Eleventh Circuit Holds that a Conviction Under Florida’s Statutory Rape Statute is Not an Aggravated Felony For Immigration Purposes

Non-citizens convicted of certain crimes are deportable.  Certain deportable convictions are worse than others.  Aggravated felonies, as defined in the Immigration and Nationality Act, are the most serious types of criminal convictions that a non-citizen can obtain.  A non-citizen convicted of an aggravated felony will face almost certain deportation.  

Balance of State and Federal PowerThere are many aggravated felonies listed in the statute, but under §101(a)(43)(A) of the Immigration and Nationality ACT (“INA”), an aggravated felony includes murder, rape, and sexual abuse of a minor.  However, the INA doesn’t define “sexual abuse of a minor.” Does the term include offenses that are considered sexual abuse of a minor under federal law?  Under state law? Under both?  


Florida’s Statutory Rape Statute, codified in §800.04(4), criminalizes sexual activity with a minor who is between the ages of 12 years old and 16 years old. But the statute makes no reference to the perpetrator’s age.  It is also a strict liability crime when it comes to age and consent.  In other words, even if the perpetrator didn’t know the age of the minor and the minor consented to the sexual activity, the perpetrator would be guilty if he or she engaged in the sexual activity.  So, a 16 year old could be convicted under this statute of engaging in consensual sexual activity with another 16 year old.  Or a 13 year old could be convicted of engaging in consensual sexual activity with a 16 year old.  

In Leger v. United States Attorney General, the 11th Circuit analyzed Florida’s statutory rape statute to determine whether it categorically fit within the federal definition of sexual abuse of a minor.  The 11th Circuit focused on the lack of any disparity between the perpetrator and the victim.  Sexual abuse of a minor is not defined in the INA.  While under federal law, physical contact is not required to satisfy the sexual abuse of a minor definition, federal law does require an age disparity between the perpetrator and the victim.  The 11th Circuit looked at the 9th Circuit’s requirement that there must be a four year age difference and the 7th Circuit’s opinion that a four year age difference is not required.  

U.S. Eleventh Circuit Court

The 11th Circuit agreed with the 9th Circuit that there must be an age differential between the perpetrator and the minor in order for the offense to be considered sexual abuse of a minor, but disagreed with the four year determination.  Rather, the 11th held in Leger that the age difference between the perpetrator and the minor must be at least one year.  This means that for a state statute to fit the federal generic definition of sexual abuse of a minor, the state statute must require that the perpetrator is at least one year older than the minor.  Because Fla. Stat. 800.04 does not require a one year age difference, a conviction under this statute will not be considered a “sexual abuse of a minor”  aggravated felony.  

It should be noted that the actual facts are irrelevant.  So, even if Mr. Leger was in fact more than 1 year older than the minor, his conviction will still not be an aggravated felony because the statute as a whole is broader than the federal generic definition of sexual abuse of a minor.  So, in the State of Florida, a person convicted of Fla. §847.04(4) will not be considered an aggravated felon for immigration purposes.  However, the aggravated felony provision is only one of many deportable provisions.  Therefore, any person facing any criminal offense and any attorney representing a non-citizen on any criminal defense should reach out to knowledgable immigration counsel experienced with criminal offenses to determine the immigration consequences of the criminal offense under that person’s particular circumstances. 

Immigration Law Services in Orlando and Jacksonville

The attorneys at Lasnetski Gihon Law have an extensive background in both deportation defense and criminal law. Very few immigration attorneys understand criminal law and very few criminal attorneys understand immigration law. Jacksonville immigration lawyer Jeremy Lasnetski understands both. Whether your deportation case involves a criminal conviction or not, we can help you. Orlando immigration lawyer John Gihon focuses on deportation defense in immigration court.  He is a former ICE Attorney who understands how the immigration system works from the inside. He focuses on deportation cases, and he appears before the Orlando Immigration Court on a daily basis.

Jeremy Lasnetski

About the Author: Attorney Jeremy Lasnetski has over 20 years experience and is ready to help you with both criminal and immigration cases. If you have a criminal charge in the state of Florida, it makes all the difference to have attorneys knowledgeable in immigration law to help you navigate the complex legal process. The dedicated and experienced attorneys at Lasnetski Gihon Law are here to stand by your  side through the process. Don’t delay! Call our offices today at 904-642-3332 (Jacksonville) or 407-228-2019 (Orlando area).

Contact Information