Unit 5: Crimes Against the Person (cont ’ d)

1. Unit 5: Crimes Against the Person (cont’d) Domestic Violence, Crimes Against Children, & Sex Abuse of a Minor

2. 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 abuse…neglect…or abandonment”or • Court finding of violation domestic violence protection order

3. 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)

4. 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 can’t be CODV)

5. 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.

6. 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)

7. 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).

8. 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).

9. 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

10. 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.

11. 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.

12. 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.

13. 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 Black’s definition of child abuse: any form of cruelty to a child’s 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).

14. 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).

15. 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 ofSmall, 23 I&N Dec. 448 (BIA 2002); Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001); Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001).

16. SAM - BIA Standard • Matter of Rodriguez-Rodriguez, 22 I&N 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)

17. 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).

18. 18 USC 3509 Defines‘sexual 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.”

19. SAM – Compare Circuit case law “Neither the agency’s 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).

20. SAM – 3d Circuit • “[W]e have no quarrel with this approach . . . .”Singh v. Ashcroft, 383 F.3d 144, 153(3d Cir. 2004) (dicta).

21. SAM - 7th Circuit “We find the BIA’s definition of sexual abuse of a minor to be a reasonable construction.”Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001)

22. 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)).

23. 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

24. 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

25. 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

26. 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) “[T]he 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’”

27. SAM - Scope of Record • Will court look beyond record to determine age? • CompareSingh v. Ashcroft, 383 F.3d 144(3d Cir. 2004) (refusing to look at sentencing order, which indicated victim’s name where statute silent as to age) with Espinoza-Franco v. Ashcroft,394 F.3d 461, 465(7th Cir. 2005)(“[W]e 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).

28. 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)

29. 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

30. 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)

31. 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)

32. 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 “induc[ing] . . . or encourag[ing] 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).

33. 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

34. 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/cfelony rape, “whatever the methodology of the offender[,] appears to us to fall above the line”

35. Possible SAM Solutions • Crime that doesn’t have age as an element (won’t work in 7th Circuit) • Make sure record of conviction is clean and doesn’t 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)

36. Possible SAM Solutions 2 • Sexual battery • Record of conviction can’t supply element of age or sex intent where not in statute • Must have sentence < 1year to avoid COV/obstruction of justice AF • False Imprisonment • Must have sentence < 1year to avoid COV AF