Criminal Defense of Immigrants

(C)  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’s age within three years of the 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. Examination of these factors arguably violates the categorical analysis test that must be applied to show that a person is deportable as an aggravated felon.[955]  It may be that the BIA felt forced to look to these factors because of the Board’s decision to adopt 18 U.S.C. § 3509(a), a non-criminal statute, as a guide.  There is no reason to examine sexual abuse of a minor cases differently from any other aggravated felony, and counsel should argue against looking beyond the elements of the statute of conviction to determine deportability.[956]

[957] “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.”  Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995 (BIA 1999).

[955] See Chapter 16, supra.

[956] See § 16.7, supra.