On October 14, 2015, I will be in Cincinnati, Ohio to present an argument in a case before the U.S. Court of Appeals for the Sixth Circuit. The case involves issues related to a criminal conviction, and whether the conviction is an “aggravated felony” under the Immigration and Nationality Act. My client in this case was a Permanent Resident of the United States since he was a young teenager. While living in California, he and his girlfriend had sex. My client ended up being convicted of having had sex with his girlfriend when she was younger than 18 years old, at which time he was more than 3 years older than she was. My client and his girlfriend engaged in sex that was purely consensual. There was no force, and no threat of force, involved. My client was convicted under a statute in California that requires simply that the younger person be younger than age 18, that the other person be more than 3 years older, and that they had sex. This is a statute that is sometimes referred to as “statutory rape,” although there was no “rape” involved at all.
In California, the age of consent for purposes of “statutory rape” is 18 years old. Only about 11 states set the age of consent at age 18. California joins Florida, Virginia, and 8 other states at setting the age of consent at 18. Some of these states additionally require that, in order to be convicted, the older person is at least a certain age, and/or that the age difference be at least a certain number of years. For example, Florida requires that the older person be at least age 24. If not, the person would not be convicted of the offense.
As for the other 40 states and the District of Columbia, the age of consent for the younger person is either 16 or 17.
As a result, my client’s conduct would not even be a crime in at least 43 states and the District of Columbia. Yet a U.S. immigration judge, and the Board of Immigration Appeals, ruled that his conviction is an aggravated felony for purposes of immigration law. My client has been removed from the United States.
At the U.S. Court of Apeals for the Sixth Circuit, I am arguing that my client’s conduct is not an aggravated felony.