The statute includes within the aggravated felony definition “an offense described in section 2251, 2251A, or 2252 of Title 18, United States Code (relating to child pornography) . . . .”[352]   These offenses are aggravated felonies, regardless of the sentence imposed. 

 

            Counsel should investigate whether the particular provision is unconstitutional, either on its face or as applied.[353]  For example, 18 U.S.C. § 2252(a)(4)(B) has been held unconstitutional as applied in a relatively minor, common instance.[354]

            If a state statute prohibits the conduct defined in these federal statutes, the DHS would have an argument that the state offenses constitute aggravated felonies.

 

            The aggravated felony definition provides: “The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law . . . .”[355]  There is an argument that for offenses described in the “aggravated felony” statute as “any offense described in” a federal statute, such as the present offense, Congress intended only the listed federal offenses to be included as “aggravated felonies.”  A plain reading suggests that “any offense described in” a specific federal criminal statute applies only to a violation of that statute, and does not include violation of a similar state statute, since the federal code section “describes” only a federal offense.  Moreover, if the elements of the state statute are different than the elements of the federal statute, arguably the state offense is not an “offense described in” the listed federal statute. 

 

Finally, Congress has used the phrase “described in” as synonymous with “defined in,” to mean a conviction for violating a specific federal statute.[356] 

 

            Most judicial decisions, however, conclude that a conviction of violating a state statute whose elements fall entirely within the boundaries of an aggravated felony category constitute aggravated felonies.

 

Also, the statute is accompanied by a parenthetical phrase — “(relating to child pornography)”— that appears to limit the offense.  In another aggravated felony category, the BIA has held that this “relating to” language is “merely descriptive” and not limiting, and so has no meaning.[357]  In other words, the BIA may hold that an aggravated felony includes conviction of any offense whatsoever under a listed statute, regardless of whether the offense actually “relates to” the subject of the parenthetical language.  These rulings should be contested since they in effect ignore the plain meaning of the language Congress intentionally included in the parenthetical.

 

            It is important to examine the checklist of general aggravated felony safe havens to determine whether each offense or conviction being examined falls within one or more of the safe havens listed there.  See § 7.29, supra.

[352] INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I).

[353] Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29, 2004) (Child Online Pornography Act, 47 U.S.C. § 231, found likely to violate the First Amendment; preliminary injunction against its application was therefore upheld).

[354] United States v. McCoy, 323 F.3d 1114 (9th Cir. March 20, 2003) (court held 18 U.S.C. § 2252(a)(4)(B) unconstitutional as applied to a single intrastate act of possessing a visual portrayal of a child that had not been moved in interstate commerce and was not intended for interstate distribution, economic or commercial use).

[355] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (third to last paragraph).

[356] 18 U.S.C. § 3607(a) (“a person found guilty of an offense described in § 404 of the Controlled Substances Act (21 U.S.C. 844) . . . .”).

[357] See Matter of Ruiz-Romero, 22 I. & N. Dec. 486 (BIA 1999) and discussion of Alien Smuggling, § 7.32, supra.

AGGRAVATED FELONY - CHILD PORNOGRAPHY
United States v. Williams, No. 06-694, 128 S.Ct. 1830 (May 19, 2008) (finding constitutional a statute criminalizing, in certain specified circumstances, the pandering or solicitation of child pornography, rejecting claims the statute was overbroad under the First Amendment and impermissibly vague under the Due Process Clause because the term "simulated sexual intercourse" might include virtual child pornography or sex between youthful-looking adult actors).

Lower Courts of Second Circuit

AGGRAVATED FELONY - CHILD PORNOGRAPHY - CHILD PORNOGRAPHY
Gonzalez v. Ashcroft, ___ F.Supp.2d ___ (S.D.N.Y. April 29, 2005) (New York conviction for "use of a child in a sexual performance" under New York Penal Law ("N.Y.P.L.") 263.05, did not constitute an offense relating to child pornography, and was therefore not an aggravated felony under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I), because the statute of conviction permits convictions for a lesser degree of scienter when parents or guardians are charged with violating the statute than the federal statutes encompassed by the aggravated felony provisions require, i.e., to act intentionally or knowingly: "Unless the scienter element is read so as not to attach to the parent's knowledge of the nature of the performance, the clause regarding parents is rendered superfluous.").

Ninth Circuit

AGGRAVATED FELONY " CHILD PORNOGRAPHY " POSSESSION OF CHILD PORNOGRAPHY
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct. 6, 2015) (California conviction of possession of child pornography, Penal Code 311.11(a), is broader than the relevant federal aggravated felony statutory definition, and there is a realistic probability that overbroad conduct would be prosecuted in California, and this conviction therefore is not considered to be an aggravated felony for purposes of INA 101(a)(43)(I), 237(a)(2)(A)(iii): No provision of the federal statute's definition of sexually explicit conduct can be read to encompass any touching on any part of a child's body with the intent of arousing sexual desires. California's child pornography statute thus sweeps in depictions of a broader range of sexual conduct than the federal child pornography statute encompasses. On this basis, Penal Code 311.11(a) is categorically overinclusive.).

AGGRAVATED FELONY " CHILD PORNOGRAPHY " ELEMENTS
United States v. Sheldon, __ F.3d __ (9th Cir. Apr. 9, 2014) (federal conviction for violation of 18 U.S.C. 2251(a) does not require proof that defendant had knowledge that the materials used to produce child pornography had travelled in interstate commerce).

AGGRAVATED FELONIES " CHILD PORNOGRAPHY " NO FEDERAL JURISDICTION OVER IMAGES THAT DID NOT CROSS STATE LINES
United States v. Wright, 625 F.3d 583 (9th Cir. Nov. 4, 2010) (no federal jurisdiction over an offense involving transmitted images that did not cross state lines).

AGGRAVATED FELONY - CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, ___ F.3d ___, 2009 WL 3086012 (9th Cir. Sept. 29, 2009) (court martial violation of failing to comply with lawful general order that government computers shall be for official use, and that such "authorized purposes" may not include "uses involving pornography," in violation of Article 92 of the Uniform Code of Military Justice was not categorically an aggravated felony under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I), which specifically lists as aggravated felonies an offense described in 18 U.S.C. 2252(a)(2) and (a)(4), both requiring conduct involving a visual depiction of a minor engaging in sexually explicit conduct, since it is undisputed that a conviction for violating Article 92 does not necessarily involve a depiction of a minor engaging in sexually explicit conduct).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CHILD PORNOGRAPHY
People v. Petrovic, 224 Cal.App.4th 1510, 169 Cal.Rptr.3d 648 (2d Dist. Mar. 26, 2014) (California conviction of knowingly possessing or controlling child pornography on a computer, under Penal Code 311.11(a), punished merely visiting child pornography websites, without evidence of actual possession or control of the pornography), compare United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006) (Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography).

Other

AGGRAVATED FELONY - CHILD PORNOGRAPHY - TEXAS
Texas Penal Code, 43.26(a)(1) prohibits possession or promotion of child pornography. This statute penalizes possession of material containing an image of a child engaging in "sexual conduct," whereas the federal child pornography statutes listed in the aggravated felony definition require "sexually explicit conduct." If it can be shown that the Texas statute includes more material than the federal statute, a Texas conviction would be divisible with respect to the child pornography aggravated felony definition.