Saturday, August 18, 2007

Ninth Circuit makes statutory rape deportable.

On August 16, 2007, the Ninth Circuit Court of Appeals for the Ninth Circuit ruled that statutory rape pursuant to California Penal Code 261.5(c) was a deportable offense. In Juan Elias Estrada-Espinoza vs. Gonzales, the Ninth Circuit upheld a BIA decision ordering Mr. Estrada-Espinoza deported.

The facts are striking: Mr. Estrada-Espinoza met the alleged victim when she was 16 and he was 20. They began dating and with the consent of both sets of parents moved into one of the parents' homes. Eventually, they got their own apartment and raised a child together.

The district attorney succeeded in convicting Mr. Estrada-Espinoza of, among other offenses, statutory rape in violation of California Penal Code 261.5

The Ninth Circuit upheld the BIA's defining the 261.5 offense as "sexual abuse of a child" and therefore and aggravated felony and therefore deportable.

This case has major ramifications in places where there is a large number of Mexican American immigrants, of any other group of immigrants whose culture and society sanctions sexual relationships between older males and younger females. It does not matter if her family says its OK, it does not matter if she consents, if you have sex with a girl under 18 and you are more than three years older than her, you can be convicted of violation of California Penal Code 261.5, and after this decision will be deported and denied naturalization or citizenship.

see full decision here:$file/0575850.pdf?openelement

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or

Mr. Venie's website can be found at

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