"Circuit Split Over Elements of Generic 'Sexual Abuse of a Minor'", or "When Does 5=17 and 9=16?"

As you're aware, the question of whether a prior conviction was for "sexual abuse of a minor" can have huge immigration and sentencing consequences. Sexual abuse of a minor is an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(A). It's also an enumerated "crime of violence" for purposes of guideline §2L1.2's 16-level enhancement. But what is a "minor"?

Although the Fifth Circuit has recognized that the "the ordinary, contemporary, and common meaning of minor, or 'age of consent' for purposes of a statutory rape analysis, is sixteen[,]" it has nevertheless held that a person under age seventeen is "clearly a 'minor'" for purposes of "sexual abuse of a minor."

Turns out one of our neighbors to the west sees things differently. Yesterday, the (mini) en banc Ninth Circuit held, in Estrada-Mendoza v. Mukasey, No. 05-75850, that the elements of "sexual abuse of a minor," for purposes of the aggravated felony definition, are found in 18 U.S.C. § 2243(a). That statute effectively defines a minor as a person under age sixteen. (The Nines also pointed out that a majority of U.S. states define a minor as a person under age sixteen for purposes of sex laws, although the court considered that point irrelevant for reasons of interest only to those who have spent entirely too much time immersed in the intracacies of the Taylor/Shepard categorical approach. You know who you are.)

Given the current state of Fifth Circuit case law, this circuit split matters chiefly when it comes to Texas age-related sex offenses, which don't employ the same age-of-consent as most states. Indecency with a child under Penal Code § 21.11, and sexual assault under Penal Code § 22.011(a)(2), both prohibit various kinds of sexual activity with a "child," which they define as a person under seventeen. Under the Fifth Circuit's view, those offenses are categorically "sexual abuse of a minor." But not under the Ninth Circuit's view.

So ladies and gentlemen, start your cert petitions.

UPDATE: The Ninth Circuit blog has additional analysis here.