Unit 5: Crimes Against the Person (cont

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Unit 5 Crimes Against the Person (contd)

• Domestic Violence, Crimes Against Children, Sex
  Abuse of a Minor

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Domestic Violence/Crime Against Child
Deportability Ground

• Deportable, not inadmissible
• INA 237(a)(2)(E), 8 USC 1227(a)(2)(E)
• Conviction of crime of domestic violence,
  crime of stalking, or crime of child
  abuseneglector abandonment or
• Court finding of violation domestic violence
  protection order

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Domestic Violence/Crime Against
ChildDeportability Ground (2)

• Conviction or protection order violation must
  occur after 9/30/96, and after admission
• No particular sentence required
• (unlike COV AF)

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Crime of Domestic Violence (CODV)

• Two-pronged analysis
• 1. COV as defined in 18 USC 16 and
• 2. Against a person covered under a defined
  domestic relationship.
• (So, property crimes cant be CODV)

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CODV - Covered Relationships

• Current or former spouse
• Co-parent of child
• Current or former cohabitor as a spouse
• Person similarly situated to spouse under law
  of the jurisdiction of offense
• Other person protected under domestic or family
  violence laws
• ! Watch out for state/local law that protects
  broader class of persons, e.g. dating without
  cohabiting, blood relative, etc.

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CODV - Strategies

• Three Safe Havens
• (1) Avoid a COV as defined in 18 USC 16
• (2) Avoid a crime against the person
• (3) Avoid a protected person (someone who falls
  under the covered relationship)

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CODV Strategies Avoiding Covered Relationship

• Plead to offense against person who does not
  fall within covered relationships
• If such person is covered, do not identify
  relationship in record of conviction -
• ! But circuits split on whether immigration
  court may look outside ROC to determine whether
  offense was against person in covered
  relationship (e.g. 9th, 7th, 2nd).

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Compare circuit case law

• 9th Circuit held IJ erred in relying on
  testimony outside record of conviction to prove
  covered domestic relationship. Tokatly v.
  Ashcroft, 371 F.3d 613 (9th Cir. 2004).
• 7th Circuit suggested domestic relationship may
  be proved, without reference to elements of the
  state crime, by substantial evidence (presumably
  not limited to record of conviction). Flores v.
  Ashcroft, 350 F.3d 666 (7th Cir. 2003), citing
  Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000).

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CODV Strategies

• Work with prosecutor and/or complaining witness -
  Many CWs have strong interest in defendant not
  being deported
• Pre-plea, pre-admission diversion
• Expungement no
• Vacation of judgment for cause yes

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Contrast COV Aggravated Felony and CODV
Deportation Grounds

• Both COV AF and CODV deportation grounds require
  18 USC 16 crime of violence.
• For COV AF, need one-year sentence imposed.
• For CODV, need covered relationship sentence
  irrelevant.
• CODV is deportation ground only and does not bar
  most relief AF has more serious consequences.

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Crime of stalking or of child abuse, neglect or
abandonment

• Unlike CODV, these grounds do not require that
  the offense have been committed against a
  specified protected person.
• If CW is child, try to plead to an offense
  without the element of age.

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Crime of stalking or of child abuse, neglect or
abandonment

• These terms are not defined in INA.
• There are almost no published cases defining
  these terms for purposes of deportation ground.

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Child Abuse - Interpretations (1)

• The BIA has noted that by its common usage,
  child abuse encompasses actions or inactions
  that do not require physical contact.
• The BIA has also noted Blacks definition of
  child abuse any form of cruelty to a childs
  physical, moral, or mental well-being.
• In re Rodriguez-Rodriguez, 22 I. N. Dec. 991
  (BIA 1999) In re Manzano-Hernandez, 2005 WL
  698392 (BIA 2005) (unpublished).

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Child Abuse Interpretations (2)

• Eighth Circuit cited definitions of child abuse
  in Rodriguez-Rodriguez and Manzano-Hernandez to
  uphold finding that offense fell within the child
  abuse ground of deportability. Loeza-Dominguez v.
  Gonzales, 428 F.3d 1156 (8th Cir. 2005).
• Statute, entitled malicious punishment of a
  child, punished A parent, legal guardian, or
  caretaker who, by an intentional act or a series
  of intentional acts with respect to a child,
  evidences unreasonable force or cruel discipline
  that is excessive under the circumstance. Minn.
  Stat. 609.377(1).

