Wednesday, May 25, 2005

Valencia v. Gonzales (9th Cir. - May 12, 2005)

Let me start out by reiterating -- yet again -- that I'm no fan of child molesters. Or a lot of other people, for that matter. And I say that even though this case apparently doesn't even involve a child molester. I just wanted to get out the caveat up front. Just so everything's clear.

Okay, that said, I think Judge Bea is right in this one. The question is whether a person who has sex with a person who is under 18 and who is three years older than his or her partner has automatically committed a "crime of violence" and hence subject to automatic deportation. And Judge Bea says: "Yes, under circuit precedent, s/he has, so deported ye shall be, but that's probably the wrong rule." And he's pretty darn convincing.

The result here means that anyone who just turned 21 and has sex with someone one day short of being 18 is automatically subject to deportation because such conduct necessarily entails "a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." I just don't think that's necessarily the case: that such sexual interactions by definition include a risk of physical force against another. A large majority of men and women have had sex by the time they turn 18. I'm not of the belief that every sexual interaction between such individuals and a 21-year old necessarily involves the use (or risk of use) of force. There are plenty of people, after all, who are 21 and get married to someone just shy of their 18th birthday. Those don't necessarily involve the risk of physical force either.

It's a bad rule. It should be reversed. But as long as it's only applied (as it is here) to deport foreigners, and as long as those who critique the rule are labeled (as they are) as defending child molesters, it's difficult to find support -- even amongst life-tenured (but often ambitious) federal judges -- for reversing such a rule. Which is too bad.