Estrada-Espinoza v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN ELIAS ESTRADA-ESPINOZA, 

Plaintiff-Appellee, No. 05-75850

v.

 Agency No.

A76-339-422

ALBERTO R. GONZALES, Attorney

General, OPINION

Defendant-Appellant.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 16, 2006—San Francisco, California

Filed August 16, 2007

Before: Andrew J. Kleinfeld and Sidney R. Thomas,

Circuit Judges, and Ronald B. Leighton,* District Judge.

Per Curiam Opinion;

Concurrence by Judge Thomas

*The Honorable Ronald B. Leighton, United States District Judge for

the Western District of Washington, sitting by designation.

9955

ESTRADA-ESPINOZA v. GONZALES 9957

COUNSEL

Saad Ahmad, Saad Ahmad & Associates, Fremont, Califor-

nia, for the petitioner.

Peter D. Keisler, Assistant Attorney General, David V. Ber-

nal, Assistant Director, and Ernesto H. Molina, Jr. (argued),

Senior Litigation Counsel, Office of Immigration Litigation,

Civil Division, U.S. Department of Justice, Washington, D.C.,

for the respondent.

9958 ESTRADA-ESPINOZA v. GONZALES

OPINION

PER CURIAM:

In this appeal, we consider whether a violation of Califor-

nia Penal Code § 261.5(c), one of California’s statutory rape

provisions, constitutes “sexual abuse of a minor” within the

meaning of 8 U.S.C. § 1101(a)(43)(A). Applying Afridi v.

Gonzales, 442 F.3d 1212 (9th Cir. 2006), we conclude that it

does, and we deny the petition for review.

I

Petitioner Juan Elias Estrada-Espinoza is a native and citi-

zen of Mexico. He entered the United States in 1992, at the

age of 12. He adjusted status to become a lawful permanent

resident on June 25, 1998. The Department of Homeland

Security (“DHS”) placed Estrada-Espinoza in removal pro-

ceedings in 2005, charging him with being removable as an

alien convicted of an aggravated felony. DHS based this

charge on state statutory rape convictions stemming from

Estrada-Espinoza’s relationship with his younger girlfriend.

In June 2001, Estrada-Espinoza met Sonia Arredondo. At

the time of their meeting, Estrada-Espinoza was 20 years old

and Arredondo was either 15 or 16 years old. Estrada-

Espinoza claims that Arredondo and her friends told him she

was 18 at the time of their meeting, and that he did not learn

of her true age until December 2001. The two began dating

sometime after June 2001, and began living together at the

house of Estrada-Espinoza’s parents a few months after they

met. Estrada-Espinoza claims that both sets of parents

approved of the relationship and that he regularly visited his

girlfriend’s parents. After six months of living with Estrada-

Espinoza’s parents, the couple apparently moved to a resi-

dence of their own. During this time, Estrada-Espinoza

worked in various grocery stores to support himself, his girl-

friend, and, eventually, the child they raised together.

ESTRADA-ESPINOZA v. GONZALES 9959

On July 13, 2004, the District Attorney filed statutory rape

charges against Estrada-Espinoza, alleging fourteen counts of

various sex offenses. On October 25, 2004, Estrada-Espinoza

was convicted on four counts, all of them relating to sexual

activity with his girlfriend between November 30, 2001, and

November 30, 2003: unlawful sexual intercourse with a per-

son under 18 and three years younger than defendant, not

defendant’s spouse, Cal. Penal Code § 261.5(c); sodomy of a

person under 18, id. § 286(b)(1); oral copulation of a person

under 18, id. § 288a(b)(1); and sexual penetration by a foreign

object of a person under 18, id. § 289(h). The court sentenced

Estrada-Espinoza to 365 days in county jail, with credit for

time served, on February 15, 2005. It is unclear from the

record how he pled or whether there was a trial.

