Michael Higdon

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University of Illinois Law Review


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.

In the attached article, State Misdemeanant, Federal Felon: Adolescent Sexual Offenders and the INA, I argue that the BIA’s most recent interpretation, although a move in a right direction, is — just like its earlier interpretation — unreasonable and, thus, not subject to deference by the federal courts. Instead, the only reasonable interpretation of the term “sexual abuse of a minor” is one that is in accord with existing federal statutes defining the actual crime of “sexual abuse of a minor” — an approach that would exempt far more misdemeanor statutory rape convictions than the BIA’s “meaningful age differential” standard currently would allow. Such a conclusion comports not only with Chevron, but with principles of statutory construction and also the rule of lenity.

Although some scholars have commented generally on the treatment of statutory rape convictions under the INA, this is the first article to analyze the aggravated felony provision through the lens of statutory rape law in the United States, focusing on the history and the development of that law as a means of better illustrating the mismatch between the BIA’s interpretation and the current understanding of statutory rape. This is also the first article to explore the impact of the BIA’s 2015 ruling, which attempted to modify and soften its earlier rulings — rulings the circuit courts had used to classify almost all statutory rape convictions, even those classified as misdemeanors, as aggravated felonies under the INA. Finally, this article is likewise the first to propose a comprehensive solution to the dilemma posed by having to discern which statutory rape convictions satisfy the requirement of “abuse” under the INA and which do not.

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