Today, the Board of Immigration Appeals (BIA), addressed one of California's statutory rape provisions: California Penal Code (CPC) 261.5(c), which criminalizes sexual intercourse between an adult a minor, when there is at least a 3 year age gap between the minor and the adult. Notably, the Ninth Circuit had previously addressed whether this statute qualified as a sexual abuse of a minor aggravated felony in Estrada-Espinoza v. Mukasey, and found that it was not, in part because it required only a 3-year age gap, and comparable federal crimes required a 4-year age gap. In addition, the federal law did not address intercourse with minors ages 17 and 18, and the California statute did. Thus, the Ninth Circuit determined that the statute was not a categorical match to the federal definition of sexual abuse of a minor. In today's case, the BIA disagreed. It determined that sexual abuse of a minor can include minors who are 16 and 17 years old, so long as the statute contains a "meaningful age differential" between the minor and the adult. The BIA then went on to find that CPC 261.5(c) is a categorical match the generic definition of sexual abuse of a minor. Because the case at issue arose in the Sixth Circuit, the BIA did not follow Estrada-Espinoza, though it recognized that in the Ninth Circuit, that case would still apply.
Read the full text of Matter of Esquivel-Quintana here: http://www.justice.gov/eoir/vll/intdec/vol26/3824.pdf