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New Published Board of Immigration Appeals Decision Regarding When Statutory Rape is an Aggravated Felony

The Board of Immigration Appeals recently published a decision that provided guidance on when state statutory rape statutes are considered sexual abuse of a minor aggravated felonies. In Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015), the Board held that in order for a consensual sex offense involving a 16 or 17-year old victim (statutory rape) to be considered “sexual abuse of a minor,” (an aggravated felony under INA § 101(a)(43)(A)), there must be a meaningful difference in age between the victim and the defendant. While the Board did not provide a definition for “meaningful difference in age,” they concluded that the more than three-year age difference requirement in the California statute at issue was sufficiently meaningful.

In Florida, this decision will have no practical effect on the immigration consequences of our “statutory rape” statutes. The two primary statues in Florida that are consensual sex offenses that can be considered aggravated felonies under INA § 101(a)(43)(A) (sexual abuse of a minor) are Fla. Stat. §§ 800.04 (lewd acts on a child) and 794.05 (unlawful sexual activity with a child). Fla. Stat. § 800.04 prohibits sexual acts, even consensual ones, with victims between the ages of 12-15. Likewise, Fla. Stat. § 794.05 prohibits sexual acts, even consensual ones, with victims who are 16 or 17 years old with partners who are 24 years old or older.

The Board was quite clear that the “meaningful difference in age” requirement does not apply to statutes that criminalize only consensual sexual acts with victims under the age of 16. Therefore, this decision has no effect on the immigration consequences of a conviction for violating Fla. Stat § 800.04, as the victim under this statute is always sunder the age of 16. A conviction for an offense under Fla. Stat § 800.04 is a categorical aggravated felony-sexual abuse of a minor offense.

The Board’s holding in Matter of Esquivel-Quintana does apply to convictions under Fla. Stat § 794.05 as the victims in this statute have to be 16 or 17 years old. Therefore, in order for Fla. Stat § 794.05 to be an aggravated felony under INA § 101(a)(43)(A) (sexual abuse of a minor), the statute must require a meaningful difference in age between the victim and the defendant. Fla. Stat § 794.05 requires that the defendant be 24 years old or older. Therefore, there must be at least a seven-year age difference between the victim and defendant in order for someone to be convicted of this offense. A seven-year age difference is clearly greater than the three-year age difference the Board found sufficient in Matter of Esquivel-Quintana.

Therefore, Fla. Stat § 794.05 requires a “meaningful difference in age” and likely continues to be a categorical aggravated felony-sexual abuse of a minor offense under INA § 101(a)(43)(A).