In re Jimenez-Cedillo

27 I&N Dec. 782

Matter of Pedro Josue JIMENEZ-CEDILLO, Respondent

Interim Decision #3978

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

February 27, 2020

Sexual solicitation of a minor in violation of section 3-324(b) of the Maryland Criminal Law with the intent to engage in an unlawful sexual offense under section 3-307 is categorically a crime involving moral turpitude. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), reaffirmed.

FOR RESPONDENT: Benjamin R. Winograd, Esquire, Alexandria, Virginia

FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate Legal Advisor

BEFORE: Board Panel: WENDTLAND, GREER, and O'CONNOR, Board Members.

GREER, Board Member:

This case was last before us on July 28, 2017, when we denied the respondent's motion to reconsider our April 6, 2017, precedent decision in Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), where we dismissed his appeal from an Immigration Judge's order. On March 20, 2018, the United States Court of Appeals for the Fourth Circuit remanded the case for us to further explain our reasoning for concluding that the respondent is removable under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018), as an alien convicted of a crime involving moral turpitude, and is therefore ineligible for cancellation of removal pursuant to section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2018). The record will be remanded to the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a 23-year-old native and citizen of Mexico who conceded that he is removable under section 212(a)(6)(A)(i) of the Act as an alien who is present in the United States without having been admitted or paroled. On February 11, 2015, he was convicted under section 3-324(b) of the Maryland Criminal Law upon pleading guilty to knowingly soliciting a minor, or a police officer who was posing as a minor, with the intent to engage in unlawful sexual activity in violation of section 3-307 of the Maryland Criminal Law.¹ The record of conviction reflects that in October 2014, the respondent communicated via computer and text with an undercover police officer who was posing as a 14-year-old deaf girl, and he arranged for them to meet. He was arrested on November 3, 2014, when he appeared at the meeting point with a soda, condoms, and lubricant.

In Matter of Jimenez-Cedillo, 27 I&N Dec. at 4, we held that the respondent's offense is categorically a crime involving moral turpitude. In reaching that conclusion, we examined the framework for determining whether a crime involves moral turpitude that the Attorney General set forth in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) ("Silva-Trevino I"), vacated, Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015) ("Silva-Trevino II"). We subsequently recognized the Attorney General's rule that "a crime involving intentional sexual conduct by an adult with a child involves moral turpitude as long as the perpetrator knew or should have known that the victim was a minor." Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016) ("Silva-Trevino III") (emphasis added). However, we noted that our decision there did "not reach crimes commonly known as 'statutory rape,'" which "do not require a perpetrator to have knowledge of the age of the victim," and we reserved "the question whether they are crimes involving moral turpitude." Id. at 834 n.9.

In Matter of Jimenez-Cedillo, 27 I&N Dec. at 5, we acknowledged that in Silva-Trevino III, we had agreed with the Attorney General's position, but we noted that "our decision did not foreclose the possibility that moral turpitude will inhere in some crimes, even if the relevant statute lacks an element that requires the perpetrator to have some culpable mental stateregarding the victim's age." As we will explain further, we then clarified our prior decision and held 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.

Id. We therefore determined that "moral turpitude inheres in all violations of section 3-307" of the Maryland Criminal Law, noting that "[s]ections 3-307(a)(1) and (2) necessarily involve sexual contact with a victim whose lack of consent is either explicit or implicit," and that "a defendant can be convicted under sections 3-307(a)(3), (4), and (5) even if there was a reasonable mistake as to the victim's age." Id. at 4.

The United States Court of Appeals for the Fourth Circuit concluded that we had "abandoned the Silva-Trevino rule that an offense must require proof of a culpable mental state as to the victim's age in order to qualify as a crime involving moral turpitude." Jimenez-Cedillo, 885 F.3d at 297. Finding that we put forth a new position "that mental culpability as to age is not required before a law prohibiting the sexual touching of a minor may be deemed a crime involving moral turpitude," the court remanded for us to provide a reasoned basis for that change. Id. at 298, 300. Upon our consideration on remand, we will reaffirm our decision.

