Fifth Circuit finds that TX Conviction for Sexual Assault of a Child is a Crime of Child Abuse

The Fifth Circuit has determined that a Texas conviction for sexual assault of a child is a crime of child abuse. In so doing, the court deferred to the Board of Immigrations’ (Board) interpretation of this ground of deportability, articulated in its decisions in Matter of Velazquez-Herrera and Matter of Soram. The court noted that the statute at issue requires intentionally or knowingly engaging in acts involving direct sexual contact with a child, which falls squarely within the Board’s definition.

The full text of Garcia v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/19/19-60097-CV0.pdf

Ninth Circuit finds Lewd and Lascivious Acts Conviction is not CIMT or Crime of Child Abuse

The Ninth Circuit has determined that a conviction under California Penal Code 288(c)(1) (lewd and lascivious acts on a child who is 14 or 15 years old when the defendant is at least 10 years old than the the child) is neither a crime involving moral turpitude nor categorically a crime of child abuse. A crime under § 288(c)(1) contains five elements: (1) willfully and lewdly; (2) committing any lewd or lascivious act; (3) on a child ages 14 or 15; (4) with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant or the child; and (5) the defendant must be at least ten years older than the child.

The “lewd or lascivious” element of the crime focuses on the defendant’s sexual intent, rather than the act performed. If the defendant has the required intent, then any touching violates § 288, even if the touching is outwardly innocuous and inoffensive. Physical affection among relatives, generally considered acceptable conduct, nonetheless could satisfy the ‘any touching’ aspect of section 288. Even constructive touching can violate § 288(c)(1). If the minor touches himself, that act is imputable to the defendant as if the touching had been actually done by his own hands. A person may violate § 288(c)(1) by making sexual requests over the telephone, or through text messages.

The mens rea requirement of § 288(c)(1) has also been expansively construed. Section 288(c)(1) requires that the defendant act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or of the minor. But the statute does not require that the defendant know that the minor is underage. Under California law, a good faith and reasonable mistake of age is a defense to statutory rape, but it is not a defense to a charge under § 288(c)(1).

Because § 288(c)(1) requires only sexual intent, and because a good-faith reasonable mistake of age is not a defense, a defendant is not required to have evil or malicious intent. Section 288(c)(1) thus lacks the corrupt scienter requirement that is the touchstone of moral turpitude. Nor does § 288(c)(1) require intent to injury or actual injury. Any touching, even if consensual, outwardly innocuous and inoffensive, and innocently and warmly received, can violate § 288(c)(1). Section 288(c)(1) does involve a protected class of persons—minors aged 14 or 15. But not all criminal statutes intended to protect minors establish crimes involving moral turpitude, if the conduct at issue is relatively minor.

“We hold that § 288(c)(1) is not categorically a crime involving moral turpitude. Because the statute contains a single, indivisible set of elements, the modified categorical approach does not apply.”

The BIA defines crime of child abuse, child neglect, or child abandonment as a “unitary concept” that encompasses “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.” The “maltreatment” element requires either proof of actual injury or proof of a “sufficiently high risk of harm to a child.”

Section 288(c)(1) is broader than the generic definition of a “crime of child abuse” in two ways. First, the generic definition requires that a defendant act with a mens rea of at least criminal negligence. Section 288(c)(1) has no such requirement. It requires a defendant to have acted “willfully,” but this requirement applies only to the defendant’s commission of the act. Section 288(c)(1) requires only that a defendant did not act accidentally; it does not “require any intent to violate law, or to injure another, or to acquire any advantage.”

Second, § 288(c)(1) does not require proof of actual injury, or a “sufficiently high risk of harm,” as an element of the offense. Section 288(c)(1) applies irrespective of whether the touching is outwardly innocuous, or whether the minor is aware of the nature of the contact at all. “We hold that Cal. Penal Code § 288(c)(1) is not categorically a ‘crime of child abuse’ under 8 U.S.C. § 1227(a)(2)(E)(i).”

The full text of Menendez v. Whitaker can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/08/14-72730.pdf

Fourth Circuit Addresses Sex Offenses against Minors

The Fourth Circuit has determined that a Maryland conviction for sexual solicitation of a minor is not categorically a crime involving moral turpitude (CIMT).  The court noted that the Board of Immigration Appeals' (BIA) decision in Matter of Silva Trevino (in effect at the time of the petitioner's conviction) deemed a sexual offense against a minor to be a CIMT only if the statute required the defendant to know (or should know) the victim's age.  The Maryland statute at issue, however, had no such knowledge requirement.  In the instant case, the BIA issued a published decision, reversing its previous precedent, and finding that a sex offense involving a minor could be a CIMT even absent a requirement that the defendant know or should know the victim's age, even if the conviction involved particularly young victims or a sufficient age difference between the victim and the defendant.  The BIA deemed the petitioner's conviction to be a CIMT under this new definition.

