25 I. & N. Dec. 657
BIA2012Background
- Respondent charged with removal proceedings and sought asylum, withholding, and CAT protection.
- Convicted in California on Aug. 5, 2010, of possession of child pornography (two computers) with 280 days in prison and 3 years’ probation.
- Respondent admitted to ownership/download of child pornography; later claimed non-knowledge; conviction included sex-offender registration.
- Immigration Judge denied asylum (based on aggravated felony finding) but granted withholding of removal; DHS appealed.
- Board concludes possession of child pornography is an aggravated felony and a particularly serious crime, sustaining DHS appeal and remanding for CAT proceedings.
- Record remanded for consideration of protection under CAT.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether possession of child pornography is an aggravated felony | DHS: offense is described in 18 U.S.C. §2252(a)(4) | Respondent: not necessarily an aggravated felony | Yes; respondent convicted of an aggravated felony |
| Whether the crime is a particularly serious crime for withholding of removal | DHS: offense qualifies as particularly serious | Respondent: not particularly serious given mitigating factors | Yes; the crime is particularly serious |
| Impact of sentence length and lack of violence on the particularly serious crime determination | N/A or supports seriousness | Mitigating factors lessen seriousness | Mitigating factors do not control; nature of crime supports seriousness |
| Whether the record establishes respondent knowingly downloaded child pornography | N/A | Respondent claimed lack of knowledge | Record shows knowingly downloaded for personal use |
| Consequences for asylum/withholding and remand for CAT | N/A | N/A | Asylum denied; withholding denied; remanded for CAT consideration |
Key Cases Cited
- Armijo v. Mukasey, 266 F. App’x 511 (9th Cir. 2008) (conviction for possession of child pornography falls under §2252(a)(4))
- Gao v. Holder, 595 F.3d 549 (4th Cir. 2010) (proper consideration of individual facts in particularly serious crime analysis)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (case-specific, case-by-case determination of particularly serious crime)
- Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007) (balancing nature of conviction, sentence, and circumstances)
- Matter of L-S-, 22 I&N Dec. 645 (BIA 1999) (individual facts may be considered in particularly serious crime)
- Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996) (agency precedent on particular serious crime)
- Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010) (permissible to rely on respondent testimony in analysis)
- United States v. Daniels, 541 F.3d 915 (9th Cir. 2008) (possession can fuel demand and harm victims)
- United States v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005) (possession not victimless; harms victims depicted)
- United States v. Stevens, 197 F.3d 1263 (9th Cir. 1999) (circulation of child pornography harms victims)