Aggravated Felonies

 

(A)  Definition of the Category.  Decisions by the BIA and several circuit courts have attempted to define “sexual abuse of a minor” for purposes of the aggravated felony category.  The following is a non-comprehensive summary of how the various courts define the term.

 

            Board of Immigration Appeals.  In Matter of Rodriguez-Rodriguez, the BIA considered whether the offense of indecency by exposure to a minor under the age of 17 pursuant to a Texas statute[550] was an aggravated felony as sexual abuse of a minor.  The elements of the offense did not require physical contact with the minor, but did include exposing genitals to a person under 17 with the intent to sexually gratify or arouse any person.[2]  While stating that it was not obligated to adopt a federal or state statute as defining the term, the Board stated that it would use the definition of sexual abuse at 18 U.S.C. § 3509(a)(8)[551] as a guide,[552] finding that:

 

By its common usage, “child abuse” encompasses actions or inactions that also do not require physical contact. See Blacks Law Dictionary, supra, at 239 (defining child abuse as “[a]ny form of cruelty to a child’s physical, moral or mental well-being”). We recognize also that states categorize and define sex crimes against children in many different ways and find that 18 U.S.C. § 3509(a) better captures this broad spectrum of sexually abusive behavior.

The definition set forth in 18 U.S.C. § § 2242, 2243, and 2246 is, in our view, too restrictive to encompass the numerous state crimes that can be viewed as sexual abuse and the diverse types of conduct that would fit within the term as it commonly is used.[553]

 

The court therefore found that the term “sexual abuse of a minor” includes psychological abuse inflicted through exhibition of the genitalia, even where no contact has occurred.  The court suggested that the exposure, however, had to be knowing (i.e., intentional), rather than reckless.[554]

 

In Matter of VFD,[555] the BIA again dismissed an argument to limit sexual abuse of a minor to conduct defined by 18 U.S.C. § 2243, which limited the age of the victims to those under 16 years old.  Instead, the BIA adopted as a guide 18 U.S.C. § 3509(a)(2) (relating to the protection of child witnesses), which defines a minor as anyone under 18 years old.

            First Circuit.  In United States v. Londono-Quintero,[556] the court also rejected limiting the definition of “sexual abuse of a minor” to 18 U.S.C. § 2243, et seq.  Instead the court looked to the plain meaning of the terms.  The court defined the term “sexual” as “of, pertaining to, or for sex.”[557]  The court defined “abuse” as, “to use wrongly or improperly,”[558] and “sexual abuse” as “rape, sexual assault, or sexual molestation.”[559]  However, the court stated that it was not yet ready to “settle on any particular definition . . . .”[560]  The court did not reach the question of whether physical contact was strictly necessary to constitute sexual abuse of a minor, as the court found that there had been sexual contact in the case at issue.

 

            In an earlier case, the court found that a conviction for indecent assault and battery on a child under fourteen, in violation of Massachusetts law, was aggravated felony of sexual abuse of a minor even though the statute did not require as an element intentional touching of a sexual nature.[561]  The court noted that 18 U.S.C. § 2246(3) does not require an intent to arouse, but rather it is enough to intend to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”[562]

 

            Second Circuit.  In Mugalli v. Ashcroft,[563] the court found the BIA’s use of 18 U.S.C. § 3509(a)(8) as a guide to defining sexual abuse of a minor was reasonable, and applied the same analysis to find a conviction for statutory rape to be “sexual abuse of a minor,” since that statute includes in the definition any sexual intercourse with a minor.  The court made this finding despite recognizing that the offense may have involved “a mutual passion consummated five months too soon.”[564]

 

            Third Circuit.  In Singh v. Ashcroft, [565] the court stated that it “had no quarrel” with using 18 U.S.C. § 3509(a) as a guide, but did not engage in any analysis of the definition.[566]

 

            Fifth Circuit.  In United States v. Izaguirre-Flores,[567] a case defining “sexual abuse of a minor” for the purposes of the crime of violence definition applied to the illegal re-entry sentencing guidelines, the court looked to the plain, ordinary meaning of the terms, defining “sexual” as “of, relating to, or associated with sex as a characteristic of an organic being,”[568] “abuse” as to “take unfair or undue advantage of” or “to use or treat so as to injure, hurt, or damage,”[569] and “sexual abuse” as “[a]n illegal act, esp[ecially] one performed against a minor by an adult.”[570]  The court therefore found that, regardless of any physical act, “[g]ratifying or arousing one’s own sexual desire constitutes ‘sexual abuse of a minor’ because it involves taking undue or unfair advantage of a minor and causing such minor psychological – if not physical – harm.”[571]  The court rejected the noncitizen’s argument that the offense[572] could be committed by a foot-fetishist who steals a teenage girl’s shoe, finding that the courts in North Carolina required an “overt” sexual act (i.e., one that the victim would be aware of), in order to convict.[573]

