In an unpublished decision, the Ninth Circuit determined that an Idaho conviction for sexual abuse of a child under age 16 does not match the generic federal definition of sexual abuse of a minor.   The generic definition includes statutes where (1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse. Abuse is “physical or psychological harm in light of the age of the victim in question,” and sexual contact with a victim under the age of fourteen is per se abusive.  The elements of the Idaho statute at issue are: (1) sexual contact, defined as any physical contact; (2) with a minor child under sixteen; and (3) with the intent to gratify the lust, passions, or sexual desire of the actor, minor child, or third party.  Because the statute does not “expressly include physical or psychological abuse of a minor as an element of the crime,” and is “not limited to conduct targeting younger children,” it is overbroad.  Though this decision arose in the context of a criminal sentencing case, the same definition of sexual abuse of a minor is employed in the immigration context, and thus, the decision provides guidance on the immigration consequences of a conviction under this statute.

The full text of United States v. Haycock can be found here: