UPDATE: What Constitutes "Sexual Abuse of a Minor" For Immigration Purposes? [June 7, 2017] [open pdf - 138KB]
"UPDATE: On May 30, 2017, the Supreme Court issued a decision in Esquivel-Quintana v. Sessions, holding that, in the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the term 'sexual abuse of a minor'-as employed by the Immigration and Nationality Act (INA)-requires the age of the victim to be less than 16. The Court based its holding on legal dictionary definitions of 'age of consent,' as well as provisions of the INA which 'suggest[ed] that sexual abuse of a minor encompasses only especially egregious felonies.' The Court also considered 18 U.S.C. § 2243(a), the 'closely related' federal criminal statute for sexual abuse of a minor, as further evidence of the age requirement under the INA. Finally, the Court turned to state statutory rape provisions, the majority of which set the age of consent at 16, for additional guidance. Based on this context, the Court reversed the Board of Immigration Appeals' interpretation of 'sexual abuse of a minor,' which had included statutory rape offenses where the victim is under 18. Notably, because the Court determined that there was no ambiguity in the meaning of 'sexual abuse of a minor,' the Court declined to address whether the rule of lenity (which calls for resolving any ambiguity in the defendant's favor) applied, or whether the Board's interpretation was subject to deference. The Court, however, limited its holding to statutory rape offenses based solely on the ages of the participants, and it left open the questions of whether sexual abuse of a minor requires a particular age differential between the victim and the perpetrator, or whether the offense includes sexual intercourse involving victims over the age of 16 that is abusive because of the nature of the relationship between the participants."
CRS Legal Sidebar, June 7, 2017
Federation of American Scientists: http://www.fas.org/sgp/crs/index.html