Introduction: Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017)

On April 6, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017) [PDF version].

In its decision, the Board held that a sexual offense in violation of a statute intended to protect children but that does not require a culpable mental state as to the age of the child is nevertheless a crime involving moral turpitude (CIMT) under either of two circumstances. The first is if the victim is particularly young, that is, under the age of 14. The second circumstance is if the victim is under the age of 16 and the age differential between the perpetrator and the victim is significant. Alternatively, both of these circumstances may apply and render the conviction a CIMT. The significance of this decision is its treatment of statutory rape statutes, which do not require proof that the perpetrator engaged in the criminal conduct with knowledge of the age of the victim.

Based on its decision, the Board held that sexual solicitation of a minor under section 3-324(b) of the Maryland Criminal Law, committed with the intent to engage in an unlawful sexual offense in violation of section 3-307, is categorically a CIMT.

Notably, the Board thereby clarified its 2016 published decision in the Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) [PDF version]. Please see our full article on our discussion of the Matter of Silva-Trevino regarding when a sexual offense against a minor is a CIMT [see article].

Factual and Procedural History: 27 I&N Dec. at 1-2

The respondent, a native and citizen of Mexico, was convicted in 2015 of sexual solicitation of a minor in violation of section 3-324 of the Maryland Criminal Law. Under this conviction, he was sentenced to a term of imprisonment of 2 years, with 1 year and 6 months of the sentence suspended.

The respondent was then placed in removal proceedings after being charged as removable under section 212(a)(6)(A)(i) (being present in the United States without having been admitted or paroled) and under section 212(a)(2)(A)(i)(I) (being convicted of a CIMT). The respondent conceded that he was removable under section 212(a)(6)(A)(i) but he contested his removability under section 212(a)(2)(A)(i)(I), arguing that his conviction was not for a CIMT.

Ultimately, the Immigration Judge found the respondent to be removable both as an alien present without having been admitted or paroled and as an alien convicted of a CIMT. The Immigration Judge granted the respondent’s request for voluntary departure in conjunction with an alternate order of removal. The respondent appealed the decision to the BIA.

Relevant Statute Maryland Statutes and Issue: 27 I&N Dec. at 2-3

Before examining the Board’s reasoning and decision, we must first examine the question it was adjudicating.

First, the respondent was convicted in violation of section 3-324 of the Maryland Criminal Law. Both the respondent and the government agreed that section 3-324 is a divisible statute. That is, it set forth distinct offenses. The parties agreed that the respondent was convicted of the following provision found specifically in section 3-324(b) (section quoted by the Board):

A person may not, with the intent to commit a violation of … [section] 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 … [section] 3-307 of this subtitle.

The provision under which the respondent was convicted relies upon statutorily defined sexual activities in section 3-307 of the Maryland Criminal Law. The following is the text of section 3-307(a) at the time the respondent was convicted (section quoted by the Board):

A person may not:

    • (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 question for the Board was whether a conviction under section 3-324(b) was a categorical CIMT. That is, whether a conviction under the provision is necessarily a CIMT, or whether it would be possible for an individual to be convicted in violation of the statute for an offense that would not be a CIMT. For the reasons we will examine in the next section, the Board held that the respondent’s conviction was categorically a CIMT.

Respondent’s Argument and Definition of CIMT: 27 I&N Dec. at 3

The respondent argued that the statutes of his conviction do not require proof that the violator possess any culpable mental state regarding the age of the victim. This means that an individual could be convicted in violation of section 3-324(b) without it being proven that he or she knew the victim was under-aged, as defined in section 3-307.

The Board explained that, in accord with its decision in the Matter of Silva-Trevino, 26 I&N Dec. 826, 833, “[t]he 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.’” Citing to the same decision (26 I&N Dec. at 834), the Board explained that a CIMT requires two essential elements:

1. Reprehensible conduct; and
2. A culpable mental state.

Interpretive Approach: 27 I&N Dec. at 3-4

In order to determine whether the respondent’s conviction was for a CIMT, the Board begins with the categorical approach. That is, it would assess the requisite elements (things that must be found by a jury or admitted to in a guilty plea) for sustaining a conviction under the statute. The categorical approach precludes consideration of the particular facts underlying the respondent’s conviction. Quoting from Silva-Trevino again (26 I&N Dec. at 831), the Board stated that in conducting this analysis it must determine whether the elements of the respondent’s conviction “fit[] within the generic definition of a [CIMT].” Quoting from its decision in the Matter of Kim, 26 I&N Dec. 912, 913 (BIA 2017) [PDF version] [see article], the Board stated that “[a]n element of a statute is what the ‘prosecution must prove to sustain a conviction’ and the jury must find beyond a reasonable doubt” (quoted from Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) [see article]).

