In re Pedro RODRIGUEZ-RODRIGUEZ, Respondent
File A36 636 672 - Houston
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided September 16, 1999
Interim Decision #3411
The offense of indecency with a child by exposure pursuant to section 21.11(a)(2) of the Texas Penal Code Annotated constitutes sexual abuse of a minor and is therefore an aggravated felony within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. II 1996).
Merilee Fong, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: DUNNE, Vice Chairman; SCIALABBA, Vice Chairman; HEILMAN, HURWITZ, COLE, MATHON, JONES, GRANT, and MILLER, Board Members. Dissenting Opinions: FILPPU, Board Member, joined by HOLMES, VILLAGELIU, and MOSCATO, Board Members. GUENDELSBERGER, Board Member, joined by SCHMIDT, Chairman; VACCA, and ROSENBERG, Board Members.
HEILMAN, Board Member:
The Immigration and Naturalization Service appeals a decision of an Immigration Judge dated November 18, 1997, finding that the Service failed to meet its burden of demonstrating that the respondent is removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
I. ISSUE ON APPEAL
The issue is whether the crime of which the respondent was convicted, indecency with a child by exposure pursuant to section 21.11(a)(2) of the
II. FACTS
The respondent was admitted to the United States as a lawful permanent resident in September 1982. On December 3, 1993, the respondent was convicted of indecency with a child by exposure, in violation of section 21.11(a)(2) of the Texas Penal Code Annotated, and was sentenced to 10 years’ imprisonment. The respondent was served with a Notice to Appear (Form I-862) on October 16, 1997, and charged with removability as an alien convicted of an aggravated felony.
III. SEXUAL ABUSE OF A MINOR
A. Relevant Authority
The Texas statute defining the offense of indecency with a child provides as follows:
A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child; or
(2) exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.
The Texas Penal Code Annotated also lists a separate offense of indecent exposure, which is classified as a misdemeanor.
The definition of an aggravated felony was revised to include “sexual abuse of a minor” by section 321(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627 (“IIRIRA“). Congress did not provide a definition of sexual abuse of a minor in section 101(a)(43)(A) of the Act.
B. Arguments on Appeal
In her decision, the Immigration Judge determined that the respondent‘s crime did not involve contact with a minor and therefore was not sexual abuse of a minor pursuant to section 101(a)(43)(A) of the Act. On appeal, the Service argues that the respondent‘s offense could be included within either section 101(a)(43)(A), defining sexual abuse of a minor, or section 101(a)(43)(F), defining a crime of violence. The Service contends that the term “sexual abuse of a minor” is broad enough to encompass indecency with a child by exposure.
C. Discussion
We find that the term “sexual abuse of a minor” encompasses the offense of indecency with a child by exposure under section 21.11(a)(2) of the Texas Penal Code Annotated. Because Congress did not provide a definition of the term “sexual abuse of a minor,” we begin our analysis by looking to principles of statutory construction. It is rudimentary that interpretation of the statutory language begins with the terms of the statute itself, and if those terms, on their face, constitute a plain expression of congressional intent, they must be given effect. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Where Congress’ intent is not plainly expressed, we then need to determine a reasonable interpretation of the language and fill any gap left, either implicitly or explicitly, by Congress. Id. at 843-44. The rules of statutory construction dictate that we take into account the design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Moreover, the paramount index of congressional intent is the plain meaning of the words used in the statute taken as a whole. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). The legislative purpose is presumed to be expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984).
Section 101(a)(43)(A) of the Act includes within the definition of an aggravated felony “murder, rape, or sexual abuse of a minor.” Prior to
We note further that Congress added grounds of deportability for “Crimes of Domestic Violence, Stalking, or Violation of Protection Order, Crimes Against Children.” IIRIRA § 350, 110 Stat. at 3009-586 (codified as section 237(a)(2)(E) of the Act). Section 237(a)(2)(E)(i) of the Act provides that “[a]ny alien who at any time after entry is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.” The House conference report on the IIRIRA notes that the grounds of deportability were amended
to provide that an alien convicted of crimes of domestic violence, stalking, or child abuse is deportable. The crimes of rape and sexual abuse of a minor are elsewhere classified as aggravated felonies . . . , thus making aliens convicted of those crimes deportable and ineligible for most forms of immigration benefits or relief from deportation.
H.R. Conf. Rep. No. 104-828, § 350, at 505-06 (1996). Congress’ intent, then, was to expand the definition of an aggravated felony and to provide a comprehensive statutory scheme to cover crimes against children.
