(A)  Elements.  This portion of the aggravated felony definition specifically lists offenses described in the following statutes:

 

                18 U.S.C. § 2251, entitled “Sexual exploitation of children,” punishing the use of a minor to engage in any sexually explicit conduct[379] for the purpose of producing any visual depiction of that conduct,[380] as well as punishing any parent or guardian who permits or assists the minor to do so.[381] 

 

                18 U.S.C. § 2251(c)(1), punishing anyone who knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering:

 

(a)           to receive, exchange, buy, produce, display, distribute, or reproduce any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or

 

(b)           participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct.  The federal jurisdictional base requires that the person “knows or has reason to know that such notice or advertisement will be transported in interstate or foreign commerce by any means including by computer or mailed; or . . . such notice or advertisement is transported in interstate or foreign commerce by any means including by computer or mailed.”[382]

 

This penalizes someone who knowingly publishes a notice offering to distribute by computer a visual depiction of a minor engaging in sexually explicit conduct.  If an e-mail is construed as a “notice,” it is possible that sending sexually explicit images of children over the internet may be considered to be conduct that violates this statute.  There may be other defenses relating to lack of knowledge the subject was a minor, First Amendment issues, entrapment, differences in the definition of the federal and state offenses, etc., but it would be far better for the client if immigration counsel did not to have to defend against this possibility at all.

 

                18 U.S.C. § 2251A, punishing the selling or buying of children.

 

                18 U.S.C. § 2252, entitled “Certain activities relating to material involving the sexual exploitation of children,” punishing a number of offenses:

 

                Subparagraph (a)(1) penalizes anyone who knowingly transports in interstate commerce by computer or mail any visual depiction of a minor engaging in sexually explicit conduct. 

 

                Subparagraph (a)(2) penalizes anyone who knowingly receives or distributes any visual depiction of a minor engaging in sexually explicit conduct that has been mailed or transported in interstate commerce by computer or knowingly reproduces any visual depiction for distribution in interstate commerce by computer or mail.

 

                Subparagraph (a)(3)(A) penalizes knowing sale or possession for sale of any visual depiction of a minor engaging in sexually explicit conduct in U.S. territorial jurisdiction or land.

 

                Subparagraph (a)(3)(B) penalizes knowing sale or possession for sale any visual depiction of a minor engaging in sexually explicit conduct that has been mailed or transported in interstate commerce or which was produced using materials that were mailed or transported in interstate or foreign commerce by any means including computer.

 

                Subparagraph (a)(4)(A) penalizes knowing possession of “one or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction” of a minor engaging in sexually explicit conduct in U.S. territorial jurisdiction or land.

 

                Subparagraph (a)(4)(B) penalizes knowing possession of “one or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction” of a minor engaging in sexually explicit conduct that has been mailed or transported in interstate commerce or which was produced using materials that were mailed or transported in interstate or foreign commerce by any means including computer.[383]

               

                Subparagraph (b)(1) provides a 10-year maximum for a violation, attempt, or conspiracy to violate subparagraphs (a)(1)-(3).  With a prior conviction under this chapter or chapter 109A, the term is from five to 15 years.  Note that this list of the two no-substantive offenses of attempt and conspiracy gives rise to the argument that other unlisted non-substantive offenses are not included.  See Appendix G, infra.

 

                Subparagraph (b)(2) provides a five-year maximum for a violation, attempt, or conspiracy to violate (a)(4).  See Appendix G, infra.

 

                To qualify as an aggravated felony, all the elements of the statute of conviction must fall within one of these sections.[384]

 

[379] Texas Penal Code, § 43.26(a)(1) (prohibiting possession or promotion of child pornography), penalizes possession of material containing an image of a child engaging in “sexual conduct,” as opposed to “explicit sexual conduct.”  Counsel could therefore argue that the Texas statute includes more material than the federal statute.

[380] 18 U.S.C. § 2251(a).

[381] 18 U.S.C. § 2251(b).

[382] Ibid., subparagraph (2).

[383] This section has been found unconstitutional.

[384] See, e.g., Gonzalez v. Ashcroft, 369 F.Supp.2d 442 (S.D.N.Y. Apr. 29, 2005) (New York conviction for “use of a child in a sexual performance” under New York Penal Law § 263.05, did not constitute an offense relating to child pornography, and was therefore not an aggravated felony under INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I), because the statute of conviction permits convictions for a lesser degree of scienter when parents or guardians are charged with violating the statute than the federal statutes encompassed by the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of the performance, the clause regarding parents is rendered superfluous.”).