Further, because the court specified that our decision represents a change in position and that our "prior policy may have 'engendered serious reliance interests' in aliens [such as the respondent,] who pled guilty to certain sexual offenses under the Silva-Trevino regime," we will apply it prospectively in this circuit. Id. at 299. See generally Matter of Cordero-Garcia, 27 I&N Dec. 652, 655-57 (BIA 2019) (discussing retroactivity). We will not decide the question of retroactivity in other circuits at this time. See Matter of J-G-, 26 I&N Dec. 161, 170 (BIA 2013) (stating that an agency is not required to make findings on issues that are unnecessary to the result reached).

II. ANALYSIS

A. Online Solicitation of Children for Sexual Contact

Sexual offenses against minors have long been considered pernicious crimes that Congress intentionally included as aggravated felonies for immigration purposes, along with murder and rape. See section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2018). The problem of online sexual predators has only existed in the last few decades, but it hasgrown exponentially, with millions of children gaining unrestricted access to the internet each year, at increasingly younger ages. See Elana T. Jacobs, Online Sexual Solicitation of Minors: An Analysis of the Average Predator, His Victims, What Is Being Done and Can Be Done To Decrease Occurrences of Victimization, 10 Cardozo Pub. L. Pol'y & Ethics J. 505, 506-07 (2012).

In response to this growing problem, every State in the country has passed a law criminalizing this behavior in some form. See, e.g., Daniel Pollack & Andrea MacIver, Understanding Sexual Grooming in Child Abuse Cases, 34 No. 11 Child L. Prac. 161, 167 n.21 (2015). In 1998, the Department of Justice created the Internet Crimes Against Children Task Force Program "to help federal, state, and local law enforcement agencies enhance their investigative responses to offenders who use the Internet, online communication systems or computer technology to exploit children." Dep't of Justice, Office of Pub. Affairs, Press Release No. 18-765, More Than 2,300 Suspected Online Child Sex Offenders Arrested During Operation "Broken Heart," https://www.justice.gov/opa/pr/more-2300-suspected-online-child-sex-offenders-arrested-during-operation-broken-heart (June 12, 2018).

Legislative responses have emerged because the damage that sexual contact does to young children and adolescents is substantial. There has been wide recognition of

the significance of the potential harm caused by sexual activity involving children, even with their consent. These risks involve potential physical harm, including the risk of venereal diseases [and] trauma . . . .

Perhaps most significantly, an adult who engages in sexual activity with a child may cause the child serious psychological damage, regardless of the child's maturity or lack of chastity. Since the adult will almost always be more physically mature and experienced in sexual matters, the risk of sexual exploitation is significant. Moreover, the effects on children of sexual exploitation often follow the child into adulthood, with societal consequences as well.

Maxwell v. State, 895 A.2d 327, 335 & n.6 (Md. Ct. Spec. App. 2006) (quoting Owens v. State, 724 A.2d 43, 52-53 (Md. 1999)).

B. Matter of Silva-Trevino

In this larger context of efforts to combat sexual harms against children, the Attorney General issued Matter of Silva-Trevino I, which involved the offense of indecency with a child. The first and second steps of the Attorney General's three-step analysis were modeled on the categorical approach andthe modified categorical approach.² Matter of Silva-Trevino I, 24 I&N Dec. at 706. The third step permitted the fact-finder to consider all available evidence, including evidence outside the record of conviction, to determine whether the alien knew or should have known the age of the victim and, therefore, whether the conviction was for conduct involving moral turpitude. Id. at 706 ("[I]t is proper to make a categorical finding that a defendant's conduct involves moral turpitude when that conduct results in conviction on the charge of intentional sexual contact with a person the defendant knew or should have known was a child.").

In proceedings on remand, the Immigration Judge considered evidence outside the record of conviction pursuant to the third step of the analysis and found that the alien's offense was a crime involving moral turpitude because he should have known that his victim was a child. See Silva-Trevino II, 26 I&N Dec....