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Sex Abuse of a Minor (SAM) Aggravated Felony

• AF categories include sexual abuse of a minor.
  8 USC 1101(a)(43)(A), INA 101(a)(43)(A)
• No sentence imposed requirement.
• Can be a misdemeanor! Matter of Small, 23 IN
  Dec. 448 (BIA 2002) Guerrero-Perez v. INS, 242
  F.3d 727 (7th Cir. 2001) Marin-Navarette, 244
  F.3d 1284 (11th Cir. 2001).

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SAM - BIA Standard

• Matter of Rodriguez-Rodriguez, 22 IN Dec.
  991 (BIA 1999)
• Found TX statute for indecent exposure to person
  under 17 is SAM
• Focused on high degree of mental culpability
  required under the TX statute (knowledge
  intent to arouse)

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SAM - BIA Approach

• Rejected adoption of basic federal sexual abuse
  statute as the standard in favor of 18 USC 3509
  (re rights of child witnesses).

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18 USC 3509

• Definessexual abuse as
• The employment, use, persuasion, inducement,
  enticement, or coercion of a child to engage in,
  or assist another person to engage in, sexually
  explicit conduct or the rape, molestation,
  prostitution, or other form of sexual
  exploitation of children, or incest with
  children.

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SAM Compare Circuit case law

• Neither the agencys reliance on 18 U.S.C.
  3509(a) . . . to determine the meaning of sexual
  abuse of a minor, nor the resulting definition,
  is unreasonable. Mugalli v. Ashcroft, 258 F.3d
  52 (2d Cir. 2001).

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SAM 3d Circuit

• We have no quarrel with this approach . . . .
  Singh v. Ashcroft, 383 F.3d 144, 153 (3d Cir.
  2004) (dicta).

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SAM - 7th Circuit

• We find the BIAs definition of sexual abuse of
  a minor to be a reasonable construction.
  Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001)

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SAM 10th Circuit

• Vargas v. DHS, ___ F.3d ___, No. 05-9581, 2006 WL
  1689293, 4 (10th Cir. June 21, 2006) (basing
  decision, without comment, on definition of
  sexual abuse of a minor at 3509(a)).

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SAM 9th Circuit

• US v. Baron-Medina, 187 F.3d 1144 (9th Cir 1999)
• Uses ordinary, contemporary and common meaning
  (not federal statute)
• Held conviction under Cal. Penal Code 288(a) is
  AF despite fact can include innocent appearing
  contact or no contact (causing child to touch
  self) w/ lewd intent

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SAM 9th Circuit (2) Baron-Medina continued

• The use of young children for the gratification
  of sexual desires constitutes an abuse
• Note that age of victim was 14 and under

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SAM 9th Circuit (3)

• U.S. v. Pallares-Galan, 359 F.3d 1088  (9th Cir.
  2003) (illegal reentry case)
• Misdemeanor conviction for annoying or molesting
  a child under 18 is not necessarily an
  aggravated felony because the statute includes
  conduct that does not constitute sexual abuse
  under ordinary meaning of the phrase

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SAM - 9th Circuit (4)Pallares-Galan continued

• Court focused on fact that statute includes
  conduct that merely annoys or irritates
  (making gestures from car, public urination)
• The California misdemeanor statute is
  intended to outlaw. . .objectively annoying
  conduct. Such conduct may involve neither harm
  or injury to a minor, nor the touching of or by a
  minor, and does not constitute sexual abuse of a
  minor

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SAM - Scope of Record

• Will court look beyond record to determine age?
• Compare Singh v. Ashcroft, 383 F.3d 144  (3d Cir.
  2004) (refusing to look at sentencing order,
  which indicated victims name where statute
  silent as to age) with Espinoza-Franco v.
  Ashcroft, 394 F.3d 461, 465 (7th Cir. 2005)
  (We have approved looking beyond the
  indictment to determine the victim's age so long
  as doing so would not require an evidentiary
  hearing.) Lara-Ruiz v. INS, 241 F.3d 934 (7th
  Cir. 2001) (affirming BIA even though source of
  age information unclear).