AGGRAVATED FELONY - CHILD PORNOGRAPHY
United States v. Williams, No. 06-694, 128 S.Ct. 1830 (May 19, 2008) (finding constitutional a statute criminalizing, in certain specified circumstances, the pandering or solicitation of child pornography, rejecting claims the statute was overbroad under the First Amendment and impermissibly vague under the Due Process Clause because the term "simulated sexual intercourse" might include virtual child pornography or sex between youthful-looking adult actors).

BIA

AGGRAVATED FELONY " CHILD PORNOGRAPHY
Matter of RAM, 25 I&N Dec. 657 (BIA 2012) (California conviction for possession of child pornography, under Penal Code 311.11(a) [knowingly possess or control any image or film that depicts a person under the age of 18 years engaging in or simulating sexual conduct] is an aggravated felony, since it is an offense described in 18 U.S.C. 2252, and therefore bars political asylum under INA 208(b)(2)(A)(ii), (B)(i), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(i) (2006)); see 18 U.S.C. 2252(a)(4) (2006) (punishing the knowing possession of child pornography); see also Armijo v. Mukasey, 266 F. Appx 511 (9th Cir. 2008) (holding that a conviction for possession of child pornography under section 311.11(a) of the California Penal Code is for an offense described in 18 U.S.C. 2252(a)(4)(B), which prohibits possession of visual depictions of minors engaging in sexually explicit conduct).

Ninth Circuit

AGGRAVATED FELONY " CHILD PORNOGRAPHY " POSSESSION OF CHILD PORNOGRAPHY
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct. 6, 2015) (California conviction of possession of child pornography, Penal Code 311.11(a), is broader than the relevant federal aggravated felony statutory definition, and there is a realistic probability that overbroad conduct would be prosecuted in California, and this conviction therefore is not considered to be an aggravated felony for purposes of INA 101(a)(43)(I), 237(a)(2)(A)(iii): No provision of the federal statute's definition of sexually explicit conduct can be read to encompass any touching on any part of a child's body with the intent of arousing sexual desires. California's child pornography statute thus sweeps in depictions of a broader range of sexual conduct than the federal child pornography statute encompasses. On this basis, Penal Code 311.11(a) is categorically overinclusive.).

AGGRAVATED FELONY " CHILD PORNOGRAPHY " ELEMENTS
United States v. Sheldon, __ F.3d __ (9th Cir. Apr. 9, 2014) (federal conviction for violation of 18 U.S.C. 2251(a) does not require proof that defendant had knowledge that the materials used to produce child pornography had travelled in interstate commerce).

AGGRAVATED FELONY " CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. Jan. 23, 2014) (military conviction for violation of Article 92 of the Uniform Code of Military Justice, providing that official use of government computers does not include viewing pornography, does not categorically constitute a aggravated felony, because one could violate the article without necessarily being guilty of all the elements of a generic federal child pornography offense).

AGGRAVATED FELONY " CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. Jan. 23, 2014) (military conviction for violation of Article 92 of the Uniform Code of Military Justice, providing that official use of government computers does not include viewing pornography, does not categorically constitute a aggravated felony, because one could violate the article without necessarily being guilty of all the elements of a generic federal child pornography offense).

AGGRAVATED FELONIES " CHILD PORNOGRAPHY " NO FEDERAL JURISDICTION OVER IMAGES THAT DID NOT CROSS STATE LINES
United States v. Wright, 625 F.3d 583 (9th Cir. Nov. 4, 2010) (no federal jurisdiction over an offense involving transmitted images that did not cross state lines).

AGGRAVATED FELONY - CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, ___ F.3d ___, 2009 WL 3086012 (9th Cir. Sept. 29, 2009) (court martial violation of failing to comply with lawful general order that government computers shall be for official use, and that such "authorized purposes" may not include "uses involving pornography," in violation of Article 92 of the Uniform Code of Military Justice was not categorically an aggravated felony under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I), which specifically lists as aggravated felonies an offense described in 18 U.S.C. 2252(a)(2) and (a)(4), both requiring conduct involving a visual depiction of a minor engaging in sexually explicit conduct, since it is undisputed that a conviction for violating Article 92 does not necessarily involve a depiction of a minor engaging in sexually explicit conduct).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CHILD PORNOGRAPHY
People v. Petrovic, 224 Cal.App.4th 1510, 169 Cal.Rptr.3d 648 (2d Dist. Mar. 26, 2014) (California conviction of knowingly possessing or controlling child pornography on a computer, under Penal Code 311.11(a), punished merely visiting child pornography websites, without evidence of actual possession or control of the pornography), compare United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006) (Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography).