< Back to Main News page

Engaging in sexual intercourse with a minor under the age of 16 where the perpetrator is 21 years of age or older, in violation of Cal. Penal Code §261.5(d), is not categorically a crime involving moral turpitude. Petitioner, a lawful permanent resident over the age of 21, pleaded no lo contendere in 1998 to three offenses enumerated under Cal. Penal Code §261.5, most notably, for engaging in sexual intercourse with a minor under the age of 16 in violation of §261.5(d). Petitioner was placed in removal proceedings following a brief trip to out side of United States and was charged with inadmissibility under INA §212(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude. The immigration judge found that Petitioner's convictions under §261.5 were categorically crimes involving moral turpitude and denied Petitioner's request for a waiver under INA §212(h) on the ground that his conviction under §261.5(d) was also an aggravated felony. The BIA summarily affirmed.

On review, Petitioner argued that the BIA erred in holding that a violation of Cal. Penal Code §261.5(d) is categorically a crime involving moral turpitude. See Taylor v. United States, 495 U.S. 575 (1990). The court has determined that a crime involving moral turpitude is one that is (1) vile, base or depraved; and (2) violates societal moral standards. Navarro-Lopez v. Gonzales, ___ F.3d___ (9th Cir. 2007). The crime must also have been done "willfully" or with "evil intent." Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006). The court also noted that where an act is statutorily prohibited, but not inherently wrong, the act generally will not involve moral turpitude. Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000). Under Cal. Penal Code §261.5(d), any person who is over the age of 21 who engages in unlawful sexual intercourse with a minor under the age of 16 is guilty of either a misdemeanor or a felony.

The court explained that among the range of conduct prohibited by §261.5(d) would be consensual intercourse between a 21-year-old college sophomore and a high school junior who is 15 years and 11 months old, behavior which may be "unwise and socially unacceptable to many, but is not 'inherently base, vile or depraved,' Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996), or accompanied by a 'vicious motive or corrupt mind.'" Michel v. INS, 206 F.3d 253 (2d Cir. 2000). Moreover, Cal. Penal Code §261.5(d) criminalizes some conduct that is malum prohibitum (statutorily prohibited) as opposed to malum in se (inherently wrong) because sexual intercourse is not "unlawful" for purposes of the statute if the adult and minor were married. Similarly, some conduct under §261.5(d) is legal in other states. See Ark. Code Ann. §5-14-125(a)(3) and S.C. Code Ann. §16-3-655, criminalizing intercourse with minors who are fourteen or under. Finally, in passing the law, the court noted, California was not attempting to proscribe amoral conduct, but was rather attempting to reduce teenage pregnancies. The court concluded that Cal. Penal Code §261.5(d) criminalizes conduct that is broader than that contemplated by INA §212(a)(2)(A)(i)(I) and is therefore, not categorically a crime involving moral turpitude. The petition for review was granted.

Judge Kleinfeld dissented, noting that the court had previously held that the crime of having carnal knowledge of a 15 year old child "manifestly involves moral turpitude," Bendel v. Nagle, 17 F.2d 719 (9th Cir. 1927), and that the court has stated in dicta that statutory rape is a crime of moral turpitude. Gonzalez-Alvarado v. INS, 39 F.3d 245 (9th Cir. 1994). The court has also found that similar conduct constitutes "sexual abuse of a minor" which is an aggravated felony under INA §101(a)(43), United States v. Lopez-Solis, 447 F.3d 1201 (9th Cir. 2006), and that a conviction under §261.5(d) is a "crime of violence." United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007).