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Specific SAM and Rape Offenses

• Sexual Abuse of a Minor
• Lewd and Lascivious Acts Involving Children
  Cal. Penal Code 288(a) Baron-Medina see also
  US v. Efigenio, No. 05-2617 (3d Cir. May 24,
  2006) (unpublished)
• Penetration by Foreign Object Cal. Penal Code
  289(j) US v. Mendoza-Iribe, 198 F.3d 742 (9th
  Cir. 1999)

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Sample SAM and Rape Offenses 2

• Lewdness with a Child Under 14 Years Nev. Rev.
  Stat. 201.230 (1996) Cedano v. Ashcroft, 324
  F.3d 1062 (9th Cir. 2003)
• Indecency with a Child by Exposure, Tex. Penal
  Code 21.11(a)(2) Matter of Rodriguez-Rodriguez
• Sexual Abuse in the Second Degree, N.Y. Penal
  Law 130.60(2) Matter of Small

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Specific SAM and Rape Offenses 3

• Indecent assault and battery on a child under
  14 Mass. Gen Laws ch 265 13B Emile v. INS,
  244 F.3d 183 (1st Cir. 2001)
• Contact with intimate parts of a child under 16
  Conn. Gen. Statute 53-21(a)(2). Santos v.
  Gonzales,  426 F.3d 323 (2d Cir. 2005) (per
  curiam).
• Second degree sexual abuse Ken.R.S. 510.120
  U.S. v. Gonzales-Vela, 276 F.3d 763 (6th Cir.
  2001)

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Specific SAM and Rape Offenses 4

• Taking Indecent Liberties With a Child N.C.
  Gen. Stat. 14-202.1(a)(1), Bahar v. Ashcroft,
  264 F.3d 1309 (11th Cir. 2001) (requiring no
  phys. contact)
• Lewd and Lascivious Assault on a Child Fla.
  Stat. Ann. 800.04 Londono Quintero, 289 F.3d
  147 (1st Cir. 2002) U.S. v. Padilla-Reyes, 247
  F.3d 1158 (11th Cir. 2001)
• Solicitation of a sexual act ILCS 5/11-14.1(a)
  Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. 2005)
  (not partic. to minors)

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Specific SAM and Rape Offenses 5

• ! Beware cross-referenced or implicit offenses
• Contributing to the delinquency of a minor
  Colo. Rev. Stat. 18-6-701 penalizes inducing
  . . . or encouraging a child to violate any
  state or federal law, municipal or county
  ordinance, or court order.
• 10th Cir. found this to be SAM where complaint
  specified that ? encouraged child to violate
  18-3-404(1)(a), unlawful sexual contact, a
  statute not particular to minors. Vargas v. DHS,
  ___ F.3d ___, No. 05-9581, 2006 WL 1689293, 4
  (10th Cir. June 21, 2006).

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SAM - Grey Areas

• Statutory Rape (e.g., Cal. Penal Code 261.5,
  NY Penal Law 130.25-2) Mugalli v. Ashcroft,
  258 F.3d 52 (2d Cir. 2001) Toledo-Castillo v.
  Ashcroft, 2001 U.S. App. LEXIS 7296 (9th Cir.
  2001) (unpublished) United States v.
  Salas-Rivera, 2001 U.S. App. LEXIS 18931 (9th
  Cir. 2001) (unpublished)
• Argue not abuse under ordinary meaning of term
  because (1) No specific scienter requirement (2)
  small age differential between victim and
  perpetrator (3) marriage exception

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SAM Grey Areas 2

• Statutory rape may nonetheless be rape AF
  under 101(a)(43)(A)
• Rivas-Gomez v. Gonzalez, 441 F.3d 1072 (9th Cir.
  2006) (discussing ORS 163.355)
• Common contemporary meaning of rape is unlawful
  sexual activity without consent
• Minority of c/w makes statutory rape unlawful
• Conclusive statutory presumption of inability to
  consent
• Distinguishes Pallardes-Gallan b/c felony rape,
  whatever the methodology of the offender,
  appears to us to fall above the line

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Possible SAM Solutions

• Crime that doesnt have age as an element (wont
  work in 7th Circuit)
• Make sure record of conviction is clean and
  doesnt include facts that satisfy the generic
  definition
• Simple assault/battery
• Misdemeanor annoying or molesting child under 18
  e.g. Cal Penal Code 647.6 (per Pallardes-Gallan)

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Possible SAM Solutions 2

• Sexual battery
• Record of conviction cant supply element of age
  or sex intent where not in statute
• Must have sentence lt 1year to avoid
  COV/obstruction of justice AF
• False Imprisonment
• Must have sentence lt 1year to avoid COV AF