Safe Havens

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.