 

In United States v. Zavala-Sustaita,[574] the court analyzed the same Texas statute at issue in Matter of Rodriguez-Rodriquez.  The court chose to determine whether the best ordinary, contemporary, and common reading of the phrase encompassed the Texas offense at issue, by reading each word of the phrase in isolation.  The court defined “sexual” as “of, pertaining to, affecting, or characteristic of sex, the sexes, or the sex organs and their functions,” and “abuse” as, “inter alia, to use wrongly or improperly” or “to hurt or injure by maltreatment.”[575]  The court held that the Texas offense is “sexual” because it requires sexual arousal or gratification as its purpose, and that it is abusive because it requires exposure with knowledge of the child’s presence, therefore wrongly and improperly using and harming the minor.

 

            Sixth Circuit.  In United States v. Gonzales-Vela, the court found, without any analysis of the definition, that a conviction under a Kentucky statute for sexual contact with a person under the age of 14 was sexual abuse of a minor, although the conviction was a misdemeanor.[576]

 

            Seventh Circuit.  In Gattem v. Gonzalez,[577] the court also agreed that the BIA was reasonable in using 18 U.S.C. § 3509(a)(8) as a guide to defining “sexual abuse of a minor.”  The court found that solicitation of a sexual act (in this case offering cigarettes to a minor in exchange for sexual favor) qualified as sexual abuse of a minor, since 18 U.S.C. § 3509(a)(8) includes “the persuasion, inducement or enticement of a minor to engage in explicitly sexual activity.”[578]  Therefore, the court held that words alone were sufficient to constitute sexual abuse of a minor, since “[g]iven that minors lack the mature judgment of adults, there was a genuine risk that she might have acceded to his request and suffered any number of grave consequences that she could not have envisioned that an adult could.”[579]  In dissenting, Judge Posner rejected the applicability of 18 U.S.C. § 3509(a) as a guide, since that section is not a criminal statute, and objected to going beyond the act punished by the statute itself (solicitation) to the possible consequences of that act, stating that words alone should not be considered sexual abuse.[580]

 

            Eighth Circuit.  In Mendez-Morales v. INS, [581] the court found, without any analysis, that a conviction for sexual assault of a 13-year-old qualified as sexual abuse of a minor.

 

            Ninth Circuit.  In United States v. Baron-Medina, the court defined sexual abuse of a minor “‘employing the ordinary, contemporary, and common meaning of the words that Congress used’ . . . .”[582]  The court found that a California conviction for lewd act with a child under 14,[583] qualified as “sexual abuse of a minor” even though the statute required no touching to convict and included even “innocent” appearing touching that was “innocently and warmly received” if it was effected with lewd intent.  The court found that “[t]he use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order.”[584]

 

            In United States v. Pallares-Galan,[585] the court defined “abuse” as “misuse . . . to use or treat so as to injure, hurt, or damage . . . to commit indecent assault on . . . the act of violating sexually . . . [and] rape or indecent assault not amounting to rape,”[586] and “sexual abuse” as “illegal sexual acts performed against a minor by a parent, guardian, relative, or acquaintance.”[587]  The court found that “‘Abuse’ requires more than improper motivation; it requires conduct that is abusive.”[588]  In essence, it required some form or harm or injury to the child before an act would be held to constitute “abuse.”  The court therefore found that an act that was merely annoying, such as solicitation of a minor or rude sexual gestures, would not qualify as “sexual abuse of a minor.”  The court found this to be true, even though the statute of conviction requires “an act objectively and unhesitatingly viewed as irritating or disturbing, prompted by an abnormal sexual interest in children.”[589]  Therefore, under the Ninth Circuit definition, mere words are not necessarily sufficient to constitute “sexual abuse”[590] and an “overt” act is not in itself sufficient, nor is sexual motivation without action[591] — there must be a sexually motivated act that results in some sort of harm, damage or injury to a minor.

 

             In the context of defining “sexual abuse of a minor” under the “crime of violence” definition in the illegal re-entry sentencing guidelines, the court in United States v. Granbois found that a conviction of “sexual contact” with a child under age 16 and at least four years younger than the perpetrator, in violation of the same federal statutes the courts have rejected as defining “sexual abuse of a minor”[592] was sexual abuse of a minor, even though it could involve behavior as minor as a 19-year-old touching a 15-year-old’s thigh through her clothing.[593] Granbois did not discuss the prior Ninth Circuit decision in United States v. Pallares-Galan. [594]

 

            Eleventh Circuit.  In United States v. Padilla-Reyes,[595] the court rejected 18 U.S.C. § 2241, et seq. as a basis for defining the term, instead applying common meaning to find that “the phrase ‘sexual abuse of a minor’ means a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.”[596]  The court found that sexual contact was not required for an offense to be considered sexual abuse of a minor.

