Valencia v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR B. VALENCIA,  No. 03-72028
Petitioner,
Agency No.
v.
 A70-972-808
ALBERTO R. GONZALES, Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 9, 2004—San Francisco, California
Filed March 6, 2006
Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
2171
2174 VALENCIA v. GONZALES
COUNSEL
James Todd Bennett, El Cerrito, California, for the petitioner.
Peter D. Kiesler, Donald E. Keener, Greg D. Mack, Office of
Immigration Litigation, Washington D.C., for the respondent.
ORDER
The opinion filed on December 12, 2005, and reported at
431 F.3d 673, is hereby withdrawn and replaced by the opin-
ion filed concurrently with this order. Further petitions for
rehearing and for rehearing en banc will be accepted, and the
time for filing petitions for rehearing shall run anew com-
mencing on the filed date of the substituted opinion. See Fed.
R. App. P. 40(a)(1) and 35(c).
OPINION
BEA, Circuit Judge:
Victor Valencia, a native and citizen of Peru, petitions for
review from the Board of Immigration Appeals’ (“BIA”)
VALENCIA v. GONZALES 2175
order summarily affirming the Immigration Judge’s (“IJ”)
order of removal. Valencia was convicted of felony1 unlawful
sexual intercourse with a person under eighteen, who was
more than three years younger than he, in violation of Califor-
nia Penal Code section 261.5(c). The IJ found Valencia
removable for having committed an aggravated felony under
8 U.S.C. § 1227(a)(2)(A)(iii), holding the crime constituted a
crime of violence under 8 U.S.C. § 1101(a)(43)(F), which
defines a crime of violence pursuant to 18 U.S.C. § 16. Our
jurisdiction is controlled by 8 U.S.C. § 1252. We grant the
petition for review and hold that a violation of California
Penal Code section 261.5(c) does not constitute a crime of
violence under 18 U.S.C. § 16.
I
On May 29, 1997, Valencia pleaded guilty to a felony vio-
lation of California Penal Code section 261.5(c). The imposi-
tion of his sentence was suspended for a period of five years,
during which time he was placed on probation on the condi-
tion that he serve one year in the county jail. At the change
of plea hearing, the judge specifically advised, and Valencia
acknowledged, that this conviction could be used to deport
him.
Valencia was charged in the notice to appear with being
removable as an aggravated felon for committing sexual
abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), and for
committing a crime of violence under 8 U.S.C.
§ 1101(a)(43)(F).
II
The IJ found Valencia removable as an aggravated felon
under 8 U.S.C. § 1227(a)(2)(A)(iii), holding the crime consti-
1
A violation of California Penal Code section 261.5(c) can be charged
as either a misdemeanor or a felony. Here, it was charged as a felony.
2176 VALENCIA v. GONZALES
tuted a crime of violence under 8 U.S.C. § 1101(a)(43)(F), as
defined in 18 U.S.C. § 16.
The IJ dismissed the charge that Valencia was removable
for having committed sexual abuse of a minor under 8 U.S.C.
§ 1101(a)(43)(A). The government does not cross-appeal this
dismissal.
The BIA summarily affirmed the IJ’s ruling.
III
We do not have jurisdiction to review the propriety of any
final order of removal against an alien who is ordered
removed for having committed an aggravated felony covered
in 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1252(a)(2)(c);
Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000);
Aragon-Ayon v. INS, 206 F.3d 847, 849-50 (9th Cir. 2000).
We do, however, have jurisdiction to consider the limited
question of whether a crime is an aggravated felony. Cedano-
Viera v. Ashcroft, 324 F.3d 1062, 1065 (9th Cir. 2003). For
the reasons discussed below, we hold that Valencia’s crime
was not an aggravated felony.
IV
Under the “categorical approach” laid out in Taylor v.
United States, 495 U.S. 575 (1990), a violation of section
261.5(c) qualifies as a crime of violence and hence as an
aggravated felony “if and only if the full range of conduct
covered by it falls within the meaning of that term.” United
States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999)
(citation omitted).
[1] Under 8 U.S.C. § 1227(a)(2)(A)(iii) “an alien who is
convicted of an aggravated felony at any time is deportable.”
8 U.S.C. § 1101(a)(43)(F) defines an aggravated felony as “a
crime of violence (as defined in section 16 of Title 18, but not
VALENCIA v. GONZALES 2177
including a purely political offense) for which the term of
imprisonment [is] at least one year.”
