https://www.justice.gov/eoir/page/file/1419101/download
Matter of Jose AGUILAR-BARAJAS, Respondent
Decided July 30, 2021
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).
(2) The Supreme Court’s holding that a statutory rape offense does not qualify as “sexual abuse of a minor” based solely on the age of the participants, unless it involves a victim under 16, does not affect our definition of a “crime of child abuse” in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent’s statutory rape offense falls within this definition. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), distinguished.
FOR RESPONDENT: Sean Lewis, Esquire, Nashville, Tennessee
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate Legal Advisor
BEFORE: Board Panel: HUNSUCKER, Appellate Immigration Judge; NOFERI, Temporary Appellate Immigration Judge. Concurring and Dissenting Opinion: PETTY, Appellate Immigration Judge.
HUNSUCKER, Appellate Immigration Judge [Majority Opinion]
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Key Quote From Judge Petty’s Dissent:
The Supreme Court has held that the generic age of consent is 16. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 (2017). Accordingly, absent aggravating circumstances, consensual sexual activity between an adult and a minor over 16 is not categorically “abusive.” If a statutory rape statute sweeps more broadly than the generic definition (in other words, if it sets the age of consent above 16) it cannot form the predicate offense for removability under section 237(a)(2)(E)(i) of the Act for having been convicted of a crime of child abuse. There can be no categorical “child abuse” where the criminalized conduct is not categorically abusive. Here, the respondent was convicted of violating a statute that sets the age of consent at 18. Because the Supreme Court has left us no other option, I would dismiss the DHS’s appeal and terminate the respondent’s removal proceedings.
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In the Pereira fiasco, the BIA’s unwillingness to follow the Supremes’ lead when it conflicted with their “mission” of helping out DHS enforcement (a stated objective of Jeff “Gonzo Apocalypto” Sessions) created big time practical problems that could and should have been avoided.
🇺🇸Due Process Forever!
PWS
08-01-21