Matter of Pedro Josue JIMENEZ-CEDILLO, Respondent
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided April 6, 2017
27 I&N Dec. 1 (BIA 2017)
Interim Decision #3887
(2) Sexual solicitation of a minor under
FOR RESPONDENT: Eduardo V. Gonzalez, Esquire, Salisbury, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Carrie E. Johnston, Senior Attorney
BEFORE: Board Panel: PAULEY, MULLANE, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated October 8, 2015, an Immigration Judge found the respondent removable under
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico. On February 11, 2015, he was convicted of sexual solicitation of a minor in violation of
II. ANALYSIS
On appeal, the respondent contends that his conviction for sexual solicitation of a minor under Maryland law is not for a crime involving moral turpitude. The parties agree that
A person may not, with the intent to commit a violation of . . . § 3-307 of this subtitle . . . , knowingly solicit a minor, or a law enforcement officer posing as a minor, to engage in activities that would be unlawful for the person to engage in under . . . § 3-307 of this subtitle . . . .
(Emphases added.) At the time of the respondent‘s offense,
A person may not:
(1) (i) engage in sexual contact with another without the consent of the other; and
(ii) 1. employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon;
2. suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;
3. threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or
4. commit the crime while aided and abetted by another;
(2) engage in sexual contact with another if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual;
(3) engage in sexual contact with another if the victim is under the age of 14 years, and the person performing the sexual contact is at least 4 years older than the victim;
(4) engage in a sexual act with another if the victim is 14 or 15 years old, and the person performing the sexual act is at least 21 years old; or
(5) engage in vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old.
“The term ‘moral turpitude’ generally refers to conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’” Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016) (citation omitted). “To involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state,” including specific intent, knowledge, willfulness, or recklessness. Id. at 834; see also Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.1 (A.G. 2008).
To determine whether the respondent‘s offense is a crime involving moral turpitude, we employ the categorical approach, which requires us to examine the elements of the State statute of conviction, rather than the facts underlying the respondent‘s particular violation, and to see whether those elements categorically “fit[] within the generic definition of a crime involving moral turpitude.” Matter of Silva-Trevino, 26 I&N Dec. at 831. “An element of a statute is what the ‘prosecution must prove to sustain a conviction’ and the jury must find beyond a reasonable doubt.” Matter of Kim, 26 I&N Dec. 912, 913 (BIA 2017) (quoting Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)).
When faced with a statute that does not categorically fit within the definition of a crime involving moral turpitude, we must consider whether the statute sets forth “multiple alternative elements” and is therefore divisible. Matter of Silva-Trevino, 26 I&N Dec. at 833 n.8 (quoting Mathis, 136 S. Ct. at 2249). If the statute is divisible, we may examine the record of conviction to “identify the statutory provision that the respondent was convicted of violating.” Id. at 833. We may then consider whether that “portion of the statute is a categorical match to the federal generic definition.” Larios-Reyes v. Lynch, 843 F.3d 146, 153 (4th Cir. 2016).
We conclude that the respondent‘s violation of
Further, moral turpitude inheres in all violations of
Moreover, to violate
We have yet to decide whether sexual crimes that do not require a perpetrator to possess a culpable mental state with respect to the age of the victim are crimes involving moral turpitude. See Matter of Silva-Trevino, 26 I&N Dec. at 834 n.9 (reserving the question whether statutory rape offenses that “do not require a perpetrator to have knowledge of the age of the victim . . . are crimes involving moral turpitude”). While we held in Matter of Silva-Trevino that moral turpitude was inherent in a sexual offense against a minor if an alien knew or should have known that the
The United States Court of Appeals for the Fourth Circuit, in whose jurisdiction this case arises, has not directly addressed this issue. However, we find instructive the Third Circuit‘s reasoning in Mehboob v. Attorney General of the U.S., 549 F.3d 272 (3d Cir. 2008), where the court concluded that indecent assault involving a minor under 16 years of age was a crime involving moral turpitude, despite the fact that a perpetrator need not have a culpable mental state regarding the victim‘s age.
The absence of a mens rea as to a particular element in the statute of conviction does not necessarily connote an absence of moral culpability on the part of the violator. Strict liability morality offenses, like indecent assault . . . , are crimes involving moral turpitude because of the community consensus that such offenses, which are enacted for the protection of the child, are inherently antisocial and depraved. . . .
Legislatures often remove mens rea elements from sex offenses on the basis of community consensus that certain conduct should not be permitted with children under a certain age. . . .
Thus, the same community consensus that obviates the need to prove knowledge of the actual age of the victim at a criminal trial also categorizes [indecent assault] as a crime involving moral turpitude.
Id. at 277 (emphases added) (footnote and citations omitted).
We therefore clarify our decision in Matter of Silva-Trevino and now hold that a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child.
Because such offenses contravene society‘s interest in protecting children from sexual exploitation, we conclude that they are reprehensible. See Matter of Olquin, 23 I&N Dec. 896, 897 (BIA 2006) (“Sexual exploitation of children is a particularly pernicious evil. It is evident beyond all doubt that any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents.”); see also Castle v. INS, 541 F.2d 1064, 1065 n.1, 1066 (4th Cir. 1976) (holding that an adult “man‘s carnal knowledge of a fifteen year old girl . . . is so basically offensive to American ethics and accepted moral standards as to constitute moral turpitude per se”). We also conclude
Further, where a statute criminalizing sexual contact with a minor necessarily involves either a particularly young victim or a significant age difference between the perpetrator and a victim under 16 years of age, the culpable mental state element for a crime involving moral turpitude is implicitly satisfied by the commission of the proscribed act. See Garnett v. State, 632 A.2d 797, 805 (Md. 1993) (adopting “the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, [and] physical injury”).
In this regard, our holding in Matter of Silva-Trevino is distinguishable. The Texas statute at issue there criminalized sexual contact between a minor who is 16 years old or younger and a perpetrator who is more than 3 years older. By contrast, under
Finally, we note that a defendant may be convicted under
It is well established that we only look to the underlying crime “to determine whether inchoate offenses, such as attempt . . . or solicitation, constitute crimes involving moral turpitude.” Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011); see also, e.g., Reyes v. Lynch, 835 F.3d 556, 560 (6th Cir. 2016) (holding that solicitation of prostitution is a crime involving
Because the respondent pled guilty under
The Immigration Judge granted the respondent voluntary departure conditioned upon the posting of a voluntary departure bond and informed him in writing of his obligation to provide the Board with timely proof that the bond had been posted. The respondent has not submitted proof that the voluntary departure bond has been paid. Accordingly, the voluntary departure period granted by the Immigration Judge will not be reinstated.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is ordered removed from the United States to Mexico pursuant to the Immigration Judge‘s alternate order of removal.