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California

He had sex with his 16-year-old girlfriend and was almost deported. Now he can stay

______ ______ ______ was a legal permanent resident of the U.S. after immigrating from Mexico. Then he had sex with his 16-year-old girlfriend when he was 20, went to jail and faced deportation back to Mexico. http://www.sacbee.com/news/politics-government/article153329569.html

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A 9-0 shutout! That includes creative and original constitutional interpretationists!

Ruling (PDF): https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf

Note it was “extremist conservative” Clarence Thomas who wrote the opinion as well.

First, thanks for the PDF.

Second, shouldn’t the IML also fall into this category in respect to the general age of consent is 16 years of age, since it’s a federal law? a person in California probably wouldn’t be convicted in 40 other states if the victim was 17 years old. The opinion here resembles the problem with an INTERNATIONAL ML as it represents a federal statute. There really shouldn’t be an IML because of the so many different levels of consent per state. Every state has a different registration requirement that when applied to a federal level, then there is confusion in the several different ages of consent.

Exactly!

As I’ve been saying all along, I don’t understand why any challenge to IML wouldn’t include a challenge of it violating the 5th amendment’s inferred equal protection.

Even two people from the same state, with the same crime and outcome, could be treated differently by IML if they got off the registry but one traveled to Florida for more than 48 hours and was permanently put on the national registry. Not only that, but, as you pointed out, different states set the bar differently for what is an offense, as well as what crimes will get you on the registry.

IML just can’t be equally applied on a national basis no matter what games they try to play to do so, since the registry is controlled by the individual states.

I am sure they will try to defend it by saying we have federal laws that “felons” can’t own guns and those are based on State laws that differ on what constitutes a “felony”. Hopefully a good lawyer can articulate the huge differences between restricting one’s access to a firearm, and restricting one’s ability to travel as well as being put at risk of death or incarceration in the wrong country due to IML.

Janice is on this. She tried suing to halt it but the judge ruled there wasn’t enough ground to sue on before it went into full effect. Now that its starting to roll out, Janice could now file a new case. It’s high on list.

A felon has the capacity to regain gun rights when the charge is reduced to a misdemeanor.

The same cannot be said for registrants.

Another point, since IML is a federal law, then there is one federal law stating on those with convictions be put on the registry. It’s the 2003 Smith v Doe decision. In it, they identified who goes onto the registry. By doing so, it implicitly states those without convictions should not be on the registry. That means everyone with their cases dismissed should not be on the registry.

Welp, that conflicts with California law, which is being used for the FEDERAL IML. This now falls under the same idea that Justice Thomas alluded to, needing to fall back upon who should be on the registry by following established law set for the nation, not one state, when dealing with a Federal law.

@Chris F
Equal Protection Clause is within the 14th Amendment; the 5th is more about due process, which also comes into play here.

I’m sure there’s not a problem with IML, as it’s just “regulation” dontcha know? I really want to see a judge rule some way on IML, just to get it into the judiciary pipeline.

–AJ

@AJ

Since IML needs to really be fought on a federal level and not a lawsuit against a particular State, I was under the impression that the 5th amendment must be used.

Here is some info from Wikipedia about the 14th and how the 5th acts in a similar fashion:

By its terms, the clause restrains only state governments. However, the Fifth Amendment’s due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing some of the same restrictions on the federal government: “Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment which applies only to the States, the concepts of equal protection and due process are not mutually exclusive.”[42] In Lawrence v. Texas the Supreme Court added: “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests”

@Eric Knight
First, a technical correction: 8-0, as Gorsuch didn’t participiate in consideration or decision.

Second, as the article says, SCOTUS specifically addressed that they are not creating or imposing any sort of national age of consent. All they did is say that for immigration/deportation issues, statutory rape only applies to minors under 16. From the article: “The court was quick to note that their decision does not change age of consent laws in any state, only whether legal immigrants can be removed from the U.S. based on statutory rape laws.” From the decision itself: “(e) This Court does not decide whether the generic crime of sexual abuse of a minor requires a particular age differential between the victim and the perpetrator or whether it encompasses sexual intercourse involving victims over 16 that is abusive because of the nature of the relationship between the participants.”

That all said, it’s heartening to see that SCOTUS avoided “legislating from the bench” and decided the case on its merits. Now if we could just get the rest of government to stop “trial by legislature” (i.e. Bills of Attainder). Maybe the courts will grow a pair and take on the BoA issues.

BTW, in another 8-0 decision, SCOTUS gave LEOs even more power and less accountability: https://www.supremecourt.gov/opinions/16pdf/16-369_09m1.pdf

Again: “Warrants? We don’t need no stinkin’ warrants!” And so much for being secure in your home.

–AJ

Why do they (in the opinion) keep talking about *Statutory Rape*? There is no such mention of this in federal code. And certainly not in the State of California, where this offense was explicitly and purposely renamed to “Unlawful Sexual Intercourse with a Minor” and broken out of the “Rape” Statute (PC 261 to PC 261.5) – by the CA Legislature over 40 years ago? Very much so on purpose, as this “offense” has absolutely nothing to do with Rape, as it exists in California.

Historically, statutory rape afforded the head of household the chance to demand compensation for the loss of a mature daughter’s virginity, which held significant material value. The chiiiiildren!

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