a statutory rape conviction causes inadmissibility is under the moral turpitude ground.  Now that the offense is held not to involve moral turpitude, and therefore does not cause inadmissibility, the conviction is not a statutory bar to re-entry as a permanent resident (as in Mr. Quintero -Salazar’s case), admission, adjustment, or re-adjustment to permanent residency. 
 
Note that the conviction at issue was for Calif. P.C. §261.5(d), which prohibits sex between a person 21 years or over and a person under the age of 16.   The court found that this was not categorically (i.e., necessarily) a moral turpitude offense.   Because the court found no reviewable evidence in the record of conviction to provide more details about the offense, the court found that the conviction was not of a crime involving moral turpitude.
 
Statutory rape as the aggravated felony “sexual abuse of a minor.”  In Afridi v. Gonzales[1]the Ninth Circuit held that in immigration proceedings the term sexual abuse of a minor reaches a misdemeanor conviction under Calif. P.C. §261.5, which prohibits consensual sexual intercourse with a person under the age of 18 by a person who is older by three years or more.  Since then, other Ninth Circuit panels adjudicating federal criminal cases have come to the opposite conclusion as Afridi, justifying the difference by the fact that Afridi was forced to “defer” to the BIA’s approach.[2] 
 
In Estrada-Espinoza v. Gonzales (9th Cir. Aug. 16, 2007), the panel stated that it was forced to follow Afridi in immigration proceedings, but two judges in a concurrence argued that Afridi was incorrectly decided on the merits.  A petition for rehearing en banc of Estrada-Espinoza is pending at this writing. 
 
Statutory rape and other aggravated felony classifications. In a questionable opinion, the Ninth Circuit in Rivas-Gomez v. Gonzales held that a conviction for consensual sex with a 15-year-old is an aggravated felony as rape.  However, the opinion was withdrawn because the court found that it had not had jurisdiction to reach the issue,[3] so there is now no published Ninth Circuit opinion finding that consensual sex with a minor is rape.
 
In Valencia v. Gonzales[4] the Ninth Circuit held that statutory rape is not an aggravated felony as a “crime of violence” under the applicable standard at 18 USC §16.   Note that this holding is not affected by the recent decision in United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007).  There the Ninth Circuit held that Calif. P.C. 261.5 meets a far broader definition of a "crime of violence" under a federal Sentencing Guidelines section, which explicitly includes “statutory rape.”  This does not control for 18 USC §16.
 
Particularly serious crime, violent or dangerous crime.   In Afridi, supra, the Ninth Circuit held that statutory rape is not categorically a “particularly serious crime” that will block withholding of removal.   In Rivas-Gomez, supra, the Ninth Circuit held that statutory rape is not categorically a “violent or dangerous” offense that will trigger a strong presumption against a grant of a waiver of adjustment for an asylee or refugee, asylum, or a §212(h) waiver.
 
Many thanks to Zach Nightingale and others at Van Der Hout, Brigagliano and Nightingale, who represented Mr. Quintero-Salazar and are representing amici in the petition for re-hearing en banc in Estrada-Espinoza.   
                                                                       
For further discussion, see Brady, Tooby, Mehr, Junck Defending Immigrants in the Ninth Circuit, §9.32 (www.ilrc.org/criminal.php).   See also statistics and materials in the ILRC’s amicus brief in Valencia v. Gonzales, at www.ilrc.org/criminal.php.


Endnotes

1 Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006).
 
2 United States v. Lopez-Solis, 447 F.3d 1201, 1209-10 (9th Cir. 2006) and United States v. Baza-Martinez, 464 F.3d 1010, 1017 (9th Cir. 2006).
 
3 See Rivas-Gomez v. Gonzales, 2007 U.S. App. LEXIS 6606 (9th Cir. Mar. 22, 2007) withdrawing 441 F.3d 1072 (9th Cir. 2006) and providing amended unpublished opinion that does not address the issue of whether sexual abuse of a minor is rape.
 
4 Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006).


About The Author

Katherine Brady, Esq. is a senior staff attorney at the Immigrant Legal Resource Center in San Francisco. Katherine Brady can be reached at the Immigrant Legal Resource Center by phone: 415/255-9499, ext 272, fax: 415/255-9792, or email: kbrady@ilrc.org


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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