Aggravated Felonies

(C)  Safe Haven.  Among other possible safer alternatives[88] to a conviction that would clearly trigger removal under this section is a conviction under 18 U.S.C. § 2252A, when applied to child pornography as defined in 18 U.S.C. § 2256(8)(C).  A part of the Child Pornography Prevention Act, 18 U.S.C. § 2252A is not listed in the aggravated felony definition.  This statute punishes the same acts as 18 U.S.C. § 2252, except that the materials involved are more broadly defined, by reference to the “child pornography” definition at 18 U.S.C. § 2256(8), to include a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”  This portion of the definition is recognized to cover the act of “morphing,” i.e., altering innocent pictures of real children so that it appears that the children are engaged in sexual activity.  An example would be placing the faces of real children on the bodies of adult women engaged in sexually explicit conduct. 

While the Supreme Court has stricken down other portions of the child pornography definition as unconstitutional, at least one court has held that this particular provision is constitutional.[89]  The Supreme Court itself suggested this section may be constitutional (but did not reach the issue), stating that “[a]lthough morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer [to images made using actual minors engaged in sexual activities].”[90] 

            This definition covers materials that would be insufficient to constitute a violation of 18 U.S.C. § 2252.  Therefore, a conviction under 18 U.S.C. § 2252A involving materials defined in 18 U.S.C. § 2256(8)(C), would not be “described in” 18 U.S.C. § 2252, and therefore should not fall within the aggravated felony definition.

[88] See, e.g., 18 U.S.C. § § 2257, 1462.

[89] United States v. Bach, 400 F.3d 622 (8th Cir. 2005).

[90] Ashcroft v. Free Speech Coalition, 535 U.S. 234, 241 (2002).