[2] Section 16 of Title 18 in turn defines a crime of vio-
lence as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or (b) any
other offense that is a felony and that, by its nature,
involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.
18 U.S.C. § 16 (emphasis added). The “physical force” neces-
sary to constitute a crime of violence under 18 U.S.C. § 16(b)
must be violent in nature. Ye v. INS, 214 F.3d 1128, 1133 (9th
Cir. 2000).
[3] The statute to which Valencia pleaded guilty provided:
Any person who engages in an act of unlawful sex-
ual intercourse with a minor who is more than three
years younger than the perpetrator is guilty of either
a misdemeanor or a felony, and shall be punished by
imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison.
Cal. Penal Code § 261.5(c) (1997).
[4] Section 261.5(c) does not have “as an element the use,
attempted use, or threatened use of [violent] physical force
against the person or property of another.” 18 U.S.C. § 16(a).
Therefore, under the Taylor categorical approach, we consider
whether the “full range of conduct” covered by section
261.5(c), see Baron-Medina, 187 F.3d at 1146, “by its nature,
involves a substantial risk that physical force against the per-
2178 VALENCIA v. GONZALES
son or property of another may be used in the course of com-
mitting the offense.” 18 U.S.C. § 16(b).
[5] This circuit has not considered whether statutory rape
“by its nature, involves a substantial risk that physical force
may be used against the person or property of another in the
course of committing the offense.” 18 U.S.C. § 16(b). In Lis-
bey v. Gonzales, 420 F.3d 930, 933 (9th Cir. 2005), we held
the crime of sexual battery involves a substantial risk of the
use of physical force. The sexual battery statute at issue in
Lisbey criminalized the sexual touching of another who is
“unlawfully restrained by the accused or an accomplice”
when the touching is against the victim’s will. See id. at 932;
Cal. Pen. Code § 243.4(a) (West 2005) (defining the crime of
sexual battery). Even though the use of force is not an element
of sexual battery under California law, see id.; United States
v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir. 2005), sexual
battery nonetheless requires unlawful restraint and an act
against the victim’s will. Lisbey, 420 F.3d at 932-33. Because
sexual battery involves both unlawful restraint and an act
against the victim’s will, “[it] creat[es] a substantial risk of
resistance by the victim and the use of physical force by the
perpetrator.” Id. at 932 (citing the BIA’s decision). Accord-
ingly, we held that sexual battery is categorically a crime of
violence under § 16(b).
[6] In Lisbey, we noted approvingly cases from other cir-
cuits which establish that sexual acts, without the victim’s
consent, constitute crimes of violence under § 16(b). See id.
at 933 (citing approvingly Zaidi v. Ashcroft, 374 F.3d 357,
361 (5th Cir. 2004) (per curiam) (lewd or lascivious touching
of an adult without his or her consent); Sutherland v. Reno,
228 F.3d 171, 176 (2d Cir. 2000) (indecent assault and battery
on a person over the age of fourteen which requires the vic-
tim’s actual non-consent as an element); United States v.
Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993) (holding that
attempted sexual abuse of a child under the age of fourteen is
a crime of violence)). These cases, taken together, establish
VALENCIA v. GONZALES 2179
that the “non-consent of the victim” is the “touchstone” for
determining whether a conviction constitutes a crime of vio-
lence under § 16(b). See Lisbey, 420 F.3d at 933. The ratio-
nale behind this rule is that a touching without the victim’s
consent “presents a substantial risk that force may be used to
overcome the victim’s lack of consent and accomplish the
indecent touching.” See Sutherland, 228 F.3d at 176.
None of our sister circuits has considered whether consen-
sual sexual intercourse with a minor between the ages of sev-
enteen and eighteen is a crime of violence under § 16(b). The
Fifth Circuit has held that the crime of “indecent sexual con-
tact” with a minor younger than seventeen is categorically a
crime of violence under § 16(b). See United States v.
Velazquez-Overa, 100 F.3d 418, 422-23 (5th Cir. 1996). Like-
wise, the Second and Eleventh Circuits have held felonies
involving sexual contact with victims who are younger than
sixteen, or otherwise incapacitated, are crimes of violence
under § 16(b). See Chery v. Ashcroft, 347 F.3d 404, 408-09
(2d Cir. 2003); Ramsey v. INS, 55 F.3d 580, 583 (11th Cir.
