BIA Holds That Sex Offense Violating A Statute Enacted To Protect Children Is A Crime Involving Moral Turpitude (CIMT) Where the Victim Is Particularly Young – Under 14 – Or Is Under 16 And the Age Difference Between the Perpetrator And Victim Is Significant, Or Both, Even Where The Law Does Not Require A Culpable Mental State As to the Child’s Age. As Such, Sexual Solicitation Of A Minor Per Maryland Criminal Law §3-324(b) With Intent To Engage In Unlawful Sexual Conduct In Violation Of §3-§307 Is A Categorical CIMT.

On April 6, 2017, the Board of Immigration Appeals (BIA or Board) held a respondent’s offense to be a categorical crime involving moral turpitude (CIMT) where all violations of the pertinent statute involve either a very young victim (under 14) or a substantial age difference between the adult defendant and a minor victim under 16.

Respondent was convicted of Maryland Criminal Law (MCL) §3-324 (sexual solicitation of a minor) and the Immigration Judge (IJ) had found him removable as, among other grounds, one convicted of a CIMT. On appeal, he argued his conviction did not so qualify. In its initial analysis, the BIA noted that the parties agreed the law is divisible and that respondent had been convicted under §3-324(b), prohibiting knowingly soliciting a minor or law enforcement officer, posing as a minor, with intent to violate MCL §3-307, to engage in acts violative of §3-307. In turn, the Board quoted §3-307(a) in full, which criminalizes sexual conduct with another without his or her consent in a variety of circumstances, including the use of a dangerous weapon; harming or inflicting severe physical injury; threating or placing in fear of  death, harm, or severe physical injury; or, while assisted by another. The section also criminalizes sexual contact with “a mentally defective”, “mentally incapacitated” or “physically helpless” individual where the perpetrator knows or should know of the impairment; sexual contact with one under 14 and the defendant is at least 4 years older; a sex act with a 14 or 15 year-old where the perpetrator is at least 21; and, vaginal intercourse with a 14 or 15 year-old where the defendant is at least 21. Given this, the Board cited Matter of Silva-Trevino, 24 I&N Dec. 286 (BIA 2016) for the general rule that CIMTs require both reprehensible conduct and a culpable mental state. Further, the decision stated that in determining whether an offense is a CIMT, the BIA uses the categorical approach, focusing on the elements of the criminal statute rather than the facts of the particular violation; where the statute is divisible the Board examines the record of conviction to identify the exact provision violated and then considers whether that portion of the statute “is a categorical match to the federal generic definition.”

In finding respondent’s violation to be a categorical CIMT, the BIA first noted that §3-324(b) requires a knowing solicitation of a minor, a culpable mental state fitting a generic CIMT. Additionally, §3-307 involves turpitudiouos sexual contact without consent, as well as intentional sexual acts or conduct with a minor under 16, clearly CIMTs. Responding to respondent’s argument that those parts of the law that do not require a culpable mental state as to the victim’s age do not categorically define a CIMT, the opinion looked to the Third Circuit’s reasoning in Mehboob v. Attorney General of the U.S., 549 F.3d 272 (3d Cir. 2008), which held that strict liability morality offenses like indecent assault are CIMTs “because of the community consensus that such offenses, which are enacted for the protection of the child, are inherently antisocial and depraved.”

Thus, because sex offenses against minors contravene society’s interest in protecting children and any type of sexual misconduct with a child intrudes on the victim’s rights, the BIA held that a sex offense in violation of a law enacted to protect children is a CIMT where the victim is particularly young – under 14 – or is under 16 and the age difference between the perpetrator and victim is significant, or both even though the statute requires no culpable mental state as to the child’s age. The Board collaterally held that where a criminal law prohibiting sexual conduct with a minor involves either a particularly young victim or a significant age differential with the child being younger than 16, the culpable mental state for a CIMT is implicitly satisfied by the commission of the proscribed act. As a result, all parts of §3-307 categorically fit within the generic definition of a CIMT.

The BIA therefore dismissed the appeal and, upon finding respondent had not submitted proof that his voluntary departure bond had been paid as ordered by the IJ, refused to reinstate voluntary departure. Instead, it ordered respondent removed. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017).

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