While the Fourth Circuit recognized that the BIA has the authority to change its precedent, it emphasized that the BIA must provide a reasoned explanation for doing so.  In the instant case, the BIA failed to explain its sudden departure in precedent.  "Here, we are without a reasoned explanation from the Board for its change in position. And without one, we cannot know whether and how the Board has accounted for the prospect that its prior policy may have engendered serious reliance interests in aliens who pled guilty to certain sexual offenses under the Silva-Trevino regime.  Because the Board’s path from the Silva-Trevino cases to Jimenez-Cedillo’s cannot reasonably be discerned, its decision is arbitrary and capricious and must be set aside."

The Fourth Circuit remanded to allow the BIA to explain its departure in precedent, and also to determine if any new definition of a CIMT could be retroactively applied to Jimenez-Cedlllo. 

The full text of Jimenez-Cedillo v. Sessions can be found here: 

http://www.ca4.uscourts.gov/opinions/171477.P.pdf

Third Circuit Finds that PA Conviction for Unlawful Contact with a Minor is Crime of Child Abuse

The Third Circuit has deferred to the Board of Immigration Appeals' definition of a crime of child abuse.  In addition, the Court found that a Pennsylvania conviction for unlawful contact with a minor meets this definition, even though it criminalizes mere communication with a minor, because the communication must be for the purpose of an illicit sexual act, and thus, poses a significant risk of harm to the child.

The full text of Mondragon-Gonzalez v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/171710p.pdf

Tenth Circuit Construes Sexual Abuse of a Minor Aggravated Felony Ground

The Tenth Circuit has concluded that the sexual abuse of a minor aggravated felony contains a mens rea requirement.  Thus, a conviction for unlawful sexual activity with a minor in Utah (a strict liability offense) does not fall within the ambit of the aggravated felony conviction.  The court declined to defer to the Board of Immigration Appeals' decision in Matter of Rodriguez Rodriguez, finding that the decision did not address the issue of whether the aggravated felony provision included a mens rea requirement.  

The full text of Rangel-Perez v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9566.pdf

Fourth Circuit Addresses a New Jersey Conviction for Child Endangerment

In the context of a criminal appeal, the Fourth Circuit addressed the elements of a New Jersey conviction for child endangerment under N.J. Stat. Ann. § 2C:24-4(a).  The court noted that the statute does not require any physical contact with the victim, and thus, does not match the federal generic definition of a crime of sexual abuse.  This decision could be helpful when analyzing whether a conviction under this statute qualifies as a sexual abuse of a minor aggravated felony for immigration purposes.

The full text of United States v. Berry can be found here: http://www.ca4.uscourts.gov/Opinions/Published/144934.P.pdf

Sixth Circuit Defers to Board of Immigration Appeals' Definition of Sexual Abuse of a Minor

Adding to a circuit split, the Sixth Circuit deferred to the Board of Immigration Appeals' decision in Matter of Esquivel-Quintana.  In so doing, the court rejected the Ninth and Fourth Circuit's reliance on 18 U.S.C. § 2243(a) for determining when statutory rape crimes qualify as sexual abuse of a minor aggravated felonies. 

The court also declined to apply the rule of lenity, finding that even though a criminal statute was at issue, it was being interpreted in the civil context, and thus, the rule of lenity did not apply.  The court acknowledged a growing trend to apply the rule to the interpretation of a criminal statute in the civil context. 

The full text of Esquivel-Quintana v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/16a0012p-06.pdf

Ninth Circuit Issues Unpublished Decision Finding that a Utah Conviction for Sexual Abuse of a Minor is not an Aggravated Felony

An unpublished crimmigration/illegal reentry decision - my favorite type of unpublished decision!  In evaluating whether a Utah conviction for sexual abuse of a minor qualified as a sexual abuse of a minor aggravated felony, the Ninth Circuit noted that the statute criminalizes non-sexual conduct—such as kicking a boy’s genitals—and thus, the statute is broader than generic federal definition of sexual abuse of a minor. 

Switching gears, the court also addressed whether the intent requirement of the statute, the court stated that "the Utah Court of Appeals appears to treat the two prongs of the intent element as alternative means of satisfying a single intent element.  Thus, a jury does not need to agree on whether a defendant had an intent to harm or an intent to arouse his sexual desire to render a guilty verdict.  This conclusion is bolstered by the charging information in this case, which listed both prongs of the intent element."  Because the statute is not divisible with respect to the intent element, the modified categorical approach is not appropriate.

The lesson: Utah Code § 76-5-404.1(2) is not a sexual abuse of a minor aggravated felony.

