Criminal Defense of Immigrants

(B)  Sexual Intent.  Giving a child a spanking with intent to punish may involve contact with the buttocks, but should not be considered sexual abuse of a minor.  In United States v. Zavala-Sustaita,[965] the Fifth Circuit found that the offense of indecent exposure was sexual abuse of a minor because it requires sexual arousal or gratification as its purpose.  In Parrilla v. Gonzales,[966] the Ninth Circuit found that a conviction for communicating with a minor for immoral purposes was not necessarily an aggravated felony sexual abuse of a minor offense, since the term “immoral purpose” includes providing information on how to obtain an unlawful abortion.[967]  The Eleventh Circuit similarly requires “a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.”[968]  The BIA, in Matter of Rodriguez-Rodriguez, suggested that the actor must knowingly commit the offense.[969]

The First Circuit has suggested, on the other hand, that a sexual intent is not necessary to trigger deportation.[970]  The court noted that 18 U.S.C. § 2246 includes sexual acts and contact committed with intent to “abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”[971]  The same is true under 18 U.S.C. § 3509(a)(9).  Counsel may wish to point out that the BIA did not adopt 18 U.S.C. § 3509 as a definition, but only a guide as to what types of acts constitutes sexual abuse of a minor.

[965] United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000).

[966] Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005).

[967] Id. at 1043.

[968] United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001) (holding that a conviction of violating Florida Statute § 800.04 constitutes sexual abuse of a minor) (emphasis supplied).

[969] Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 992-993 (BIA 1999).

[970] Emile v. INS, 244 F.3d 183 (1st Cir. 2001).

[971] 18 U.S.C. § 2246(3) (emphasis supplied).