1995) (per curiam). The Eighth and Tenth Circuits have held
that felonies involving sexual abuse of children younger than
fourteen are crimes of violence under § 16(b). See United
States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999) (per
curiam); Reyes-Castro, 13 F.3d at 379.
The Seventh Circuit, by contrast, has held that statutory
rape of a fifteen-year-old is not categorically a crime of vio-
lence under § 16(b), and employed modified categorical anal-
ysis to consider the age of the victim, the age difference
between the victim and perpetrator, and the nature of sexual
activity. See Xiong v. INS, 173 F.3d 601, 607 (7th Cir. 1999);
see also United States v. Shannon, 110 F.3d 382, 385 (7th Cir.
1997) (en banc) (rejecting the argument, in a case involving
U.S.S.G. § 4B1.2 that “any felonious sexual act with a minor
should be deemed [ ] to involve force, because the minor is
incapable of giving legally recognized consent”).
2180 VALENCIA v. GONZALES
None of these cases involve sexual intercourse with a
minor between the ages of seventeen and eighteen. Only the
Fifth Circuit has considered statutory rape in a state which
sets the age of majority at seventeen. See Velazquez-Overa,
100 F.3d at 422. Since California sets the age of majority at
eighteen, Cal. Pen. Code § 261.5(a), this case requires us to
break new ground.
In addition to this factual difference, we find the reasoning
of the Second and Fifth Circuits somewhat mechanical in
equating a victim’s legal incapacity to consent with an actual
unwillingness to be touched, and deriving therefrom a sub-
stantial risk that physical force may be used in committing the
offense. In Chery, for example, the statute of conviction
criminalized sexual intercourse with a victim under the age of
sixteen by a perpetrator two years older, sexual intercourse
with a victim who is mentally incapacitated or physically
helpless, or a guardian’s sexual intercourse with his or her
minor ward. See id., 347 F.3d at 407. Thus, the conduct crimi-
nalized by the statute included sexual intercourse with a will-
ing minor. The court found that the statute categorically
involved a risk that force may be used to accomplish the sex-
ual intercourse with the victim. Id. at 408 (citing Sutherland,
228 F.3d at 176). Even though the victim might voluntarily
engage in the sexual intercourse, the court found a substantial
risk of force because the victim cannot consent. Chery, 347
F.3d at 408-09.
Underlying this reasoning is the assumption that a minor’s
legal incapacity implies that the proscribed sexual intercourse
is non-consensual. See, e.g., Chery, 347 F.3d at 409 (“[I]t is
obvious that such crimes . . . are generally perpetrated by an
adult upon a victim who is not only smaller, weaker and less
experienced, but is also generally susceptible of acceding to
the coercive power of adult authority figures.”) (quoting
Velazquez-Overa, 100 F.3d at 422) (alteration in original).
But even then, the equation of legal and factual non-consent
mixes considerations of physical disparity (“smaller” or
VALENCIA v. GONZALES 2181
“weaker”)2 with considerations of mental or emotional dispar-
ities (“less experienced,” “authority figures”). While this
assumption may be valid where the minor is a younger child,
see, e.g., Reyes-Castro, 13 F.3d at 379, it does not hold true
where the victim is an older adolescent, who is able to engage
in sexual intercourse voluntarily, despite being legally incapa-
ble of consent. See United States v. Houston, 364 F.3d 243,
247 (5th Cir. 2004) (distinguishing factual and legal consent
for purposes of determining whether statutory rape is a crime
of violence under U.S.S.G. § 4B1.2); United States v. Dick-
son, 346 F.3d 44, 51-52 (2d Cir. 2003) (holding that unlawful
imprisonment of a minor or incompetent adult is not a crime
of violence under § 16(b), because the crime can be accom-
plished with the victim’s acquiescence). Therefore, while we
agree that the “non-consent of the victim” is the “touchstone”
for § 16(b) analysis, it is the victim’s actual non-consent that
counts.
[7] That lack of actual consent, rather than legal incapacity
to consent, is the “touchstone” of § 16(b) analysis is made
more evident by a consideration of California law. In a prose-
cution for forcible rape, Cal. Pen. Code § 261(a)(2), the abil-
ity of a minor to consent is an issue of fact and the
prosecution must show the intercourse was against the
minor’s will. See People v. Young, 190 Cal. App. 3d 248, 257-
58 (1987). Similarly, as the California Supreme Court has
stated, section 261.5(c) “makes no statement about the
[minor’s] ability to consent.” See Michael M. v. Super. Ct., 25
Cal. 3d 608, 614 (1979), aff’d by 450 U.S. 464 (1981). In
Michael M., the California Supreme Court upheld the former
version of section 261.5, which applied only to underage
females, against a challenge under the Equal Protection
Clause. See id.; Cal. Pen. Code § 261.5 (Deering 1970).
