We consider here whether Arizona Revised Statutes § 13-1405, which criminalizes sexual conduct with a minor under eighteen years of age, constitutes an aggravated felony for the purpоses of immigration law. Because § 13-1405 does not meet the federal generic offense of “sexual abuse of a minor,” we hold that it is not an aggravated felony and grant the pеtition for review.
Jose Ignacio Rivera-Cuartas, a longtime lawful permanent resident from Colombia, was convicted under § 13-1405 for performing oral sex on a sixteen-year-old boy and sentenced to three years probation. In removal proceedings, the immigrаtion judge (“U”) found Rivera deportable for having been convicted of the aggravated felony of “sexual abuse of a minor” as defined at 8 U.S.C. § 1101(a)(43)(A). The Board of Immigration Appeals (“BIA”) affirmed.
This case is squarely controlled by two recent decisions that address the gеneric definition of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A):
Estrada-Espinoza v. Mukasey,
In
Estradar-Espinoza,
we explained that, for the purposes оf § 1101(a)(43)(A), “Congress has enumerated the elements of the offense of ‘sexual abuse of а minor’ at 18 U.S.C. § 2243.”
In
Medina-Villa,
we distinguished Estr
adar-Espinoza
on the ground that 18 U.S.C. § 2243 “encompassed statutory rape crimes only” and therefore was not the only federаl generic definition of “sexual abuse of a minor.”
The statute, § 13-1405, does not meet the generic definition of “sexual abuse of a minor” under either framework. Section 13-1405 provides that “[a] person commits sexual conduсt with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” Ariz. Rev. Stat. § 13-1405(A). On its face, § 13-1405 does not meet the definition for statutory rape crimes set forth in
Estradar-E spinoza
for two reasons: (1) it lacks the age difference requirement; and (2) is broader than the generic offense with respect to the age of the minor because the statute applies to persons under eighteеn years of age. As a result, the conduct proscribed in § 13-1405 exceeds the generic offense.
See Estrada-Espinoza,
In addition, because § 13-1405 lacks the age difference requirement, the modified categorical approach does not apply. As we explained in
Navarro-Lopez v. Gonzales,
“[w]hen the crime of conviction is missing an element of the generic crime altogether,” the mоdified categorical approach is inapposite because the сourt “can never find that ‘a jury was actually required to find all the elements of the generiс crime.”
Section 13-1405 also does not meet the generic definition of “sexual abuse оf a minor” under the
Medinar-Villa
framework as it lacks the element of “abuse.” The statute “does not еxpressly include physical or psychological abuse of a minor as an elemеnt of the crime,” nor does it “criminalize[ ] only conduct that is per se abusive, because it is not limited to conduct targeting younger children.”
Pelayo-Garcia,
In his opening brief, Rivera “concedes” that his offense constitutes a crime involving moral turpitude and argues that his crime is subject to the petty offense exception at 8 U.S.C. § 1182(a)(2)(A)(ii)(II). But the gоvernment solely charged Rivera with removability as an aggravated felon, and the IJ and BIA ordered removal on this basis alone. The government did not charge removal on the moral turpitude charge or any other ground of removability. Therefore, we vacate Rivera’s removal order without remanding for further administrative proceedings.
The petition for review is GRANTED.