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Luis Antonio Pelayo-Garcia is from Mexico and is convicted in California of "unlawful sexual intercourse with a minor" under section 261.5(d) of the California Penal Code. As a result, the (then-) INS wants to deport him. Pelayo of course wants to stay, but he's ineligible if he's been convicted of an ?aggravated felony? in 8 U.S.C. § 1101(a)(43)(A) -- which expressly includes ?sexual abuse of a minor.? So we compare the elements.

Under federal law, you're guilty if you "knowingly engage[] in a sexual act with another person who (1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging" -- in short, if you mess around with a young teenager and you're not. The California law says sometimes substantively identical, and to find you guilty, you've got to be a "person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age."

Pelayo did the latter. That seems to be a subset of the former, right? Since if you're 21+ and fool around with a sub-16 year old (California law) you're definitionally at least four years older since you're 21+ and the victim is sub-16. So Pelayo gets deported, right?

Not so fast. The federal law also says "knowingly" whereas the state law doesn't use that same word. Now, the big fight is whether you have to know the victim's (impermissible) age, and the federal courts have made clear you don't. But you still have to "knowingly" do the act (e.g., have sex).

I can't fathom that California wouldn't have the same rule, particularly since it -- unlike the tougher federal law -- actually allows a limited "mistaken age" defense. And yet the statute doesn't. Hence the Ninth Circuit holds that because it's at least possible that Pelayo might have been convicted under California law of having intercourse on accident -- like I'm just sure that's what really transpired: "I was just tying my shoes and tripped" -- the California conviction isn't a subset of the federal crime. And since the INS only has two slim pieces of paper, none of which describe in detail Pelayo's actual conduct, the modified categorical approach doesn't work either. So he avoids the immigration consequences of what I'm virtually certain he actually did.

I've got no real beef with Judge Ikuta's analysis. It seems right to me. But I do have a problem -- at least a practical one -- with the underlying approach she's obliged to follow. Which seems to result in untoward consequences in a number of cases. Including this one.

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