The full text of US v. Morales-Landa can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/06/22/14-50460.pdf

Fourth Circuit Addresses Maryland Conviction for Causing Abuse to a Child

The Fourth Circuit determined that a Maryland conviction for causing abuse to a child is not categorically a sexual abuse of a minor aggravated felony.  The court noted that Board of Immigration Appeals (Board) has yet to issue a published decision providing a generic definition of sexual abuse of a minor; the Board's previous precedential decision merely hinted at what the definition of sexual abuse of a minor might encompass, without providing a concrete generic definition for the federal courts to employ.

The court noted that the least culpable conduct criminalized under the statute includes the failure to act to prevent sexual abuse of a child when one has a duty to do so.  In light of the lack of a clear generic definition articulated by the Board, the court remained unconvinced that a mere failure to prevent harm comes within the ambit of sexual abuse of a minor.

Though this a promising decision, it is subject to being reviewed when the Board issues a precedential decision that the Fourth Circuit believes provides a concrete definition of sexual abuse of a minor.

The full text of Amos v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132005.P.pdf

Ninth Circuit Addresses Third-Degree Child Molestation in Washington

In the context of a federal criminal case, the Ninth Circuit determined that a conviction for third-degree child molestation in Washington did not qualify as a sexual abuse of a minor aggravated felony.  To constitute sexual abuse of a minor, a conviction must contain the following four elements:  (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.  Alternatively, the conviction must contain the following three elements: (1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse. 

The court concluded that the Washington statute at issue was indivisible, and was missing required elements from the second definition of sexual abuse of a minor (which was the definition at issue in the current case).  Specifically, the Washington statute criminalizes touching over clothing as opposed to the generic offense’s requirement of skin-to-skin contact.  Thus, it is missing the element of abuse required by the second definition of sexual abuse of a minor.

The full text of US v. Martinez can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/28/12-30185.pdf

Second Circuit Reverses Denial of a Continuance; Finds NY Penal Code 130.65 is not an Aggravated Felony

Flores, a native and citizen of Honduras, entered the United States without inspection in 1991.  He married a U.S. citizen and raised a family in the United States.  In 2009, he was convicted, pursuant to a jury verdict, of two counts of first‐degree sexual abuse in violation of N.Y. Penal 130.65.  After several continuances, he requested a further continuance to pursue adjustment of status under section 245(i) of the INA, in conjunction with a waiver of inadmissibility under INA § 212(h).  He also applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).  The Immigration Judge (IJ) denied his request for a continuance, and found him ineligible for adjustment of status because the priority date was not current on the 2001 petition filed by his sister, and the petition filed by U.S.-citizen wife hadn't been adjudicated yet.  The IJ further found that his sexual abuse conviction was a sexual abuse of a minor aggravated felony that precluded asylum eligibility, and particularly serious crime that precluded withholding of removal eligibility.  The IJ denied CAT protection on the merits.

On appeal, the Second Circuit determined that the IJ abused his discretion in denying Flores' request for a continuance because he did not evaluate if the petition filed by his wife was prima facie approvable.  Furthermore, the Board of Immigration Appeals erred in affirming the denial of the continuance based on its determination that Flores' conviction for an aggravated felony precluded him from applying for a 212(h) waiver.  The Second Circuit noted that even if his convictions qualified as aggravated felonies, because he had never been accorded lawful permanent residence, the convictions would pose no bar to a 212(h) waiver.

The Second Circuit additionally found that the IJ erred in his application of the modified categorical approach to determine that Flores was convicted of an aggravated felony.  Although the statute at issue was divisible as to some elements (i.e. whether the victim was a person under the age of 11, a person incapable of giving consent), all four prongs criminalized acts of "sexual contact" that could fall short of actual abuse.  Thus, it was improper for the IJ to consult the complaint to determine that Flores' conduct rose to the level of abuse.  Though the Second Circuit affirmed the IJ's determination that Flores' conviction was a particularly serious crime barring asylum and withholding, it still found that the improper use of the modified categorical approach could have a significant impact on the discretionary determination for adjustment of status, and thus, Flores was prejudiced by the IJ's determination.

Though the Second Circuit remanded the case for a proper analysis under the modified categorical approach, its analysis suggests that all four prongs of the statute may criminalize acts that do not rise to the level of abuse, and as such, may never qualify as a sexual abuse aggravated felony.  

The full text of Flores v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/cf44b58b-7db5-432c-9649-42019c135a9c/5/doc/12-2406_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cf44b58b-7db5-432c-9649-42019c135a9c/5/hilite/

First Circuit Addresses Maine's Gross Aggravated Assault Statute

Today, the First Circuit examined whether Maine's gross aggravated assault statute, which criminalizes engaging in a sexual act with a victim under the age of 14, qualifies as a crime of violence under the federal law sentencing law.  In finding that it does, the court observed that the commission of this offense creates a risk that the perpetrator will intentionally use force against the victim.  This implies that the conviction would likely be considered a crime of violence under 8 USC 16(b), which defines crimes of violence of immigration purposes.

The full text of United States v. Velazquez can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1295P-01A.pdf