 

            The Fourth and Tenth Circuits have yet to issue a published decision on the issue of whether a conviction qualifies as sexual abuse of a minor for purposes of the aggravated felony definition.  The Sixth and Eighth Circuits have yet to engage in any express analysis of the term.  The BIA, and the First, Second, Third and Seventh Circuit courts have expressly adopted 18 U.S.C. § 3509(a)(8) as a guiding definition of the term, but also look to the plain meaning, while the Fifth, Ninth and Eleventh Circuits have examined the common meaning of the term without reliance on 18 U.S.C. § 3509(a)(8).  Every court to explicitly address the definition of sexual abuse of a minor has rejected limiting the definition of sexual abuse of a minor to the offenses described in 18 U.S.C. § 2241, et seq.

[597] Tex. Penal Code Ann. § 21.11(a) (“A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he: (1) engages in sexual contact with the child; or  (2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.”).  See also United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000) (holding this offense to be an aggravated felony for sentencing purposes).

[550] Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999). 

[551] This statute is not a criminal statute, but concerns the rights of child victims and child witnesses.

[552] Id. at 996 (“We are not adopting this statute as a definitive standard or definition but invoke it as a guide identifying the types of crimes we would consider to be sexual abuse of a minor.”).

[553] Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. at 996 (BIA Dec. 16, 1999).

[554] Id. at 992-993.

[555] Matter of VFD, 23 I. & N. Dec. 859 (BIA Jan. 23, 2006).

[556] United States v. Londono-Quintero, 289 F.3d 147 (1st Cir. May 6, 2002).

[557] Id. at 153, quoting Random House Webster’s Unabridged Dictionary, 1755 (2d Ed. 1987).

[558] Id. at 153, quoting Random House Webster’s Unabridged Dictionary, 9 (2d Ed. 1987).

[559] Id. at 153-154, quoting Random House Webster’s Unabridged Dictionary, 1755 (2d Ed. 1987).

[560] Id. at 154.

[561] Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (analyzing Massachusetts General Laws Chapter 265 § 13B).

[562] 18 U.S.C. § 2246(3) (emphasis supplied).

[563] Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. July 10, 2001).

[564] Id. at 61.

[565] Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (statute must require a sexual act against a minor as a necessary element in order for conviction under the statute to constitute sexual abuse of a minor).

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

[567] United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005).

[568] Id. at 275, quoting Webster’s Third New International Dictionary 2082 (1986).

[569] Id. at 275, quoting Webster’s Third New International Dictionary 8 (1986).

[570] Id. at 275, quoting Black’s Law Dictionary, 10 (8th Ed. 2004).

[571] Id. at 275-276.

[572] North Carolina Gen. Stat. § 14-202.1(a)(1) (indecent liberties with a child).

[573] United States v. Izaguirre-Flores, 405 F.3d at 276.

[574] United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000).

[575] Id. at 604.

[576] United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir. 2001).

[577] Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005).

[578] Id. at 765.

[579] Id. at 766.

[580] Id. 767-768.

[581] Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997).

[582] United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999); accord, Cedano-Viera v. Ashcroft, 324 F.3d 1062 (9th Cir. 2003) (Nevada conviction of lewd act on a child, in violation of Nevada Revised Statute § 201.230(1) (1996), constituted sexual abuse of a minor and was therefore an aggravated felony justifying removal under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), depriving the court of appeals of jurisdiction to review a removal order).

[583] California Penal Code § 288(a).

[584] United States v. Baron-Medina, 187 F.3d at 1147 (9th Cir. 1999).

[585] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004).

[586] Id. at 1100, quoting Webster’s Third New International Dictionary 8 (3d Ed. 1981).

[587] Id. at 1100, quoting Black’s Law Dictionary (6th Ed.1990).

[588] Id. at 1101-1102.

[589] Id. at 1100, quoting People v. Lopez, 19 Cal.4th 282, 289, 79 Cal.Rptr.2d 195, 965 P.2d 713 (1998) (emphasis in original).

[590] Compare with Gattem v. Gonzalez, supra.

[591] Compare with United States v. Izaguirre-Flores, supra.

[592]  18 U.S.C. § 2244(a)(3).

[593] United States v. Granbois, 376 F.3d 993 (9th Cir. 2004),

[594] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004)

[595] United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001) (holding that a conviction of violating Florida Statute § 800.04 constitutes sexual abuse of a minor).

[596] Id. at 1163.