BIA: Sexual abuse of a minor based on statutory rape of 16-or 17-year-old must include meaningful age differential

By University of Denver Sturm College of Law

Jan 27, 2015

The Board of Immigration Appeals held that a statutory rape offense must include, as an element, a meaningful age difference between the abuser and victim in order to be classified as sexual abuse of a minor, a type of aggravated felony. Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015). Board Member Malphrus wrote the panel’s opinion.

This case involved an LPR convicted of unlawful intercourse with a minor more than three years younger, a violation of Cal. Penal Code § 261.5(c). An IJ concluded that this offense constituted sexual abuse of a minor under INA § 101(a)(43)(A). On appeal, the BIA ultimately agreed.

To get there, the Board began by reiterating two existing requirements: that sexual abuse of a minor involves “sexual abuse” as articulated in Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), against a person who is under 18 years old as required by Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006). Matter of Esquivel-Quintana, 26 I&N Dec. at 471. Adding to the this framework, the Board explained that the risk that a minor will be coerced into sexual activity “is particularly great when the victim is not in the same peer group” as the abuser. Id. at 474. To ensure that a particular crime involves only an abuser and victim who are not in the same peer group, the Board added a “meaningful age differential” to the sexual abuse of a minor analysis. Id. at 476.

Because the BIA was quite clear that this decision applies only to those crimes that do not require lack of consent as an element. Id. at 475. As such, this decision does not affect analyses of the rape type of aggravated felony, also included in INA § 101(a)(43)(A).

The Board made much of the fact that it was applying the categorical approach to statutory analysis under which courts “may not look to any of the facts that form the basis of the conviction.” Id. at 472. “Instead, we look only to the minimum conduct that has a realistic probability of being prosecuted under the California statute.” Id. The Board then concluded that there is a realistic probability of a prosecution in California involving a 16- or 17-year-old victim. Interestingly, the Board did not provide any support for this conclusion. It didn’t point to a single authority. It simply explained, “We believe that sexual abuse of such a minor by an older person may occur in certain circumstances, and there is a realistic probability of prosecution for such abuse.” Id.

Is this was constitutes a sufficient argument in the Board’s view? Courts usually require more from attorneys for migrants than mere conjecture. The Board, however, doesn’t appear to take that approach. If it’s going to adopt such a limited requirement for itself, hopefully it will do the same for parties. No one benefits from a double standard.

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