Tuesday, August 11, 2009

'Sexual abuse of a minor' in immigration law

(My thanks to IntLawGrrls for the opportunity to contribute this guest post on my scholarship)

When Juan Elias Estrada-Espinoza, a lawful permanent resident of the United States, was 20 years old, he met and started a relationship with a woman four or five years younger than himself. The couple lived with Estrada-Espinoza’s parents and raised a child together. Several years later, however, the state of California convicted Estrada-Espinoza of statutory rape. The Department of Homeland Security then instituted removal proceedings against Estrada-Espinoza, who now qualified as a deportable “aggravated felon” under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act.
In part, an “aggravated felon” is defined by that Act as a person who commits “murder, rape, or sexual abuse of a minor.” While the first two offenses appear relatively uncontroversial, courts have split over the correct interpretation of “sexual abuse of a minor.” Some courts (the U.S. Courts of Appeals for the Second, Third, Fifth, Seventh, and Eleventh Circuits), following the interpretation of the Board of Immigration Appeal, have chosen to apply the definition of “sexual abuse” as defined by 18 U.S.C. § 3509(a)(8), a federal provision construing the rights of child witnesses. This definition covers offenses against all children (anyone under 18), indecent exposure offenses, and does not include an age-span gap provision (permitting an adult to engage in sexual activity with a child who is within four or five years of the adult’s age). Thus, courts adhering to § 3509 could deport a legal alien convicted of indecent exposure, or one who had engaged in sexual activity with a peer (i.e., an 19 year old who had sex with a 17 year old).
With its the recent decision in Estrada-Espinoza v. Mukasey, however, the Ninth Circuit rejected the § 3509 approach of other appellate courts. The Ninth Circuit instead preferred the definition of “sexual abuse of a minor” embedded in 18 U.S.C. § 2242 et seq., provisions in substantive federal criminal law. This narrower definition excludes indecent exposure offenses, criminalizes only sexual contact with children 16 years or younger, and includes a four-year age-span gap provision. The 19 year old convicted of statutory rape based on his relationship with a 15 year old would be safe from deportation, as would an adult who repeatedly exposed himself to a 5 year old, or a 50 year old who had consensual sex with a 16 year-old.
This circuit split presents an opportunity to consider how we want immigration law to be applied, and what we believe to be the purpose of statutory rape laws. Currently, this split is resulting in the uneven and unfair application of deportation proceedings to legal aliens; an alien in one state might be deported for behavior that an alien just over the border can undertake in safety.
Deportation is severe in its consequences. Yet immigration law is considered civil, not criminal, law, a categorization that means aliens are not afforded many of the protections that criminal defendants enjoy, such as right to counsel. On account of this situation, a principle of lenity long-standing in immigration law holds that ambiguities should be resolved in favor of the alien. As Congress passes more and more restrictive laws towards legal aliens, it is perhaps more important than ever before to give aliens the benefit of the doubt, and to choose a narrower definition of “sexual abuse,” one that would result in fewer deportations.
Of course, in resolving ambiguities in favor of the alien, it is crucial that the law not relax its protection of sexually abused minors.
Statutory rape law, initially created to protect the chastity of virtuous young females, has developed to encompass competing feminist concerns. On one hand, feminists fear that looser statutory rape laws will simply enable the sexual exploitation of the children by unscrupulous adults. On the other hand, overly strict statutory rape laws will strip consenting youths of their ability to define and determine their own sexual behavior. The legal line must be drawn in a way which balances both of these concerns.
The fact that most state statutory rape laws both allow for a lower-than-18 age of consent and encompass an age-span gap provision indicates a general comfort with allowing older teenagers a certain amount of sexual autonomy. The definition in the Immigration and Nationality Act of “sexual abuse of a minor” should reflect society’s general determination of the proper balance between youth protection and sexual autonomy. Coupling this feminist-approved purpose of statutory rape laws with the principle of lenity, courts would be wise to follow the Ninth Circuit’s approach and apply the narrower definition of “sexual abuse of a minor,” drawn from the federal criminal code, to aliens facing deportation as aggravated felons.

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