Do Unreported Crimes make you Inadmissible into the United States: The Case of Statutory Rape

When an immigrant plans to immigrate into the United States, the immigrant must fill out the DS-260 Form—this is required in order to immigrate. This form is processed by the National Visa Center. One question on the form is particularly interesting. The question is whether an immigrant committed a crime for which he or she was never charged with. You probably ask yourself, why would anyone admit to a crime her or she never committed, especially if there is no way for immigration authorities to find out whether the immigrant committed the crime?

For this post, lets focus on the crime of statutory rape. Statutory rape is defined a consensual sexual activity with a child under the age of 18 in most states. This type of crime is that crime that can be discovered many years after the fact, specifically when the victim gave birth to a child/victim before the age of 18. In some cases, immigration officials are likely to forgive the applicant for his or her actions but nonetheless an immigrant might still be found to be inadmissible.

In some states, statutory rape will be overlooked if the couple married. This is known as the marital exemption, which very few states still have on the books. For example, Erica is 17 years old and Eric is 21 years of age. The couple engages in sexual intercourse but decide to get married. Eric would not be prosecuted and should not worry about having any inadmissibility issues. The other defense to statutory rape is the Romeo and Juliet defense. This defense is a valid defense when the couple is usually no more 3-4 years apart in age and the older of the two is younger than 20 years old.

The Supreme Court recently addressed issue of whether unlawful sexual intercourse with a minor can be considered an aggravated felony of sexual abuse of a minor under the Immigration and Nationality Act and therefore making a person removable. The Court also found that statutory rape based solely on the age of the participants is not an especially egregious felony. The decision goes into further detail but this is generic summary. A major underpinning for the Court’s decision is the federal law found at 18 U.S.C. 2243 which sets the federal age of consent at age 16. This serious offense could have serious immigration implications down the road.