After DHS commenced removal proceedings, Estrada-

Espinoza admitted the allegations but denied removability and

moved to terminate the removal proceedings. On July 8, 2005,

the Immigration Judge (“IJ”) denied the motion to terminate

the proceedings and found Estrada-Espinoza removable as an

“aggravated felon” under 8 U.S.C. § 1227(a)(2)(A)(iii), as

that term is defined in 8 U.S.C. § 1101(a)(43)(A), the Immi-

gration and Nationality Act. That provision defines “aggra-

vated felony” as the “murder, rape, or sexual abuse of a

minor.” 8 U.S.C. § 1101(a)(43)(A). The IJ appeared to rest

this decision on Estrada-Espinoza’s conviction under Califor-

nia Penal Code § 261.5(c), the statutory rape law criminaliz-

ing sexual intercourse with someone under 18 and three years

younger than the defendant, not the defendant’s spouse. The

IJ relied at least in part on our withdrawn opinion in Valencia

v. Gonzales, 406 F.3d 1154 (9th Cir. 2005), which found that

§ 261.5(c) was a crime of violence and hence an aggravated

felony. (The IJ recognized that Estrada-Espinoza was being

removed for “sexual abuse of a minor,” not a “crime of vio-

lence.”) The IJ did not have the benefit of the Valencia

panel’s amended opinion holding that § 261.5(c) is not a

crime of violence under 8 U.S.C. § 1101(a)(43)(F). Valencia

v. Gonzales, 439 F.3d 1046 (9th Cir. 2006).

9960 ESTRADA-ESPINOZA v. GONZALES

Estrada-Espinoza appealed the IJ’s decision to the Board of

Immigration Appeals (“BIA”), which dismissed the appeal on

October 5, 2005. The BIA found no merit to Estrada-

Espinoza’s argument that because the sexual acts were con-

sensual, “no violence was used and that there is no evidence

of potential harm to the victim.” Instead, referring to defini-

tions of “sexual abuse of a minor” used in the past by this

court and the BIA, the BIA found that a “person who engages

in the described conduct has necessarily exploited that child

for the purpose of sexual gratification. Such exploitation con-

forms to the definition of ‘sexual abuse’ adopted by this

Board . . . and also fits the ordinary, contemporary and com-

mon meaning of the term ‘abuse’ under . . .” Ninth Circuit

precedent. The BIA affirmed Estrada-Espinoza’s status as an

aggravated felon, citing all four of the statutes of conviction.

This timely petition followed.

II

[1] Estrada-Espinoza asks us to decide whether his prior

convictions under various statutory rape laws qualify as

aggravated felonies because they involve the “sexual abuse of

a minor.” 8 U.S.C. § 1101(a)(43)(A). If they do, he is remov-

able as an alien who has been convicted of an aggravated fel-

ony after his admission to the United States. 8 U.S.C.

§ 1227(a)(2)(A)(iii). In making this determination, we employ

the familiar “categorical approach,” looking only at “ ‘the fact

of conviction and the statutory definition of the prior

offense.’ ” United States v. Corona-Sanchez, 291 F.3d 1201,

1203 (9th Cir. 2002) (en banc) (quoting Taylor v. United

States, 495 U.S. 575, 602 (1990)). The categorical approach

dictates that a statutory rape crime qualifies as sexual abuse

of a minor and hence as an aggravated felony “ ‘if and only

if the full range of conduct covered by it falls within the

meaning of’ ” sexual abuse of a minor. Valencia, 439 F.3d at

1049 (quoting United States v. Baron-Medina, 187 F.3d 1144,

1146 (9th Cir. 1999)).

ESTRADA-ESPINOZA v. GONZALES 9961

If the statute criminalizes any conduct that falls outside the

definition of sexual abuse of a minor, we then employ the

“modified categorical approach,” in which the conviction may

be considered an aggravated felony only if “the record

includes documentation or judicially noticeable facts that

clearly establish that the conviction is a predicate conviction

for enhancement purposes.” Corona-Sanchez, 291 F.3d at

1203 (internal quotation marks omitted).

[2] The offenses committed by Estrada-Espinoza include

the same basic elements, differing only in the type of sexual

activity involved. All require one participant to be under age

18, and none require any use of force or coercion. See Cal.

Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1), 289(h). Sec-

tion 261.5(c) is slightly different, however, in that it requires

one participant to be under age 18 and more than three years

younger than the defendant and not the spouse of the defen-

dant. By their plain language, the other statutes do not require

these additional elements.

