(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).

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).

BIA

AGGRAVATED FELONY " CHILD PORNOGRAPHY
Matter of RAM, 25 I&N Dec. 657 (BIA 2012) (California conviction for possession of child pornography, under Penal Code 311.11(a) [knowingly possess or control any image or film that depicts a person under the age of 18 years engaging in or simulating sexual conduct] is an aggravated felony, since it is an offense described in 18 U.S.C. 2252, and therefore bars political asylum under INA 208(b)(2)(A)(ii), (B)(i), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(i) (2006)); see 18 U.S.C. 2252(a)(4) (2006) (punishing the knowing possession of child pornography); see also Armijo v. Mukasey, 266 F. Appx 511 (9th Cir. 2008) (holding that a conviction for possession of child pornography under section 311.11(a) of the California Penal Code is for an offense described in 18 U.S.C. 2252(a)(4)(B), which prohibits possession of visual depictions of minors engaging in sexually explicit conduct).

AGGRAVATED FELONY - CHILD PORNOGRAPHY - SENTENCE
United States v. Kuchinski, ___ F.3d ___ (9th Cir. Nov. 27, 2006) (conviction for receipt and possession of child pornography is affirmed over claims of error regarding defendant's plea agreement and double jeopardy, but his sentence is vacated as he was sentenced in error when child pornography images in his cache files, which he neither controlled nor even knew the existence of, were used to calculate his Guideline range). http://caselaw.lp.findlaw.com/data2/circs/9th/0530607p.pdf

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 FELONY " CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. Jan. 23, 2014) (military conviction for violation of Article 92 of the Uniform Code of Military Justice, providing that official use of government computers does not include viewing pornography, does not categorically constitute a aggravated felony, because one could violate the article without necessarily being guilty of all the elements of a generic federal child pornography offense).

AGGRAVATED FELONY " CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. Jan. 23, 2014) (military conviction for violation of Article 92 of the Uniform Code of Military Justice, providing that official use of government computers does not include viewing pornography, does not categorically constitute a aggravated felony, because one could violate the article without necessarily being guilty of all the elements of a generic federal child pornography offense).

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).

AGGRAVATED FELONY - CHILD PORNOGRAPHY - SENTENCE
United States v. Kuchinski, ___ F.3d ___ (9th Cir. Nov. 27, 2006) (conviction for receipt and possession of child pornography is affirmed over claims of error regarding defendant's plea agreement and double jeopardy, but his sentence is vacated as he was sentenced in error when child pornography images in his cache files, which he neither controlled nor even knew the existence of, were used to calculate his Guideline range). http://caselaw.lp.findlaw.com/data2/circs/9th/0530607p.pdf

AGGRAVATED FELONY - CHILD PORNOGRAPHY - EX POST FACTO -- EX POST FACTO APPLICATION OF CHANGE IN DEFINITION
United States v. Stevens, __ F.3d __ (9th Cir. Sept. 13, 2006) (district court prejudicially erred by applying amended definition of "minor" -- which was changed to include a fictitious minor -- in child pornography prosecution to enhance sentence, since the modification was a substantive change and not just a clarification and to do so was prohibited under the Ex Post Facto clause). http://caselaw.lp.findlaw.com/data2/circs/9th/0530597p.pdf

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.