holding that statute criminalizing unlawful sexual intercourse with minor under 16 did not categorically involve moral turpitude; statute lacked scienter requirement and therefore “lack[ed] the requisite element of willfulness or evil 16 MENENDEZ V. WHITAKER intent”
How later courts described this case
- holding that statute criminalizing unlawful sexual intercourse with minor under 16 did not categorically involve moral turpitude; statute lacked scienter requirement and therefore “lack[ed] the requisite element of willfulness or evil 16 MENENDEZ V. WHITAKER intent”
- concluding that a California statute prohibiting consensual intercourse between an adult 21 or older and a minor under 16 encom- passed conduct that is not “ ‘so far contrary to the moral law’ as to ‘give rise to moral outrage’ ”
- holding that a violation of California Penal Code § 261.5(d), a similar statute to RCW § 9A.44.079, was not necessarily a CIMT
- holding that statutory rape under Cal. Penal Code § 261.5 (d) is not categorically a CIMT
Written by the judges who cited it.
The opinion
KLEINFELD, Circuit Judge,
dissenting:
I respectfully dissent.
Precedent compels me to reach the conclusion that the crime of which Quintero-Salazar was convicted is indeed a crime of moral turpitude. The crime is statutory rape, specifically sexual intercourse by a person over 21 with a person under 16. 1 We have held that “the crime of having carnal knowledge of a ... child of the age of 15 years” “manifestly involves moral turpitude.” 2 We have said, in dicta, that “statutory rape” is a “crime of moral turpitude.” 3
Our court has also “consistently ... held that statutory rape laws prohibiting sexual contact with a minor under 16 proscribe conduct constituting sexual abuse of a minor,” 4 an aggravated felony. 5 We have even said that Quintero-Salazar’s crime is a “crime of violence.” 6 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. I would therefore conclude, as the BIA concluded, that Quintero-Salazar was ineligible for a waiver. 7
The argument of the majority opinion is strong. Under some of the language in our circuit’s recent decision in Fernandez-Ruiz v. Gonzales, there might be a real question as to whether Quintero-Salazar’s crime is one of moral turpitude. 8 But *696 Fernandez-Ruiz was about domestic assault. 9 I do not think that the implications of the language in a domestic assault case can overcome our specific holdings and strong dicta speaking more specifically to Quintero-Salazar’s crime. Our precedent on the crime at issue (as opposed to the implications of language we have written about other crimes) leaves me unable to join the majority.
. Cal.Penal Code § 261.5(d). See also United States v. Gomez-Mendez, 486 F.3d 599, 601 (9th Cir.2007) (concluding that the "full range of conduct proscribed by Cal.Penal Code § 261.5(d)” meets the definition of "statutory rape”).
. Bendel v. Nagle, 17 F.2d 719, 720 (9th Cir.1927); see also Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir.1995) ("[W]e have found that ... having carnal knowledge of a 15 year old female ... involve[s] moral turpitude.”).
. Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994). ("Typically, crimes of moral turpitude involve fraud. However, we have included in this category acts ... such as ... statutory rape, which involve moral turpitude by their very nature.”) (internal quotation marks omitted).
. United States v. Lopez-Solis, 447 F.3d 1201, 1205-06 (9th Cir.2006).
. See 8 U.S.C. § 1101 (43) ("The term 'aggravated felony' means ... murder, rape, or sexual abuse of a minor.... ”).
. United States v. Gomez-Mendez, 486 F.3d 599, 602 (9th Cir.2007).
. See 8 U.S.C. § 1182 (h)(1)(B) ("No waiver shall be granted ... in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... since the date of such admission the alien has been convicted of an aggravated felony ....”).
. See Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir.2006) ("[WJhile spousal abuse may be a “base or depraved act,” that factor alone is not sufficient for a crime to constitute moral turpitude: the act must also be done willfully.... Indeed, this circuit's precedent generally requires 'willfulness' or 'evil intent’ in order for a crime to be classified as one involving moral turpitude .... Other circuits similarly emphasize that willfulness is critical to a moral turpitude determination. See generally Michel v. INS, 206 F.3d 253, 263 (2d Cir.2000) ('[Cjorrupt scienter is the touchstone of moral turpitude.').”).
. Id. at 1161.