Could a Florida Statutory Rape Conviction Get You Deported?

Miami is a city of immigrants. Whether you are in the United States lawfully or as an undocumented immigrant, however, you are subject to possible deportation upon conviction for a variety of federal and state criminal offenses. For example, a person admitted to the United States as a refugee under a grant of asylum may be deported if convicted of a “particularly serious crime” such as an aggravated felony.

Federal Court Cites Lack of “Age Difference” Requirement

One type of aggravated felony under federal immigration law is the “sexual abuse of a minor.” In simple terms, committing rape of a child is an aggravated felony. But what about cases where the law defines sexual abuse based solely on the victim’s age and not lack of consent–or what is often referred to as “statutory rape”?

The United States 11th Circuit Court of Appeals recently addressed this question, specifically as applied to Florida law. In this immigration case, Leger v. U.S. Attorney General, the petitioner is a Haitian refugee who was granted lawful asylum in the United States. In 2009, he pleaded guilty in Florida state court to “lewd and lascivious battery.” On two other occasions, the petitioner pleaded guilty to state charges of marijuana possession.

Based on these three convictions, federal immigration authorities sought to deport the petitioner. An immigration court under the authority of the United States Attorney General found in the government’s favor and ordered deportation. The petitioner then asked the 11th Circuit to review that decision.

The 11th Circuit ruled in the petitioner’s favor. With respect to the marijuana convictions, the 11th Circuit held in a previous case that Florida’s marijuana possession law was not a “controlled substance offense” for purposes of a deportation proceeding. The Court applied the same reasoning to this case.

As to the “lewd and lascivious battery” conviction, as relevant here the Florida statute defines the crime as engaging in prohibited sexual activity with a person between the ages of 12 and 16. A defendant cannot raise the victim’s consent–or the defendant’s lack of knowledge of the victim’s age–as a defense to the crime. For this reason, the Florida Supreme Court has described this particular form of sexual battery as “statutory rape.”

Critically, the Florida statute does not require any difference in age between the defendant and the victim. So it is technically possible for a 14-year-old to be charged with committing statutory rape for having voluntary sex with another 14-year-old, even though both parties were below the age of consent. Given the lack of any age difference requirement, the 11th Circuit held the Florida law could not be used as the basis for a federal deportation. There had to be some age difference requirement in the state law, even if it was just one year. As such, the petitioner’s state conviction did not meet the definition of “sexual abuse of a minor” as defined by federal immigration law.

Contact Asilia Law Firm Today

Beyond its potential impact on your immigration status, a conviction for any sex-based offense in Florida can have a negative–and permanent–impact on your life and freedom. It is therefore essential that you seek out qualified legal advice and representation from a Miami sex crimes attorney. Call the Asilia Law Firm in Miami today at (786) 420-3014 to schedule an initial consultation with a member of our team.

Source:

media.ca11.uscourts.gov/opinions/pub/files/202210971.pdf