Friday, September 02, 2016

Rangel-Perez v. Lynch, 816 F.3d 591 (3/1/16) (Published) - In conflict with a couple of other circuits, the 10th holds that the "aggravated felony" of "sexual abuse of a minor" requires the mens rea of at least "knowingly." The 10th rejects reliance on the definition of "sexual abuse" in 18 U.S.C. § 3509(a)(8) and instead relies on the mens rea in the substantive sexual abuse provisions like § 2241(c) and § 2243. It stresses that there are serious immigration consequences to labeling an alien an aggravated felon. It doesn't mention the § 2L1.2 offense level bump, but we know that's an important consequence too. There's also a bit of good stuff about the categorical approach, that is, as we know, what counts is the least serious of the acts that could constitute the violation of a particular statute. In this case Mr. Rangel-Perez was found guilty of violating a Utah statute that makes it a misdemeanor to engage in a sexual act with a 14 or 15 year-old where the offender is more than 4 years older. [This was the result of Mr. Rangel-Perez having sex with his long-time girlfriend who became the mother of his child, the 10th points out]. The 10th finds that offense to be a strict liability offense under Utah law as to more than just the age of the victim. It therefore is not "sexual abuse of a minor" and so not an aggravated felony.