Attempted Sexual Abuse of Minor = Aggravated Felony?

In the twenty-five years that we have been practicing law, both Greg Hill and Alex Griggs have learned how careful an attorney must be in almost every criminal case.  This is particularly true in sex offense cases involving non-citizens.  There are ways to avoid adverse immigration consequences in most cases, but one must work hard not only to find an alternative resolution that is possible and that the People will cooperate with.

The following summary of a U.S. Court of Appeals ruling from the Ninth Circuit exemplifies this reality.  The case arose in Nevada, but the Ninth Circuit ruling applies to all states in the Ninth Circuit, so it applies to California.

Mr. Gilberto Azael Leon Perez, age 26 in 2024, was lawfully admitted from Mexico to the United States on a U3 nonimmigrant visa.  In 2018, he successfully filed for adjustment of status and became a legal permanent resident.  

In 2022, Mr. Perez was convicted of attempted lewdness with a child under the age of 14 in Nevada.  He was sentenced to a term between 72 and 180 months in prison, but the judge suspended the sentence and placed him on probation.

The Department of Homeland Security charged him as removable for having been convicted of an aggravated felony of “attempt to commit sexual abuse of a minor.”  The Immigration and Nationality Act (“INA”) authorizes the removal of any noncitizen who, after admission to the United States, “is convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii).  The INA defines “aggravated felony” to include, among other offenses, “sexual abuse of a minor” (Id. § 1101(a)(43)(U)).  

The Immigration Judge (IJ), applying Ninth Circuit precedent (Esquivel-Quintana v. Sessions (2017) 581 U.S. 385 (applied to statutory rape)), found that the conviction under Nevada law rendered Mr. Perez removable.  The judge found that the Nevada attempt statute is a categorical match to 8 U.S.C. § 1101(a)(43)(U), explaining that while the Nevada statute was overbroad, it was divisible with respect to the age of the victim.  The IJ applied the modified categorical approach and found that Mr. Perez was convicted of a sex offense which required the victim to be under age 14.   

The categorical approach involves comparing the legal elements of the offense, rather than the particular facts underlying the conviction, when comparing a state court conviction to a particular federal generic offense.

Mr. Perez then appealed this finding to the Board of Immigration Appeals (BIA), but the BIA dismissed the appeal, thereby affirming the IJ’s removal order.

Mr. Perez then appealed to the U.S. Court of Appeals for the Ninth Circuit in Las Vegas, arguing that the “generic definition” of sexual abuse of a minor is irreconcilable with Esquivel-Quintana, supra, because it encompasses conduct that does not meet the generic federal offense.  This is a common argument, for example, that attorneys in DUI cases, for example, argue regularly when seeking to bar an out-of-state conviction as a prior DUI under California law.  

The Ninth Circuit disagreed with Mr. Perez and affirmed the BIA.

The Ninth Circuit explained that the “generic definition” of sexual abuse of a minor encompassed conduct or attempted conduct that (1) was sexual; (2) involved a minor; and (3) was abusive. United States v. Medina-Villa (9th Cir. 2009) 567 F. 3d 507, quoting Quintero-Cisneros, supra, 891 F. 3d at 1200.

The Ninth Circuit then explained that the BIA did not err in finding that Mr. Perez’s conviction met the generic definition of sexual abuse of a minor.

We present this summary as a bit of a cautionary tale.  While avoiding prison time was accomplished, which may seem to some to be a victory for Mr. Perez, he will now be deported and unable to re-enter the United States, which may be a consequence far more severe than prison.  We hope that his attorney explained to him the immigration consequences of his plea and explored immigration neutral pleas, but was unsuccessful in having the prosecutor agree to such a resolution.