In defining the term “sexual abuse of a minor,” we are not obliged to adopt a federal or state statutory provision. The Attorney General is charged with the administration and enforcement of the Act, and she has delegated to this Board the interpretation of the definition of an aggravated felony as it arises in proceedings such as these. Section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (Supp. II 1996); 8 C.F.R. § 3.1 (1999). In amending the aggravated felony definition to include sexual abuse of a minor, Congress did not use the phrase “an offense described in section” and then designate a definition found in the federal statute, as it did elsewhere in section
We recognize, however, that removal proceedings are a function of federal law. See Wilson v. INS, 43 F.3d 211 (5th Cir.), cert. denied, 516 U.S. 811 (1995), and cases cited therein. In determining whether a specific offense falls within a classification described in deportation or removal provisions in the Act, we have looked to a federal definition. See Matter of L-G-, 21 I&N Dec. 89 (BIA 1995) (using a federal definition to determine whether a crime is a felony within the meaning of
The term “sexual abuse of a child” is defined in
We find the definition of sexual abuse in
We note that in including child abuse as a ground of removal in section 237(a)(2)(E)(i) of the Act, Congress likewise did not refer to a particular statutory definition, although in the same section it did designate a statutory definition for the term “crime of domestic violence.” By its common usage, “child abuse” encompasses actions or inactions that also do not require physical contact. See Blacks Law Dictionary, supra, at 239 (defining child abuse as “[a]ny form of cruelty to a child‘s physical, moral or mental well-being“). We recognize also that states categorize and define sex crimes against children in many different ways and find that
That definition is also not consistent with Congress’ intent to remove aliens who are sexually abusive toward children and to bar them from any relief. Congress did not direct that crimes of sexual abuse be limited to crimes requiring contact as an element, and we do not interpret the term in that manner. Because Congress intended to provide in the Act a comprehensive scheme to cover crimes against children, we view the definition found at
Turning to the conviction at issue, we note that the crime of indecency with a child by exposure under section 21.11(a)(2) of the Texas Penal Code Annotated requires a high degree of mental culpability. The perpetrator must act both with the knowledge that he is exposing himself to a child and with the intent to arouse. There is, however, an affirmative defense for perpetrators whose age is within 3 years of the age of the child and who do not use force or duress. The severity of the penalty for a conviction under the statute demonstrates that Texas considers the crime to be serious. This respondent received the maximum sentence of 10 years’ imprisonment. In consideration of these factors, we find that indecent exposure in the presence of a child by one intent on sexual arousal is clearly sexual abuse of a minor within the meaning of section 101(a)(43)(A) of the Act.
The Service also argues that the offense of indecency with a child by exposure satisfies the definition of a crime of violence and is therefore an aggravated felony under section 101(a)(43)(F) of the Act. Because we find that the crime falls within the definition of sexual abuse of a minor under section 101(a)(43)(A) of the Act, we need not reach this issue. Accordingly, the Service‘s appeal will be sustained.
V. CONCLUSION
ORDER: The appeal of the Immigration and Naturalization Service is sustained.
FURTHER ORDER: The Immigration Judge‘s decision is vacated, and the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
In re Pedro RODRIGUEZ-RODRIGUEZ, Respondent
File A36 636 672 - Houston
Board of Immigration Appeals
Interim Decision #3411
I respectfully dissent.
The respondent, a lawful permanent resident since 1982, was sentenced to a maximum 10 years’ imprisonment for his 1993 Texas conviction of indecency with a child by exposure. The record of conviction discloses very little about the respondent‘s actual criminal conduct, although it is not unreasonable to assume that the sentencing court believed the conduct to be serious in light of the 10-year sentence.
The question before us, however, is not the seriousness of the conduct. It is whether the respondent has been convicted of an aggravated felony and thus is subject to removal under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
Congress, moreover, has not specifically directed us to employ any particular federal statute in construing the meaning or scope of the phrase “sex-
I agree that an examination of relevant federal criminal law is important in our application of this phrase. The absence of a specific cross-reference to a federal statute, however, suggests that Congress may also have wanted us to take into account the various approaches the states have adopted in dealing with sexual crimes committed against minors. This is the first time we are addressing the meaning of this phrase in the context of a decision designated as a precedent. Given this overall context, I am uncomfortable adopting today either of the two definitive positions offered by the majority and by the dissenting opinion of Board Member Guendelsberger.
