State Misdemeanant, Federal Felon: Adolescent Sexual Offenders and the INA by Michael J. Higdon,University of Tennessee College of Law February 8, 2016
Abstract: At the age of eighteen, Alberto Velasco-Giron had sex with his fifteen-year old girlfriend. As a result, he was deported.
To understand how this could happen, we have to back up a bit. In 1988, Congress amended the Immigration and Nationality Act (“INA”) to state that any alien who commits an “aggravated felony” is subject to deportation. Since that time, Congress has continuously supplemented the definition of aggravated felony to include more and more crimes, the result being that noncitizens were subject to deportation for an ever-growing list of offenses. In 1996, the definition was revised yet again to include “sexual abuse of a minor.” And, on first blush, most would agree that an alien who sexually abuses a child should be removable from the United States.
The problem, however, is that the term Congress chose to use was “sexual abuse of a minor,” not “sexual offense involving a minor.” As a result, some state convictions might involve both sex and minors, but may not necessarily be abusive. Statutory rape provides a prime example of this class of convictions. Today, statutory rape law is quite different than it was when first introduced. No longer is the crime gender-specific and no longer does the crime equally penalize all sexual activities with children under the age of consent. Instead, most states have enacted Romeo and Juliet exceptions, exempting consensual sexual contact between adolescents close in age from the harsher penalties that flow from other forms of child rape. In most instances, activities falling under such an exception qualify as either a misdemeanor or no crime whatsoever — the justification being that these crimes typically are not abusive in nature. Indeed, going back to Velasco-Giron’s case, although he was convicted of statutory rape, his crime was labeled a misdemeanor and his only punishment was unsupervised probation.
Unfortunately, it would take the Board of Immigration Appeals (“BIA”) almost twenty years to recognize that statutory rape is not inherently “abusive.” As a result, during that time, immigration law largely required that individuals like Velasco-Giron be deported, equating their statutory rape convictions with “sexual abuse of a minor” and, thus, an aggravated felony under the INA. In 2015, however, the BIA reconsidered its earlier position and held that some “meaningful age differential” is required before a statutory rape conviction will categorically qualify as an aggravated felony.