[3] We recently held that California Penal Code § 261.5(c)

categorically constitutes sexual abuse of a minor under the

generic definition: “[a] conviction under [§ 261.5(c)] meets

the BIA’s interpretation of ‘sexual abuse of a minor’ as

encompassing any offense that involves ‘the employment,

use, persuasion, inducement, enticement, or coercion of a

child to engage in . . . sexually explicit conduct . . . .’ ” Afridi

v. Gonzales, 442 F.3d 1212, 1217 (9th Cir. 2006) (quoting

Matter of Rodriguez-Rodriguez, 22 I & N Dec. 991, 991, 995

(BIA 1999)). Afridi is binding precedent and controls this

case. Because Afridi held that a conviction pursuant to

§ 261.5(c) categorically qualifies as a “sexual abuse of a

minor” under 8 U.S.C. § 1101(a)(43)(A), Afridi, 442 F.3d at

1217, Estrada-Espinoza has been convicted of an aggravated

felony. Afridi also adopted the BIA’s definition of “minor” as

anyone under the age of 18, id. at 1216, 1217; that definition

is controlling and forecloses Estrada-Espinoza’s argument

that “minor” should be defined, for sexual abuse purposes, as

9962 ESTRADA-ESPINOZA v. GONZALES

anyone under age 16 to reflect the age of consent in the

majority of states. Therefore, the BIA and IJ did not err in

denying relief, and we must deny the petition for review.

PETITION DENIED.

THOMAS, Circuit Judge, with whom LEIGHTON, District

Judge, joins, concurring:

I concur in the opinion because there is no principled dis-

tinction to be drawn between this case and Afridi v. Gonzales,

442 F.3d 1212 (9th Cir. 2006). Application of Afridi requires

us to deny the petition.

I write separately to suggest respectfully that Afridi was

incorrectly decided and should be reconsidered.

I

The fundamental problem1 with the statutory analysis in

1

Another difficulty with the reasoning of Afridi is that, although pur-

porting to conduct a categorical analysis under Taylor, the panel arguably

employed the modified categorical approach by analyzing the statute

through the lens of the specific facts involved in Afridi. See 442 F.3d at

1217 (“Mr. Afridi had sexual intercourse with a seventeen-year-old girl

who was more than three years younger than he . . . . Therefore, his

offense falls within [the BIA’s] definition.”) (emphasis added). This

approach is contrary to the Taylor categorical approach, which requires us

to examine the “full range of conduct” embraced by the statute, United

States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999), including

the “least egregious” situation the statute criminalizes, United States v.

Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006). Although Afridi men-

tioned the “full range of conduct” standard, it did not conduct such an

analysis and did not, for instance, examine whether consensual sex

between a 17 year-old boy and a 20-year-old woman, or a person about

to turn 18 and a person who just turned 21, constitutes sexual abuse of a

minor. See id.; Valencia v. Gonzales, 439 F.3d 1046, 1052 n.3 (9th Cir.

2006). Afridi, by contrast, involved a 32-year-old man picking up a 17-

year-old girl on the side of the road and having sex with her for money.

Afridi, 442 F.3d at 1214-15.

ESTRADA-ESPINOZA v. GONZALES 9963

Afridi is that, in contrast to the statutory language and other

decisions of this court, Afridi does not require “abuse” to be

an element of the generic definition.

Because “sexual abuse of a minor” is a non-traditional

offense, United States v. Lopez-Solis, 447 F.3d 1201, 1207

(9th Cir. 2006), we define it “based on the ordinary, contem-

porary, and common meaning of the statutory words,” id.

(internal quotation marks omitted); see also United States v.

Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999). Afridi

deferred to the BIA definition of the offense, namely “the

employment, use, persuasion, inducement, enticement, or

coercion of a child to engage in, or assist another person to

engage in, sexually explicit conduct or the rape, molestation,

prostitution, or other form of sexual exploitation of children,

or incest with children.” Afridi, 442 F.3d at 1215-16 (internal

quotation marks omitted).

The difficulty with this construction is that it does not take

into account the entirety of the crime described by Congress,

“sexual abuse of a minor.” Although the BIA definition, as

construed in Afridi,2 encompasses the terms “sexual” and

“minor,” it does not address the term “abuse.” We have con-

sistently required definitions of “sexual abuse of a minor” to

define and take into account all three terms. See Lopez-Solis,

447 F.3d at 1207 (examining the dictionary definition of

2

It seems to me that a better construction of the BIA definition would

give effect to the phrase “sexual exploitation of children” such that the

phrase would qualify the phrase “sexually explicit conduct.” Under this

reading of the BIA’s definition, sexual abuse of a child would include the

“use . . . of a child to engage in . . . sexually explicit conduct [that is a

form of] sexual exploitation of children . . . .” This reading of the defini-

tion clearly accounts for Congress’ use of the word “abuse” and would

comport with the BIA’s definition of abuse in Rodriguez-Rodriguez, in

which the BIA noted that “[a]buse is defined in relevant part as physical

or mental maltreatment. This definition suggests that the common usage

of the term includes a broad range of maltreatment of a sexual nature

. . . .” Rodriguez-Rodriguez, 22 I & N Dec. at 996.

9964 ESTRADA-ESPINOZA v. GONZALES

“abuse”); United States v. Pallares-Galan, 359 F.3d 1088,

1100 (9th Cir. 2004) (same); Baron-Medina, 187 F.3d at 1147

(examining the “everyday meanings of the words ‘sexual’ and

‘minor,’ ” as well as “ ‘abuse’ ”). Defining “sexual abuse of

a minor” without taking into account the term “abuse” would

presume that Congress meant to cover not “sexual abuse of a

minor,” but “sex with a minor,” rendering the term “abuse”

mere surplusage. Our duty, however, is “to give effect, if pos-

sible, to every clause and word of a statute.” Duncan v.

Walker, 533 U.S. 167, 174 (2001) (internal quotation marks

omitted).

In other decisions, we have construed the word “abuse” as

“ ‘physical or nonphysical misuse or maltreatment’ ” or “ ‘use

or treat[ment] so as to injure, hurt, or damage.’ ” Lopez-Solis,

447 F.3d at 1207 (quoting United States v. Padilla-Reyes, 247

F.3d 1158, 1163 (11th Cir. 2001); Pallares-Galan, 359 F.3d

at 1100). However, the BIA definition, as construed by Afridi,

does not account for abuse. Rather, it permits a conviction

under California Penal Code § 261.5(c) for consensual sexual

intercourse between a young man or woman one day short of

18 years old and a person who just turned 21 to be considered

an aggravated felony in application of immigration law.3

3

There is no question that there is a “reasonable probability,” Gonzales

v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007), that conduct covered by

§ 261.5(c) includes consensual sex between a 17-year-old male or female

and a 21-year-old, as demonstrated by the plain language of the California

statute, see United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007), as

well as by the fact that California courts have upheld convictions in such

cases, see In re Akinremi, 2006 WL 3404799 *1, *2 n.6 (Cal. Ct. App.

2006) (unpublished decision) (defendant, who was 21 at the time of his

guilty plea, had consensual sex with a female who was either almost 17

or 17 years old); People v. Stow, 2006 WL 2671001 *1 (Cal. Ct. App.

2006) (unpublished decision) (27-year-old female teacher had consensual

sex with her 17-year-old male students); People v. Broussard, 2005 WL

776060 *1 (Cal. Ct. App. 2005) (unpublished decision) (22-year-old male

had consensual sex with 17-year-old female); see also People v. Her-

nandez, 393 P.2d 673, 674 (1964) (male defendant had been convicted,

under prior California statutory rape law, for having consensual sex with

a female who was “17 years and 9 months of age”). Indeed, in this very

case, Estrada-Espinoza was charged for conduct occurring up to Novem-

ber 30, 2003, when his girlfriend would have been 17 years old.

ESTRADA-ESPINOZA v. GONZALES 9965

In every decision, other than Afridi, in which we have

examined a statutory rape law applying to victims age 16 and

over,4 we have either found the statute not categorically a

crime of “sexual abuse of a minor” or not categorically a

“crime of violence” (which necessarily eliminates the possi-

bility that statutory rape always contains an aspect of force or

the threatened use of physical force). In addition, we and our

sister circuits have taken great care to distinguish between

statutes applying to victims under 16 years old and those

applying to 16- and 17-year-olds, suggesting that the latter do

not categorically meet the generic definition.

Indeed, we indicated our strong disagreement with Afridi

when we held that a Tennessee statutory rape law similar to

§ 261.5(c) does not involve psychological or physical abuse.