In addition, I would prefer to be addressing actual cases before declaring that convictions under certain portions of the competing statutory provisions necessarily amount to sexual abuse of a minor under the majority‘s approach, or fall outside that category under the dissent‘s approach. For example, I understand that the use of a child to assist another in the lascivious exhibition of the pubic area of an animal necessarily amounts to an aggravated felony under the majority‘s interpretation. See
I do not find that we are necessarily constrained to adopt one or the other of these approaches in its entirety. I would look to both sets of provisions for guidance, but not be constrained by the precise terms of either. Congress, it appears, has left us much room to define the contours of what amounts to the “sexual abuse of a minor.” I am ill at ease providing a comprehensive answer in our first effort to grapple with the question.
The record of conviction in this case charged that the respondent did “knowingly and intentionally expose his genitals to . . . a child younger than 17 years and not then and there the spouse of the defendant, knowing that the complainant was present, with intent to arouse and gratify the sexual desire of the defendant.” The indictment tracked section 21.11(a)(2) of the Texas Penal Code Annotated, indecency with a child, which makes it a felony if a person “with a child younger than 17 years and not his spouse, . . . exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person.”
I find this to be a difficult case in many respects. Nevertheless, in the absence of some additional aggravating statutory factor, such as the sexual contact required in section 21.11(a)(1) of the Texas Penal Code Annotated, I agree with the Immigration Judge‘s conclusion that section 21.11(a)(2) should not be found to describe “sexual abuse of a minor.” Accordingly, I would dismiss the appeal.
In re Pedro RODRIGUEZ-RODRIGUEZ, Respondent
File A36 636 672 - Houston
Board of Immigration Appeals
Interim Decision #3411
I respectfully dissent.
The issue in this case is whether the respondent‘s conviction for indecency with a child by exposure pursuant to section 21.11(a)(2) of the Texas Penal Code Annotated constitutes “sexual abuse of a minor” and thus is an aggravated felony pursuant to section 101(a)(43)(A) of the Immigration and Nationality Act,
In determining whether a specific offense falls within a classification described in deportation provisions under the Act, we look to a federal definition. Matter of L-G-, supra (holding that a federal definition applies in determining whether a state drug offense qualifies as a “felony” under
I disagree, however, with the majority‘s determination that the appropriate reference point in federal law for defining “sexual abuse of a minor” in this case is
The federal criminal code defines “sexual abuse of a minor” to include “knowingly engag[ing] in a sexual act” with a minor.
The federal code also criminalizes a knowing engagement in “abusive sexual contact” with a minor. See
Alabama law, for example, closely tracks the federal definition. Sexual abuse in the first degree is defined in terms of sexual contact with a child who is less than 12 years old, whereas sexual abuse in the second degree is defined in terms of sexual contact by one age 19 or older with a child between the ages of 12 and 16.
The dichotomy between sexual offenses involving explicit sexual acts or contact and noncontact offenses also is reflected in the laws of those states that use terminology other than “sexual abuse” in classifying sexual offenses. The Texas statute at issue in this case makes such a distinction. Compare
The majority selects the definition in
An important indication of the intended scope of the “sexual abuse of a minor” provision is its placement at the head of the list of offenses classified as aggravated felonies. While not all of the aggravated felony provisions of section 101(a)(43) of the Act are extremely serious crimes, the most grievous offenses, murder and rape, have been placed in subparagraph (A). The decision by Congress to place “sexual abuse of a minor” in section 101(a)(43)(A), alongside murder and rape, suggests that it was focusing on the most egregious offenses. Offenses involving sexual touching of, or contact with, a minor fit into this category. Lesser offenses, such as indecent exposure, do not have the same gravity as murder, rape, and sexual contact with a child.
The intended scope of “sexual abuse of a minor” in section 101(a)(43)(A) must also be assessed in light of the coverage of the other aggravated felony categories. Offenses involving child pornography, for example, are specifically designated as aggravated felonies by section 101(a)(43)(I) of the Act. These offenses include the employment or use of minors to engage in pornography or the knowing receipt or distribution of child pornography. See
A further indication of the intended scope of the term “sexual abuse of a minor” is that at the same time Congress added this ground as an aggravated felony, it enacted a new ground of removal pertaining to crimes against children, which covers any “crime of child abuse, child neglect, or child abandonment.” See IIRIRA § 350, 110 Stat. at 3009-639 (codified at section 237(a)(2)(E) of the Act,
The legislative history of the IIRIRA also contains compelling evidence that Congress understood the term “sexual abuse of a minor” to include only the most serious categories of sexual offenses. The House version of the IIRIRA listed “child sexual abuse” among the offenses included in a proposed new section 241(a)(2)(E) of the Act. See H.R. 2202, 104th Cong. § 218 (1996). The House bill also proposed the addition of a new subparagraph to the criminal grounds for deportation (now removal) at section 241(a)(2)(F), entitled “Crimes of Sexual Violence,” which was to provide as follows:
Any alien who at any time after entry is convicted of a crime of rape, aggravated sodomy, aggravated sexual abuse, sexual abuse, abusive sexual contact, or other crime of sexual violence is deportable.
