Immigration's Problem Child: Structural Problems Inherent in Removal of 'Sexual Abuse of a Minor' Offenders
58 Pages Posted: 20 Feb 2018
Date Written: February 4, 2018
On May 30, 2017, the Supreme Court decided Esquivel-Quintana v. Sessions, a case that has potentially far-reaching consequences for the United States’ ability to remove criminal aliens, namely, sex offenders. The Immigration and Nationality Act (“INA”), while providing for the removal of those with “aggravated felony” convictions, did not cross-reference “sexual abuse of a minor” to any federal equivalent statute, unlike the majority of the other 80 enumerated “aggravated felonies.” Most Americans would likely consider child molesters and rapists to be the highest priority category of aliens for removal. However, these types of criminal aliens are among some of the most difficult to remove. The Court’s recent discussion in Esquivel-Quintana could further frustrate that mission, given the use of 18 U.S.C. § 2243 as the appropriate federal equivalent to the state conviction. The Court also looked to a canvass of state practice regarding age of consent laws. Now, there is significant potential for criminal aliens to exploit the logic of Esquivel-Quintana across a broader spectrum of “sexual abuse of a minor” crimes to avoid removal.
The author has conducted an original 50-state survey of “sexual contact” definitions, and found that only 4 states have definitions even remotely resembling the federal equivalent – rendering the vast majority of convictions for sexual contact with minors virtually non-removable. In response, this article suggests statutory language that represents a convergence of the majority of state statutory definitions, and also explores other potential ways to redress this glaring structural flaw in the INA.
Keywords: child sex abuse, sex offenders, Esquivel-Quintana, sexual abuse of a minor, sexual contact, 50-state survey, removal, criminal alien, categorical approach,
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