2
Of course, a substantial age difference does not ineluctably suggest a
disparity in physical strength giving rise to a risk of the use of physical
force. It may if the minor is 17 and the adult is 25; it may not if the adult
is 52.
2182 VALENCIA v. GONZALES
Applying strict scrutiny, the California Supreme Court held
that section 261.5 furthered a compelling state interest in min-
imizing illegitimate births to teenage mothers. Id. at 612.
Since only females can become pregnant, the gender classifi-
cation was narrowly drawn. See id. at 613; see also id., 450
U.S. at 473-74. Further, the California Supreme Court
rejected the argument that the statute cast doubt on “the
capacity of minor females to make intelligent and volitional
decisions,” stating that “the Legislature necessarily acknowl-
edged the obvious truism that minor females are fully capable
of freely and voluntarily consenting to sexual relations.” Id.,
25 Cal.3d at 614. Characterizing section 261.5 as a form of
morals legislation, the Court noted that it was “no different
than a variety of other statutes which prohibit minors from
engaging in certain activities”—such as purchasing cigarettes
—“no matter how . . . willing or consenting the minor might
be.” Id.
Later California cases also support this reading of section
261.5(c). In People v. Tobias, 25 Cal. 4th 327, 333-34 (2001),
the Court cited the California legislature’s enactment of sec-
tion 261.5(c) as a crime separate from rape as support for the
proposition that “in some cases at least, a minor may be capa-
ble of giving legal consent to sexual relations.” Id. at 333. The
Court specifically noted that the enactment of section 261.5(c)
as a provision separate from rape indicated that section
261.5(c) was “a distinct and less serious crime than rape, par-
ticularly where the minor engages in the sexual act knowingly
and voluntarily.” Id. Accordingly, the Court noted that the
legislature had undermined its rationale for the rule at issue in
that case (that minors cannot be accomplices to the crime of
incest). Id. at 334-36. Thus, the Court there held that minors
cannot be accomplices to the crime of incest, not because they
are categorically incapable of consenting to sexual relations,
but rather because they are victims immune from prosecution
under the statute. Id.
Likewise, a conviction for unlawful sexual intercourse
under section 261.5 does not necessarily bar the perpetrator
VALENCIA v. GONZALES 2183
from asserting his constitutional right as a parent to block the
adoption of the offspring. See In re Kyle F., 5 Cal. Rptr. 3d
190, 194 (2003). There, an eighteen-year-old male committed
unlawful sexual intercourse with a sixteen-year-old woman
who was not his wife, a misdemeanor under California law.
See Cal. Pen. Code § 261.5(b). The Court of Appeal reversed
the trial court’s ruling that unlawful sexual intercourse was
the equivalent of forcible rape, which would bar the father
from asserting parental rights. Kyle F., 5 Cal. Rptr. 3d at 194.
In reaching that conclusion, the court stressed that, unlike
forcible rape, a conviction for unlawful sexual intercourse
does not imply that “the sexual intercourse was voluntary
only for the father.” Id. Rather, “[i]f the mother is a minor, the
act may be deemed unlawful sexual intercourse despite the
mother’s voluntary participation.” Id. Thus, the father had not
committed “nonconsensual sexual intercourse” so as to bar
him from asserting his parental rights. Id.
[8] In sum, the full range of conduct proscribed by Califor-
nia Penal Code section 261.5(c) includes consensual sexual
intercourse between a twenty-one-year-old and a minor one
day shy of eighteen.3 Since a minor of this age is “fully capa-
ble of freely and voluntarily consenting to sexual relations,”
Michael M., 25 Cal. 3d at 614, the minor’s deemed incapacity
does not suggest a risk that force may be used in committing
the offense. Therefore, we hold that a violation of section
261.5(c) does not, “by its nature, involve[ ] a substantial risk
that [violent] physical force against the person or property of
another may be used in the course of committing the offense.”
18 U.S.C § 16(b); Ye, 214 F.3d at 1133. Accordingly, a viola-
tion of 261.5(c) is not categorically a crime of violence under
§ 16(b).
3
In applying the “categorical” approach, we must consider the “full
range of conduct” proscribed by the statute. Baron-Medina, 187 F.3d at
1146. Thus, in evaluating whether a sex offense against a minor is a crime
of violence, we assume that the victim is just shy of the age of majority.
See, e.g., United States v. Pallares-Galan, 359 F.3d 1088, 1101-02 (9th
Cir. 2004).
2184 VALENCIA v. GONZALES
Our recent decision in United States v. Asberry, 394 F.3d
712, 717-18 (9th Cir. 2005) is not to the contrary. There, we
held that a conviction for the statutory rape of a victim under
the age of sixteen is categorically a crime of violence under
§ 4B1.2 of the United States Sentencing Guidelines. Id. at
716-18. Under the provision we were interpreting in Asberry,
a crime of violence is defined as an offense that poses a “seri-
ous potential risk of physical injury to another.” Id. at 717;
U.S.S.G. § 4B1.2(a)(2). In Asberry, we found that conse-
quences of sexual intercourse such as pregnancy and sexually
transmitted disease fall within the meaning of “physical inju-
ry.” Id. at 717-18. As we stated,
Sexual intercourse with adults poses serious poten-
tial risks of physical injury to adolescents of ages fif-
teen and younger. Both sexually transmitted disease
and the physical risks of pregnancy among adoles-
cent females are ‘injuries’ as the term is defined in
common and legal usage.
Id. at 717. Accordingly, we held that statutory rape poses a
serious potential risk of physical injury and, therefore, is a
crime of violence under the § 4B1.2(a) of the Guidelines. Id.
at 718.
Here, by contrast, the statute defines crime of violence by
reference to the risk that physical force may be used to com-
mit the crime, not the physical injuries that might result. The
risk that physical force may be used is one that a minor’s
actual consent removes because, where the minor actually
consents to sexual intercourse, force will not be necessary to
overcome the minor’s resistance.
Actual consent, however, will not remove the potential risk
of physical injury. As we held in Asberry, statutory rape
exposes a minor to “serious potential risks of physical injury”
in the form of pregnancy and sexually transmitted disease. Id.
at 717-18. These risks are present even if the minor know-
VALENCIA v. GONZALES 2185
ingly and voluntarily consents to engage in sexual intercourse.
Indeed, part of the reason for statutory rape laws is that
minors have consensual sex without full regard for these risks,
thereby suffering injury themselves and imposing costs on
society. See Michael M., 25 Cal. 3d at 612, 614-15. Thus, stat-
utory rape poses risks of physical injury, but does not, by its
nature, involve a substantial risk of the use of physical force
to commit the offense.
Furthermore, as we noted in Asberry, the Commentary to
section 2L1.2 of the Guidelines lists statutory rape as per se
a crime of violence. See Asberry, 394 F.3d at 716-17; see also
United States v. Granbois, 376 F.3d 993, 995-96 (9th Cir.
2004); United States v. Pereira-Salmeron, 337 F.3d 1148,
1153 (9th Cir. 2003). As we noted in Asberry, this Commen-
tary “provide[s] guidance” in “constru[ing] the identical term
‘crime of violence’ in section 4B1.2” of the Guidelines. Id.,
394 F.3d at 717. Here, Congress has provided no similar indi-
cations of an intent to make statutory rape an aggravated fel-
ony under the crime of violence definition in 8 U.S.C.
§ 1101(a)(43)(F).4 Absent such an indication, we can only
construe the definition of crime of violence according to its
plain text.
V
[9] Where the statute under which the prior conviction
occurred is not categorically a predicate offense, we apply a
“modified” categorical approach. See United States v. Ruiz-
Morales, 361 F.3d 1219, 1222 (9th Cir. 2004); Ye, 214 F.3d
at 1133. Under this “modified” categorical approach, we
examine “documentation or judicially noticeable facts that
clearly establish that the conviction is [an aggravated felony]
[,] such as the indictment, the judgment of conviction, jury
4
Indeed, an alien may be removed for having committed a non-forcible
sex offense against a minor if it constitutes “sexual abuse of a minor”
under 8 U.S.C. § 1101(a)(43)(A). Here, that charge was dismissed.