Id. (emphasis added). Notably, proposed section 241(a)(2)(F) categorized “sexual abuse” as an offense involving violence or the threat of violence. It stands to reason that “child sexual abuse,” as then contained in proposed section 241(a)(2)(E) of the Act, also was directed to crimes involving sexual violence.
Instead of enacting a removal ground at section 241(a)(2)(F) of the Act, though, the House recognized that such serious offenses were already covered by various provisions in the aggravated felony definition contained in the Senate version of the bill and deferred to the Senate version. See H.R. Conf. Rep. No. 104-828, at 494-95, 505-06 (1996), reprinted in 1996 U.S.C.C.A.N. 546, 627, 639-40. At the same time that proposed section 241(a)(2)(F) was deleted from the House version of the bill, the “child sexual abuse” provision was removed from what is now section 237(a)(2)(E) of the Act.
Sexual offenses involving minors cover a wide range of activity, including rape, sodomy, masturbation, and other forms of explicit sexual activity, indecent exposure, production of child pornography, as well as other forms of sexual exploitation of children. As the legislative history indicates, Congress was aware of the wide range of offenses constituting child abuse and child sexual abuse. In choosing its terms, Congress also was aware that the federal criminal law and a number of state laws employing the “sexual abuse of a minor” definition limit the range of offenses covered to those involving sexual acts or sexual contact, and do not include within their scope indecent exposure. Notably, the Model Penal Code classifies indecent exposure as a misdemeanor. See Model Penal Code § 213.5 (1974) (pro-
Given this background, had Congress intended to include indecent exposure and other noncontact offenses under the term “sexual abuse of a minor,” it would have explicitly so stated in the terms of the Act. Congress could easily have done so with an explicit reference to the definition in
Relying upon what it characterizes as a generally restrictive intent in the IIRIRA, the majority resolves doubts as to the intended scope of the provision at issue by selecting the approach that sweeps most broadly in effectuating removal and limiting relief. Such an expansive reading, the majority reasons, will best advance the general intent of Congress to remove criminal aliens. This approach, however, completely ignores the principle that ambiguities in statutory interpretation must be resolved through reasonable interpretations in favor of the alien. See Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (noting that “[w]e resolve the doubts in favor of that construction [generous to the alien] because deportation is a drastic measure and at times the equivalent of banishment or exile“). Even in a case in which a less generous reading “might find support in logic,” we should “not assume that Congress meant to trench on . . . freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Id.; see also INS v. Cardoza-Fonseca, supra, at 449 (noting the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien“); INS v. Errico, 385 U.S. 214, 225 (1966) (holding that doubts regarding the correct construction of a statute affording relief from deportation should be resolved in the alien‘s favor); Matter of Tiwari, 19 I&N Dec. 875, 881 (BIA 1989).
I agree with the dissenting opinion of Board Member Filppu insofar as it concludes that there are some types of “indecent” sexual activity, including the indecent exposure criminalized by the Texas statute, which do not amount to “sexual abuse” of a minor. I reach that conclusion, however, based on the federal criminal law definition of the term selected by Congress.3 When we have the choice of a reasonable approach to defining
The classification of a crime as an aggravated felony occasions severe consequences, barring a respondent from relief from removal without regard to equities such as lengthy residence or family ties in this country. In this case, section 101(a)(43)(A) of the Act should be construed with reference to
For the reasons stated above, the respondent‘s conviction for indecent exposure under the Texas statute is not a conviction for “sexual abuse of a minor” under section 101(a)(43)(A) of the Act. I would therefore affirm the order of the Immigration Judge and dismiss the Service‘s appeal.4
Notes
The term “sexual act” is defined as follows:
(A) contact between the penis and the vulva or the penis and the anus, . . . however slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.