Safe Havens

(F)  Seriousness of the Offense, or Sentence.  In Rodriguez, the BIA considered several factors in determining that a Texas conviction of indecent exposure was sexual abuse of a minor.  These included the statute’s mental culpability requirement (e.g., awareness that the victim was a child), the fact that there was a defense for less egregious violations (defendant within three years of age of the victim, no duress), and the potential ten-year sentence, which showed that the state of Texas considered the offense to be serious.[1]  The BIA even considered the fact that the respondent received the maximum ten-year sentence (which is not proper in a categorical analysis unless that fact was used to identify under which elements the person was convicted).

[769] “Turning to the conviction at issue, we note that the crime . . . requires a high degree of mental culpability.  The perpetrator must act both with the knowledge that he is exposing himself to a child and with the intent to arouse.  There is, however, an affirmative defense for perpetrators whose age is within 3 years of the age of the child and who do not use force or duress.  The severity of the penalty for a conviction under the statute demonstrates that Texas considers the crime to be serious.  This respondent received the maximum sentence of 10 years imprisonment.  In consideration of these factors, we find that indecent exposure in the presence of a child by one intent on sexual arousal is clearly sexual abuse of a minor within the meaning of § 101(A)(430(A) of the Act.”  Majority opinion, Rodriguez-Rodriguez, at p. 8.