Lopez-Solis, 447 F.3d at 1207-09. In that case, we had to

determine whether a Tennessee conviction for “sexual pene-

tration of a minor under 18 years of age by an individual who

is at least four years older,” id. at 1204, constitutes “sexual

abuse of a minor” and therefore a “crime of violence” under

the 2002 version of the United States Sentencing Guidelines,

id. at 1203. We noted that although we have always held stat-

utory rape laws applying to victims under the age of 16 to

constitute “sexual abuse of a minor,” we had not made the

same holding with regard to laws prohibiting sexual contact

with those 16 and over. Id. at 1206. We explained that “the

age of the victim is material. The age affects whether the con-

duct the statutory rape law covers constitutes ‘abuse.’ ” Id.

More specifically, we held that “[c]onsensual sexual pene-

tration of an individual between the ages of 17 and 18 by a

22 year old does not necessarily involve physical ‘misuse,’

‘injur[y],’ or ‘assault’ ” because neither physical force nor

resulting physical injury are required and because the Tennes-

4

United States v. Melton, 344 F.3d 1021, 1028 (9th Cir. 2003), is

another exception, but there we were careful to note that the state statute

applied to incest with people under age 18.

9966 ESTRADA-ESPINOZA v. GONZALES

see law covered consensual sexual relationships. Id. at 1207.

We also held that psychological abuse was not necessarily a

component of sexual penetration of a 17-year-old for two rea-

sons. First, because the government failed to provide any evi-

dence showing such harm and “[i]n the absence of evidence,

we refuse to assume the existence of harm.” Id. at 1208 (inter-

nal citation omitted) (citing United States v. Thomas, 159 F.3d

296, 299 (7th Cir. 1998)). Second, because “our prior caselaw

— as well as common sense — suggest that, while consensual

underage sex may be psychologically harmful to a young teen,

it may not be harmful to an older one.” Id. (internal citation

omitted) (emphasis added). We explained that “a teen’s

capacity to understand the nature of sexual relations increases

gradually as he or she grows older. Thus, an almost 18 year

old typically will have a higher level of sophistication about

sex . . . than a younger teen or child.” Id. at 1209.

Although the Tennessee statute differs slightly from

§ 261.5(c) — in that California’s law requires only a three

year age difference, rather than four years, and that Tennessee

criminalizes penetration by any body part, see id. at 1207 n.33

— these slight differences should not make the Lopez-Solis

holding any less applicable to this case. Indeed, we and our

sister circuits have been careful on other occasions to distin-

guish between laws governing the sexual behavior of younger

teenagers from those governing the behavior of 16- and 17-

year-olds. See, e.g., Melton, 344 F.3d at 1028 (recognizing the

trend of treating older teenagers differently but distinguishing

Alaska law because it applies to those under 18 only when

incest or similar familial relationships are involved); Pallares-

Galan, 359 F.3d at 1101; Thomas, 159 F.3d at 299 (7th Cir.

1998); United States v. Kirk, 111 F.3d 390, 395 n.8 (5th Cir.

1997) (“Importantly, the circumstances surrounding sexual

contact between [a 19-year-old and a 16-year-old] are far dif-

ferent from those surrounding sexual contact between a young

child and a much older adult.”).

We extended that line of thought in the context of other

generic offenses as well. Prior to Afridi, we interpreted

ESTRADA-ESPINOZA v. GONZALES 9967

§ 261.5(c) in determining whether the California statute was

categorically a “crime of violence” and thus an aggravated

felony under 8 U.S.C. § 1101(a)(43)(F). Valencia, 439 F.3d

1046. As Valencia explained, a crime of violence could be

any offense “ ‘that, by its nature, involves a substantial risk

that physical force against the person or property of another

may be used in the course of committing the offense.’ ” Id. at

1049 (quoting 18 U.S.C. § 16). We recognized that other cir-

cuits had held that “the non-consent of the victim is the touch-

stone for determining whether a conviction constitutes a crime

of violence under § 16(b)” because “a touching without the

victim’s consent presents a substantial risk that force may be

used.” Id. at 1050 (internal quotation marks omitted). How-

ever, “[n]one of our sister circuits has considered whether

consensual sexual intercourse with a minor between the ages

of seventeen and eighteen” — the full range of conduct

involved here — “is a crime of violence under § 16(b).” Id.

As a result, because “California sets the age of majority at

eighteen, Cal. Penal Code § 261.5(a), this case requires us to

break new ground.” Id. (emphasis added). Thus, we acknowl-

edged a significant difference between sexual relations with

someone under 16 and sexual relations with someone between

the ages of 16 and 18.

