Monday, October 20, 2008

Estrada-Espinoza v. Mukasey (9th Cir. - Oct. 20, 2008)

A couple of years ago, Judge Alarcon wrote an opinion that said that you get deported if you have sex with someone who's 16 or 17. At least if that person is not your wife. It's a crime in California (since, in our fine jurisdiction, 18 is the age of consent), and even if you merely get put on probation, we still ship you out. This decision was unanimous, joined by Judges Hug and McKeown.

Last year, the Ninth Circuit addressed this same issue, and on the basis of this recently decided precedent, voted to deny the petition. But Judge Thomas (joined by district judge Leighton) concurred, arguing that the prior precedent was wrongly decided (albeit binding).

You can guess where this is going. Today, the en banc court reverses the panel and overrules the prior (two-year old) precedent. Holding that, yes, it's a crime, but that at least when the victim is 16 or 17, it doesn't constitute felony sexual abuse of a minor categorically sufficient to justify deportation. On an extremely close vote of 11-0.

Such was the short life of Afridi.