State Misdemeanant, Federal Felon

Adolescent Sexual Offenders and the INA

In 1988, Congress amended the Immigration and Nationality Act (“INA”) to state that any alien who commits an “aggravated felony” is subject to deportation. In 1996, the definition of “aggravated felony” was revised to include “sexual abuse of a minor.” Perhaps uncontroversial at first blush, Congress’ “sexual abuse of a minor” terminology unfortunately encompasses state convictions that may contain both sex and minors, but not necessarily “abuse.” Statutory rape provides a prime example of this class of convictions. Recognizing this potential lack of abuse, most states have enacted Romeo and Juliet exceptions to their statutory rape laws, 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. For immigration purposes, however, it would take the Board of Immigration Appeals (“BIA”) almost twenty years to join these states in recognizing statutory rape as not inherently “abusive.” In its 2015 reinterpretation, the BIA concluded a “meaningful age differential” was required before a statutory rape conviction categorically qualified as an “aggravated felony” under the INA.

This Article is the first to explore the legal historical developments behind and impact of the BIA’s 2015 ruling. In sum, the Board of Immigration Appeals’ most recent interpretation is unreasonable—despite being a step in the right direction—and therefore not entitled 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 also with principles of statutory construction and also the rule of lenity.

The full text of this Article is available to download as a PDF.