Saturday, October 25, 2008

Case o' The Week: Ninth Uses Federal Statute for Federal Definition - and Government Objects, Estrada-Espinoza

Judge Sidney Thomas (left) authors a characteristically thoughtful opinion in an important en banc decision on the jurisprudential goo of the categorical / modified categorical sentencing analysis: United States v. Estrada-Espinoza v. Mukasey, __ F.3d __, 2008 WL 4615681 (9th Cir. Oct. 20, 2008), decision available here. In Estrada-Espinoza, a unanimous en banc Court holds that four different California statutory rape offenses are not aggravated felonies under 8 USC § 1001(a)(43)(A). This will be a lead decision for immigration practice and for illegal reentry cases. It is also, however, a particularly notable opinion for its approach on how to divine the "generic" federal definition of an offense.

Players: Decision by Judge Sidney R. Thomas – no dissents.

Facts: Estrada-Espinoza, 20 years old, courted Sonia, who was 15 or 16. Id. at *1. With both parents’ blessings, the pair eventually moved-in together. Id. He worked to support the couple and, eventually, the child they raised together. Id.

Three years later, he was convicted of several California statutory rape offenses. Id. The Department of Homeland Services tried to remove him; Estrada-Espinoza lost his challenges before the I.J. and the B.I.A. on the theory that the stat rape convictions were “aggravated felonies” under 8 USC § 1101(a)(43)(A). Id. at *1-*2. A three-judge Ninth panel denied review, and the case went en banc. Id. at *2.

Issue(s): “[W]e consider whether a conviction under any of four California statutory rape provisions – California Penal Code §§ 261.5(c), 286(b)(1), 288a(b)(1), or 289(h) – constitutes the aggravated felony ‘sexual abuse of a minor’ within the meaning of 8 USC § 1101(a)(43).” Id. at *1.

Held: “We conclude that each statute defines conduct that is categorically broader than the generic definition of ‘sexual abuse of a minor’ and grant the petition for review.” Id.

Of Note: While an important result, the Court’s ultimate holding that these California statutes do not meet the generic definition of “sexual abuse of a minor” is really a foregone conclusion, and takes a small corner of the opinion. Id. at *8. The case was really decided earlier in the opinion, with the far more interesting question of how the Court determines the “generic definition” to be used.

Recall that courts using the Taylor categorical approach typically look to federal common law to glean the “generic definition” of an offense. In Estrada-Espinoza, however, Congress “fortunately” defined the term at issue – “sexual abuse of a minor” – in another federal statute. Id. at *2-*3.

There’s nothing remarkable about turning to a federal statute for a definition, right? Right, except the statute used here is 18 USC § 2243 – the federal “sex abuse of a minor” offense. That’s a distinct federal crime; a crime that has nothing to do with the immigration statute at issue here, 8 USC § 1101(a)(43). This is precisely what the government hollered, when the Court adopted the elements of the § 2243 as the “generic” definition of “sexual abuse of a minor.” Id. at *5. As the government correctly observed, Section 1101(a)(43) turns to federal statutes for some definitions, and doesn’t for others (like "sex abuse of a minor"). Because “sex abuse of a minor” isn’t defined by cross-reference to another statute in § 1101(a)(43), the government claimed, the Court couldn’t troll the federal code fishing for a statutory definition of the “generic” crime. Id. at *6.

Au contraire, explains Judge Thomas – and hence the new rule. Section 1101(a)(43) has two categories of agg felony crimes. Id. The first category of agg felonies refer to a broad range of offenses. This category of agg felonies refers to other federal statutes for clarification.

The second category refers to specific crimes, already defined in criminal law. These have no need for enumerated cross-references. Id. Because “statutory rape” is in the second, “specific crime” category of aggravated felonies, there’s no bar to using other federal statutes for a definition. Id.

How to Use: This new approach bears some thought. Here, the “two category” approach to § 1101(a)(43) was critical, because the fed’s statutory definition of “sexual abuse of a minor” is narrower than the Cal Penal Code provisions. Does this approach impact other crimes labeled as agg felonies? How about “lewd and lascivious” offenses? See Cal. Penal Code § 288(a).

In United States v. Baron-Medina, 187 F.3d 1144, 1145 (9th Cir. 1999), the Ninth held that § 288(a) is an aggravated felony. In Baron-Medina, however, the three-judge panel expressly rejected Chapter 109A (18 U.S.C. §§ 2241-2248) of the federal code as a definition limiting the term, “sexual abuse of a minor.” Id. at 1146. Now, an en banc Ninth Circuit Court has expressly adopted the definition from within Chapter 109A as a generic definition that limits the term, “sex abuse of a minor.” Doesn’t the en banc Estrada-Espinoza opinion overrule the three-judge Baron-Medina decision?

For Further Reading: For a collection of our blogs on the Ninth’s “categorical” law, click on or copy and paste this into your browser:

Picture of Judge Sidney R. Thomas from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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