(B)  Sexual intent.  Giving a child a spanking with intent to punish may involve contact with the buttocks, but should not be considered sexual abuse of a minor.  In United States v. Zavala-Sustaita,[617] the Fifth Circuit found that the offense of indecent exposure was sexual abuse of a minor because it requires sexual arousal or gratification as its purpose.  In Parrilla v. Gonzales,[618] the Ninth Circuit found that a conviction for communicating with a minor for immoral purposes was not necessarily an aggravated felony sexual abuse of a minor offense, since the term “immoral purpose” includes providing information on how to obtain an unlawful abortion.[619]  The Eleventh Circuit similarly requires “a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.”[620]  The BIA, in Matter of Rodriguez-Rodriguez, suggested that the actor must knowingly commit the offense.[621]

 

The First Circuit has suggested, on the other hand, that a sexual intent is not necessary to trigger deportation.[622]  The court noted that 18 U.S.C. § 2246 includes sexual acts and contact committed with intent to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”[623]  The same is true under 18 U.S.C. § 3509(a)(9).  Counsel may wish to point out that the BIA did not adopt 18 U.S.C. § 3509 a definition, but only a guide as to what types of acts constitutes sexual abuse of a minor.

 

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

[618] Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005).

[619] Id. at 1043.

[620] United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001) (holding that a conviction of violating Florida Statute § 800.04 constitutes sexual abuse of a minor) (emphasis supplied).

[621] Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 992-993 (BIA 1999).

[622] Emile v. INS, 244 F.3d 183 (1st Cir. 2001).

[623] 18 U.S.C. § 2246(3) (emphasis supplied).

Tenth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONTRIBUTING TO THE DELINQUENCY OF A MINOR BY UNLAWFUL SEXUAL CONTACT
Vargas v. Dep't of Homeland Sec., ___ F.3d ___ 2006 WL 1689293 (10th Cir. Jun. 21, 2006) (Colorado conviction of contributing to the delinquency of a minor, in violation of CRS 18-6-701, may be violated by encouraging a child to violated any state law, from jaywalking to murder; since conviction under this statute requires proof, as an element of the offense, of a specified predicate offense, it was proper to look to the charging document to determine the predicate offense; violation of CRS 18-6-701 where the predicate offense was a violation of C.R.S. 18-3-404(1)(A), unlawful sexual contact with a minor, constitutes an aggravated felony). http://laws.lp.findlaw.com/10th/059581.html