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Sexual Abuse Of Minors: Minor Acts, Major Consequences?

by Elizabeth Reichard

In recent years, our federal and state governments have cracked down on those convicted for sex offenses against children. Most people are aware that state governments, in their efforts to protect children, have increased prison sentences and enacted Megan's Law legislation requiring registration of sex offenders and community access to those registration files. Most people are not aware, however, that in addition to criminal consequences for their crimes, immigrant sex offenders face further punishment—deportation from the United States.

Under the Immigration and Nationality Act ("INA"), the "sexual abuse of a minor" is considered an aggravated felony for which an immigrant, either permanent or temporary, can be deported. While deporting aliens for committing sexual offenses against children is in keeping with our national efforts to protect children and crack down on sex offenders, the extent to which courts have interpreted sexual abuse has left many immigrants convicted of minor sexual offenses with little recourse.

Aggravated Felonies Generally

An aggravated felony is a crime for which an alien, if convicted, can be removed at any time after admission. INA §237(a)(2)(A)(iii), see also Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). If an alien is convicted of an aggravated felony, the immigration consequences are severe. For example, unlike an alien who commits a Crime Involving Moral Turpitude ("CIMT"), an aggravated felon is deportable regardless of how long he/she has lived in the United States. An aggravated felon also can be deported without regard to the actual or potential sentence for the crime committed. So, for example, even if convicted of a misdemeanor for which the maximum sentence is six months imprisonment, the alien remains deportable. Other consequences for aggravated felons include: preclusion from most forms of discretionary relief from deportation, mandatory detention throughout the proceedings, and a permanent bar to returning to the United States after removal.

Sexual Abuse of a Minor is an Aggravated Felony

When Congress passed Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") in 1996, it added "sexual abuse of a minor" to the list of aggravated felonies. INA §101(a)(43)(A). In doing so, Congress provided no guidance as to the meaning of this crime other than that sexual abuse is an aggravated felony regardless of whether it is committed in violation of state or federal laws. INA §101(a)(43)(A). It is unclear what Congress intended by "sexual abuse of a minor." Perhaps Congress hoped the INS would employ the same technique used by Justice Stewart when defining obscenity, or hardcore pornography. "I know it when I see it." Jacobellis v. State of Ohio, 84 S. Ct. 1676, 1683 (1964) (Stewart, J. concurring). If only it were that simple. The sexual abuse of a minor is not always something that can be known when it is seen. In fact, as recent BIA and Federal Court decisions have shown, its meaning goes well beyond what is typically seen as sexual abuse.

Because of the statute's ambiguity, the BIA and Federal Courts have begun to identify certain acts that are considered sexual abuse of a minor. The analysis found in In Re: Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), has emerged as guide for courts making this determination. In Rodriguez-Rodriguez, the BIA considered whether indecent exposure, as defined under Texas law, constituted the "sexual abuse of a minor" for removal purposes. Id. The BIA looked to federal statutes for guidance in making this determination. It found the definition of sexual abuse in 18 U.S.C. §§2242, 2243 and 2246 instructive, but too restrictive because the statutes require physical contact. Id. Instead, it held that 18 USC §3509(a) provides a more accurate and inclusive definition. There, the sexual abuse of a minor is defined as "the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children." Id. Using this definition, the BIA held that "indecency with a child by exposure" (i.e. flashing), a crime that does not involve sexual contact or the threat of sexual contact, qualifies as the sexual abuse of a minor. The BIA qualified its holding, stating that did not adopt §3509(a) "as a definitive standard or definition but invoke[d] it as a guide in identifying the types of crimes [it] would consider to be sexual abuse of a minor." Id.

Guided by the Rodriguez-Rodriguez analysis, other courts have attempted to identify acts constituting the sexual abuse of a minor. Sexual abuse now includes: taking indecent liberties with a child regardless of whether physical contact is made, Bahar v. Ashcroft, 264 F.3d 1309, 1313 (11th Cir. 2001), statutory rape, Mugalli v. Ashcroft, 258 F.3e 52, 54-61 (2d Cir. 2001), and misdemeanor attempted child abuse, US v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001).