Moreover, we found that “the assumption that a minor’s

legal incapacity implies that the proscribed sexual intercourse

is non-consensual . . . may be valid where the minor is a

younger child [but] does not hold true where the victim is an

older adolescent, who is able to engage in sexual intercourse

voluntarily, despite being legally incapable of consent.” Id. at

1051. We then examined a number of California cases clarify-

ing that § 261.5(c) criminalizes completely voluntary conduct

by two consenting parties. Id. at 1051-52. After taking all of

this into consideration, we held that because § 261.5(c) “in-

cludes consensual sexual intercourse between a twenty-one-

year-old and a minor one day shy of eighteen,” and because

“a minor of this age is ‘fully capable of freely and voluntarily

consenting’ ” there is no substantial risk that physical force

9968 ESTRADA-ESPINOZA v. GONZALES

will be used in committing the offense. Id. at 1052-53. See

also Thomas, 159 F.3d at 299-300 (7th Cir. 1998) (holding

that statutory rape between a 22-year-old male and a 17-year-

old female is not a “violent felony”).

In Valencia we did acknowledge, however, that although

the use of force is not necessary to accomplish violations of

§ 261.5(c), the “risk of physical injury” may be involved. We

distinguished the case of United States v. Asberry, which held

that statutory rape of a victim under age 16 is categorically a

crime of violence under the Sentencing Guidelines. 394 F.3d

712, 717-18 (9th Cir. 2006). The Guidelines define “crime of

violence” differently from the definition in the INA, because

while the INA defines “crime of violence” based on the “risk

that physical force may be used to commit the crime,” the

Guidelines define it based on “the physical injuries that might

result.” Valencia, 439 F.3d at 1053. This distinction is of no

relevance in the context of “sexual abuse of a minor,” how-

ever, because both the use of physical force and a resulting

physical injury would fall under the common understanding

of physical abuse or maltreatment. As a result, Asberry

deserves a closer look.

In Asberry, we held that “[s]exual intercourse with adults

poses serious potential risks of physical injury to adolescents

of ages fifteen and younger.” 394 F.3d at 717 (emphasis

added). We reasoned that “[b]oth sexually transmitted dis-

eases and the physical risks of pregnancy among adolescent

females are ‘injuries’ as the term is defined in common and

legal usage.” Id. As Valencia acknowledged, the risks of preg-

nancy and disease are possible even where the sex is entirely

consensual. Valencia, 439 F.3d at 1053. Asberry’s holding, as

well as its concerns, are distinguishable from the present case,

however. The statute at issue in Asberry criminalized sex with

a person 15 or under, and our holding explicitly limited its

finding of physical injury to girls in that age group. See

Asberry, 394 F.3d at 717. As we noted in Lopez-Solis, “the

age of the victim is material. The age affects whether the con-

ESTRADA-ESPINOZA v. GONZALES 9969

duct . . . constitutes ‘abuse.’ ” 447 F.3d at 1206. There is an

enormous difference between a 15-year-old’s knowledge of

sex and pregnancy and that of a 17-year-old about to turn 18.

Moreover, Judge Posner writing for the Seventh Circuit has

found that although “a 13 year old is unlikely to appreciate

fully or be able to cope effectively with the disease risks and

fertility risks of intercourse and [is likely to have] a high risk

pregnancy . . . ,” the government was unable to provide “any

studies or reasons that would support a conclusion that sex

between a 16 year old girl (perhaps, we said, a day short of

17) and a 22 year old man poses a potential risk of physical

injury to the girl.” Thomas, 159 F.3d at 299. See also Lopez-

Solis, 447 F.3d at 1208 (refusing to assume psychological

harm where the government failed to provide any evidence of

it). The Seventh Circuit acknowledged that “there is evidence

that a 16 year old girl is at greater risk of physical injury, in

the event that she becomes pregnant, than if she were older

. . . ,” as well as at greater risk of disease, but concluded that

“the risk of sex to 13 year old girls is much greater than the

risk to 16 year olds.” Thomas, 159 F.3d at 299, 300. The Sev-

enth Circuit based its reasoning in part on the fact that 45

states permit marriage at age 16 and that “[m]ore than 40 per-

cent of the 16 year old girls in our society have had sexual

intercourse.” Id. at 299. Certainly the same arguments apply

with greater force to § 261.5(c), which criminalizes sex with

a male or female of age 17 as well. In line with the Seventh

Circuit’s analysis and our understanding of age differences as

expressed in Lopez-Solis, Asberry is readily distinguishable

because while pregnancy and disease pose serious risks of

physical injury to people 15 and under, they do not necessar-

ily pose that same risk to the far more sophisticated group of

17-year-old young women and men. The government has

presented no evidence to the contrary.

