Criminal Defense of Immigrants

(C)  Guiding Standards.  Where the BIA refuses to adopt a firm generic definition of an offense, it may sometimes at least point to a statute that may be used as a guide.  In Matter of Rodriguez-Rodriguez,[54] the BIA was faced with the task of determining whether a Texas felony conviction of indecency with a child[55] constituted an aggravated felony of sexual abuse of a minor.[56]  The minimum statutory elements of this offense could be satisfied if the perpetrator exposed himself before a child, even if there was no physical contact with the child.

                The Board held that since Congress did not refer to a particular criminal statutory definition of the term “sexual abuse of a minor,” the BIA was not obliged to adopt one either, and rejected application of the clear definition of sexual abuse of a minor contained in federal criminal law, which required physical contact between perpetrator and victim.[57]  The BIA preferred another, broader federal statutory definition of sexual abuse of a minor adopted not as the definition of a criminal offense, but in the context of offering protection to child witnesses, which did not require physical contact.[58]  Even this specific standard, however, was not adopted as the definition of the aggravated felony term: “We are not adopting this statute as a definitive standard or definition but invoke it as a guide in identifying the types of crimes we would consider to be sexual abuse of a minor.”[59]

                In this 9-8 en banc decision, four of the dissenters believed the strict federal criminal definition should be adopted, and the other four felt a case-by-case approach should be used, but that the elements established in this non-contact offense did not arise to the level necessary to amount to an aggravated felony as sexual abuse of a minor.

                If the Board declines to create a generic definition of aggravated felonies, it still must carefully consider on a case-by-case basis whether a state offense meets the generally-held definition of the offense listed in the aggravated felony statute.  In this consideration the Board should consult and cite authoritative criminal law sources. 

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

[55] Texas Penal Code § 21.11(a)(2).

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

[57] 18 U.S.C. § 2246.

[58] 18 U.S.C. § 3509(a).

[59] Matter of Rodriguez-Rodriguez, supra, 22 I. & N. Dec. at 996.