The expansive view taken in Rodriguez-Rodriguez and subsequent cases opens the door to countless other offenses including ones that only marginally seem to qualify as sexual abuse. One such crime that may be identified as sexual abuse of a minor is importuning, or soliciting, children over the internet. See NY Penal Law §100.00, OH Rev. Code §2907.07(E), Ind. Code Ann. §35-42-4-6(a)(4). Under Ohio law, for example, it is a crime, punishable for six to twelve months imprisonment, for an adult to solicit through the use of a telecommunications device a minor to engage in sexual activity. OH Rev. Code §2907.07(E). This law is enforced by police officers posing as minors in internet chat rooms and essentially entrapping adults engaged in online conversation with "minors." Importuning, as described here, may constitute an aggravated felony under the Rodriguez-Rodriguez standard and 18 USC §3509(a) because it involves the solicitation of a minor "to engage in sexual activity." OH R.C. 2907.07(E). According to Sixth Edition of Blacks Law Dictionary, solicitation is defined as "[a]sking; enticing; urgent request. The inchoate offense of… encouraging someone to engage in illegal activity." (emphasis added) Under the 18 USC §3509(a), enticement is included in the definition of sexual abuse of a minor.

The fact that Rodriguez-Rodriguez may open the door to making importuning or soliciting an aggravated felony shows just how broad and all-inclusive the meaning of sexual abuse has become. There are a number of reasons why it would be problematic to define importuning as sexual abuse. First, enticement in the context of importuning is drastically different from the kind of enticement referred to in 18 USC §3509(a). A conversation or a proposition made over the internet, in a chat room for example, hardly involves enticement to engage in "sexually explicit conduct or rape, molestation, prostitution, or other form of sexual exploitation of children" as required under 18 USC §3509(a). If anything, it constitutes lewd and lascivious conversation.

Second, it can be argued that the BIA incorrectly applied 18 USC §3509(a) in Rodriguez-Rodriguez. Section 3509 is a social welfare provision affording rights protection to children in a various situations. According to the Dissent Opinion in Rodriguez-Rodriguez, the determination of what is an aggravated felony has nothing to do with affording rights, but rather with what qualifies under criminal code as sexual abuse. Therefore, the federal criminal definitions of sexual abuse found in §§2242, 2243, and 2246 should apply.

Third, importuning should not qualify as sexual abuse of a minor because such an act does not appear to fit within the plain meaning of §101(a)(43)(A). The sexual of abuse of a minor as defined in §101(a)(43)(A) is listed as an aggravated felony along with murder and rape. Both murder and rape imply imminent death or physical harm. Communication over the internet that establishes a meeting place hardly implies such imminent death or physical harm.

Another Option

It must be emphasized that immigrants who commit sexually related crimes against children, be they abuse or otherwise, are subject to the same punishments and sentencing as U.S. citizens. The difference between immigrant and U.S. citizen sex offenders is that immigrants are doubly punished; after serving his/her time in prison, he/she is subject to the added punishment of deportation. Punishment of deportation is in keeping with the government's zero tolerance policy for immigrants who commit criminal offenses. Whether or not one agrees with this zero tolerance policy, it still somehow seems unfair to impose the harshest punishment upon those who commit peripheral sexual offenses (i.e. flashing or chatting online). Rather than continuously expanding the meaning of the aggravated felony of sexual abuse of a minor, perhaps it would be more reasonable to impose a less stringent punishment on these offenders by defining their activities as Crimes Involving Moral Turpitude ("CIMT").

A CIMT makes an alien deportable if he/she (1) commits a CIMT within five years of admission, (2) is convicted or admits to committing the that crime, and (3) is subject to a sentence of one or more years if convicted. INA §237(a)(2)(A)(i). Those convicted of CIMTs are deportable like aggravated felons, but have procedural safeguards and options for relief that are unavailable to aggravated felons.

There is little doubt as to whether acts that do not require physical contact or physical presence, but do involve sex and children, are CIMTs. A CIMT involves "conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general… Moral turpitude has been defined as an act which his per se morally reprehensible and intrinsically wrong, or malum in se." Matter of Franklin, 20 I&N Dec. 866, 868 (BIA 1994), aff'd 72 F.3d 571 (8th Cir. 1995), US v. Ekpin, 214 F. Supp. 2d 707, 714 (S.D. Tex 2002). Without even looking to case law, crimes such as indecent exposure and importuning are most likely considered "base, vile, or depraved, . . . [and] morally reprehensible." Id. Because these acts would qualify as CIMTs, there seems to be little reason for classifying them as aggravated felonies. The immigrant remains deportable, but at the same time, is punished less severely, and rightly so, for a less severe offense.

About The Author

Elizabeth Reichard is a summer associate at Cyrus Mehta & Associates, PLLC. She just completed her second year at Case Western Reserve University Law School, where she is the Editor-in-Chief of the Journal of International Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.