2186 VALENCIA v. GONZALES
instructions, a signed guilty plea, or the transcript from the
plea proceedings.” United States v. Hernandez-Hernandez,
431 F.3d 1212, 1217 (9th Cir. 2005) (quoting United States
v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en
banc) (second alteration in original)). Our inquiry here is
whether the documents of conviction or other judicially
noticeable facts suggest that the offense, by its nature,
involves the targeted risk of the use of physical force: for
instance, that the unlawful intercourse was preceded by a
threat or the stalking of the minor.
[10] Here, the documents of Valencia’s conviction establish
only that Valencia was charged with, and pleaded guilty to, a
felony violation of section 261.5(c). Therefore, the documents
in the record do not narrow Valencia’s offense.
[11] The government urges us to take judicial notice of
Valencia’s age (forty-two) at the time he committed the
offense. The government asks us, in essence, to follow the
Seventh Circuit’s approach and hold that statutory rape is a
crime of violence under § 16(b) if it involves a “substantial
age difference” between the perpetrator and the victim. See
Xiong, 173 F.3d at 607. In conducting this inquiry, the gov-
ernment argues that we should take the perpetrator’s age into
account, even if it does not appear from the charging docu-
ments. Other authority, however, suggests that the Seventh
Circuit considers only the age difference exhibited by the
charging documents. See United States v. Thomas, 159 F.3d
296, 299 (7th Cir. 1998) (“We have left out of consideration
so far the age of the statutory rapist . . . . Here we are assum-
ing that he was 22 (in fact, he was 29 and his victim 16, but
remember that we are not permitted to base decision on facts
not found in the charging document).”). Mindful that, under
Taylor, we are generally “confined to the records of the con-
victing court,” Shepard v. United States, 125 S. Ct. 1254, 1261
(2005), we doubt that the fact of Valencia’s age is a subject
of judicial notice.
VALENCIA v. GONZALES 2187
[12] Moreover, an increase in the age of the perpetrator,
holding the victim’s age constant, does not ineluctably
increase the risk that physical force may be used to commit
the crime of statutory rape. Certainly, when a forty-year-old
has sex with a seventeen-year-old, it is more morally oppro-
brious to the State than when a twenty-year old does.5 More-
over, an increase in the age of the perpetrator increases the
likelihood that he will use “experience” or an “authority posi-
tion” to seduce the minor. See Velazquez-Overa, 100 F.3d at
422. It may thus increase the risk of guile, wiles, or deception
in manipulating the minor to have sex. It may increase the risk
that the perpetrator will corrupt the young person’s “virtue,”
by leading him or her into a debauched life. See Michael M.,
25 Cal. 3d at 619-20 (Mosk, J., dissenting). It may also
increase the risk that the victim will sustain a sexually trans-
mitted disease.
[13] But none of these factors create a greater probability
that the offense of unlawful sexual intercourse involves a sub-
stantial risk of the use of physical force. If anything, the con-
trary would seem to be true, as a forty-two-year-old is no
more likely to use physical force than a twenty-two-year-old,
and is probably less capable of doing so. Furthermore, to the
extent that a substantial age difference increases the violent
nature of the offense, this is a legislative determination which
we are ill-equipped to make. See Thomas, 159 F.3d at 299-
300. Here, the California legislature determined that consen-
sual sexual intercourse with a seventeen-year-old rises to the
level of a felony if the perpetrator is three years older. Since
this legislative determination “makes no statement about the
[minor’s] ability to consent,” Michael M., 25 Cal. 3d at 614,
we have held this age difference does not present a substantial
risk of the use of physical force. To hold otherwise when
presented with a larger age difference would cast us in a legis-
5
Indeed, if the age difference between perpetrator and minor is less than
three years, unlawful sexual intercourse is punishable only as a misdemea-
nor. See Cal. Pen. Code § 261.5(b).
2188 VALENCIA v. GONZALES
lative role. Therefore, even if Valencia’s age is a fact which
we can consider, it does not affect our analysis.
[14] In sum, Valencia’s conviction under section 261.5(c)
was not an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F). We, therefore, grant his petition for review
and find the BIA erred in determining that he was removable
under 8 U.S.C. § 1227(a)(2)(A)(iii).6
PETITION FOR REVIEW GRANTED, CASE
REMANDED TO THE BIA
6
Because we conclude that Valencia is not removable under the grounds
charged, we need not consider whether his conviction constituted a crime
of moral turpitude that would render him ineligible to re-adjust status to
lawful permanent residency under 8 U.S.C. § 1255(a).