Wednesday, October 10, 2007
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Court Overturns Deportation Based on Sex With Minor
By STEVEN M. ELLIS, Staff Writer
A person 21 years of age or older who engages in a sexual act with a minor under 16 years of age does not categorically commit a crime of moral turpitude, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In an opinion by Judge Sidney R. Thomas, the court reversed an order by the Board of Immigration Appeals finding Alberto Rene Quintero-Salazar deportable because his conviction under California Penal Code Sec. 261.5(d) constituted a crime of moral turpitude.
Quintero-Salazar, a Mexican national, entered the United States in 1990, obtained conditional residence in 1992, and became a lawful permanent resident in 1994. His wife, three children and two stepchildren are all U.S. citizens.
In 1998, he pleaded nolo contendere to contributing to the delinquency of a minor, engaging in intercourse with a minor three years his junior, and engaging in intercourse with a minor under 16 years of age while he was 21 years of age or older. He was sentenced to 11 months imprisonment and ordered to attend counseling and other rehabilitation programs.
He was detained on April 2, 2002 by the Immigration and Naturalization Service in San Francisco while attempting to reenter the United States after visiting family in Mexico. Asserting that his conviction involved a crime of moral turpitude, the INS then began removal proceedings and charged him with being an inadmissible alien under Sec. 212 of the Immigration and Nationality Act.
Quintero-Salazar applied to waive the grounds for his exclusion from the country on Jan. 7, 2003, arguing that removal would cause his wife and children extreme hardship. Aliens can apply for such a waiver to avoid hardship to a U.S. citizen spouse or children if they have not been convicted of an aggravated felony.
However, on Feb. 7, 2003, an immigration judge denied the waiver application and ordered Quintero-Salazar removed to Mexico. The judge ruled that the conviction for engaging in intercourse with a minor under 16 years of age while being over 21 years of age was a crime that categorically involved moral turpitude and constituted an “aggravated felony.”
The Board of Immigration Appeals affirmed the judge’s decision, and Quintero-Salazar petitioned the Ninth Circuit for review.
Examining the full range of conduct encompassed by the statute, Thomas disagreed with the lower courts’ rulings. Quoting the U.S. Supreme Court, he declared that a crime of moral turpitude requires willfulness or “evil intent” involving some level of depravity or baseness so far contrary to the moral law that it gives rise to moral outrage.
Observing that the range of conduct criminalized by the statute would include consensual intercourse between a hypothetical college sophomore and a hypothetical high school junior, Thomas concluded that the statute was so broad as to prohibit behavior that was not morally outrageous, even if it was unwise and socially unacceptable.
He also pointed out that the same behavior would be legal in California if the adult and the minor were married, that other states did not criminalize such conduct, and that the state’s stated purpose in passing the law, reducing teenage pregnancies, was practical, rather than moral.
As a result, Thomas opined that a conviction could not categorically constitute a crime of moral turpitude, especially given the fact that the crime was a strict liability offense that did not require any showing of willfulness or evil intent.
Thomas also wrote that the conviction could nevertheless be considered such a crime under a modified categorical approach if judicially noticeable facts would allow the defendant to be convicted of a different offense that did involve moral turpitude. However, the government presented no evidence regarding the underlying facts, Thomas explained.
Thomas was joined in his opinion by Judge Ronald B. Leighton, U.S. District Judge for the Western District of Washington sitting by designation.
Judge Andrew J. Kleinfeld dissented, writing that precedent compelled him to reach the opposite result. Conceding that the majority’s argument was strong, he nevertheless pointed out that the court had previously held statutory rape to be a crime of moral turpitude, and that the court had declared sexual contact with a minor under 16 to be both an aggravated felony and a crime of violence.
“These precedents leave no room, in my view, for us to conclude that the crime is not one of moral turpitude or is not an aggravated felony,” he said.
The case is Quintero-Salazar v. Keisler, No. 04-73128
Copyright 2007, Metropolitan News Company