Esquivel-Quintana v. Sessions, Attorney General

For statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16 years.

Petitioner is a citizen of Mexico and a lawful permanent resident of the United States. Petitioner pleaded no contest in the Superior Court of California to a statutory rape offense for “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator.” California defines a minor as a person under the age of 18. The Immigration and Nationality Act (INA) provides that “[a]ny alien who is convicted of an aggravated felony after admission” to the United States may be removed. Under the INA, an aggravated felony includes sexual abuse of a minor. An Immigration Judge determined that Petitioner’s conviction qualified as “sexual abuse of a minor” and ordered Petitioner to be removed to Mexico. The Board of Immigration Appeals dismissed Petitioner’s appeal and the Sixth Circuit denied his petition for review. To determine whether a conviction qualifies as an aggravated felony under the INA, the court uses a categorical approach by considering whether the state statute of conviction categorically fits within the generic federal definition of a corresponding aggravated felony. Thus, Petitioner’s state conviction qualifies as an aggravated felony under the INA only if the least of the acts criminalized by the state statute falls within the generalized federal definition of sexual abuse of a minor. The least of the acts criminalized by the California statute is consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21. However, according to reliable dictionaries, a closely related federal statute, and state criminal codes, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16. The California statute does not categorically fall within this generalized federal definition. Therefore, a conviction under the California statute is not an aggravated felony under the INA and Petitioner is not subject to removal. REVERSED.