To summarize, Valencia establishes that § 261.5(c) does

not categorically involve the use or threat of physical force,

and physical injury is not a necessary result of conduct that

9970 ESTRADA-ESPINOZA v. GONZALES

violates § 261.5(c). Because physical abuse or maltreatment is

not a necessary element of the crime, the only way § 261.5(c)

could qualify as “sexual abuse of a minor” is if it necessarily

involves psychological abuse or maltreatment. We have

already held that other statutory rape laws involving 16- or

17-year-olds may be entirely free of psychological or physical

abuse. See, e.g., Lopez-Solis, 447 F.3d at 1207-09. For these

reasons, I believe that we should reconsider Afridi and hold

that § 261.5(c) is not categorically a crime of “sexual abuse

of a minor.”

This holding would be reinforced by the statutory rape laws

of the vast majority of states. Forty-five states permit mar-

riage at age 16 if the parents consent, and the majority of

states set the age of sexual consent at age 16 as well. See

Thomas, 159 F.3d at 299. California is joined by only about

six other states in criminalizing sexual intercourse between a

21-year-old and someone about to turn 18. See “Statutory

Rape Laws by State,” Connecticut Office of Legislative

Research, April 14, 2003, at www.cga.ct.gov/2003/olrdata/

jud/rpt/2003-R-0376.htm; “Statutory Rape: A Guide to State

Laws and Reporting Requirements,” The Lewin Group, pre-

pared for the Department of Health and Human Services, Dec.

15, 2004, at www.lewin.com/Lewin_Publications/Human_

Services/StateLawsReport.htm. Thirty-five states permit sex-

ual intercourse between a 22-year-old and someone who just

turned 16, almost two years younger than California would

permit. “Statutory Rape Laws by State”; “Statutory Rape: A

Guide to State Laws.” In addition, another seven states permit

consensual sex between someone who just turned 21 and

someone who is close to turning 17, which § 261.5(c) would

not allow. “Statutory Rape Laws by State”; “Statutory Rape:

A Guide to State Laws.” The fact that the vast majority of

states do not forbid consensual sexual intercourse with a 17-

year-old male or female indicates that such conduct is not

necessarily abusive5 under the ordinary, contemporary, and

common meaning of “abuse.”

5

It should also be noted that the California courts charged with inter-

preting California’s statutory rape laws have recognized that “a minor over

ESTRADA-ESPINOZA v. GONZALES 9971

II

The misapplication of Afridi becomes apparent when we

examine the facts of this case. There is no suggestion of abuse

in any form. The couple had a relationship, approved by both

parents, and lived together in the home of the petitioner’s par-

ents. They had a child together and ultimately moved into a

separate residence. If they had solemnized their relationship

by marriage, no prosecution would have been possible.

Because they did not, Estrada-Espinoza is now considered a

removable aggravated felon under Afridi. However, it is diffi-

cult for me to discern how these circumstances qualify as

“sexual abuse of a minor” as we would consider those terms

in a common sense manner.

Thus, I suggest that Afridi’s construction of the statute

should be reconsidered. We should adopt a construction of

“sexual abuse of a minor” consistent with Congressional

intent that would require “abuse” to form part of the generic

definition. That construction would assure that those who

abuse children are dealt with severely, but would allow practi-

cal consideration of extenuating circumstances on a case-by-

case basis when dealing with consensual intercourse between

those in their late teens and early twenties.

the age of 14 who voluntarily engages in sexual intercourse is not neces-

sarily a victim of sexual abuse.” In re Kyle F., 112 Cal. App. 4th 538, 543

(Cal. Ct. App. 2004) (citing County of San Luis Obispo v. Nathaniel J., 50

Cal. App. 4th 842, 845 (Cal. Ct. App. 1996)).