The Board then explained that, if it is “faced with a statute that does not categorically fit within the definition of a [CIMT], [it] must consider whether the statute sets forth ‘multiple alternative elements’ and is therefore divisible.” To this effect, the Board again cited to Silva-Trevino (26 I&N Dec. at 833 n.8). In the event that the statute is divisible, the Board may examine the record of conviction, i.e., the actual facts of the crime committed by the respondent, in order to identify the portion of the divisible statute under which the conviction occurred. Upon determining that, the Board may determine whether “that portion of the statute is a categorical match to the federal generic definition” (quoted from Larios-Reyes v. Lynch, 843 F.3d 146, 153 (4th Cir. 2016) [PDF version] [see section for brief discussion]).

Analyzing the Maryland Statutes: 27 I&N Dec. at 4

The Board held that the respondent’s violation of sections 3-307(a) and 3-324(b) of the Maryland Criminal laws was categorically a CIMT. Accordingly, it did not have to reach whether the statutes of conviction were divisible.

First, the Board noted that section 3-324(b) requires that the violator “knowingly solicit a minor.” The Board reasoned that this constitutes “a culpable mental state that fits within the generic definition of a [CIMT].”

Second, the Board observed that violations of all subsections of section 3-307 constitute CIMTs [see section to read the statute].

The Board explained that sections 3-307(a)(1) and (2) “necessarily involve sexual contact with a victim whose lack of consent is either explicit or implicit.” Citing to its published decisions in the Matter of Z-, 7 I&N Dec. 253, 254-55 (BIA 1956) and the Matter of M-, 2 I&N Dec. 17, 19-20 (BIA 1944), the Board held that “[i]t is well settled that such crimes are turpitudinous.”

The Board noted that in order to be found to have violated sections 3-307(a)(3), (4), or (5), the perpetrator must have engaged in an intentional sexual act or other contact with a minor victim under the age of 16. The Board held both in Silva Trevino (26 I&N Dec. at 834 & n.9) and the Matter of Guevera Alfaro, 25 I&N Dec. 417, 420-21 (BIA 2011) [PDF version] that such conduct is a CIMT if the defendant knew or should have known that the victim was under the age of 16. The Board explained, however, that an individual could be convicted of violating sections 3-307(a)(3), (4), or (5) even if he or she made a reasonable mistake as to the age of the victim. To this effect, the Board cited to the Maryland State decision in Moore v. State, 882 A.2d 256, 268 (Md. 2005) [PDF version].

The respondent disagreed, arguing that because sections 307(a)(3)-(5) do not require proof that the perpetrator had a culpable mental state with regard to the age of the victim, the prohibited offenses were not categorical CIMTs.

Clarifying Silva-Trevino: 27 I&N Dec. at 4-5

Citing again to Silva-Trevino (at 26 I&N Dec. at 834 n.9), the Board explained that it has not yet held whether moral turpitude is inherent in a sexual offense against a minor where a culpable mental state regarding the victim’s age was not an element of the offense. Additionally, the United States Court of Appeals for the Fourth Circuit — under the jurisdiction of which the Matter of Jimenez-Cedillo arose — had also not yet directly addressed the issue.

Notwithstanding that the Fourth Circuit had not directly addressed the issue, the Board explained that it found the Fourth Circuit’s reasoning in its published decision Mehboob v. Attorney General of the U.S., 549 F.3d 272 (3d Cir. 2008) [PDF version] “instructive.” The Board detailed that in Mehboob, the Fourth Circuit had “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.” In explaining its decision, the Fourth Circuit stated that the absence of a mens rea (state of mind) “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.” To this effect, the Fourth Circuit held that “[s]trict 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.” The Fourth Circuit took the position that legislatures oftentimes remove mens rea elements from sex offenses against minors “on the basis of community consensus that certain conduct should not be permitted with children under a certain age.” (See 549 U.S. F.3d 272, 277 (3d Cir. 2008).)

New Rule: 27 I&N Dec. at 5

Citing to Mehboob, the Board clarified its decision in Silva-Trevino 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.”

Explaining the Rule: 27 I&N Dec. at 5-7

The Board explained that “[b]ecause such offenses contravene society’s interest in protecting children from sexual exploitation, we conclude that they are reprehensible.” Regarding the “significant age gap” requirement where the victim is older than 14 but younger than 16, the Board cited to its precedent decision in the Matter of Esquivel-Quintana, 26 I&N Dec. 469, 475 (BIA 2015) [PDF version] [see article] [see article on Sixth Circuit decision on appeal], wherein the Board held that the generic federal offense of sexual abuse of a minor (note this case involved the aggravated felony provision found in section 101(a)(43)(A) of the INA rather than the CIMT provisions of the INA) requires a meaningful age difference between the victim and the perpetrator. The Board took the position that in committing such offenses, “the culpable mental state for a [CIMT] is implicitly satisfied by the commission of the proscribed act.”

Furthermore, the Board distinguished the facts of the instant case from Silva-Trevino. The Board explained that the Texas statute in question in Silva-Trevino “criminalized sexual contact between a minor who is 16 years old or younger and a perpetrator who is more than 3 years older.” The Board explained that section 3-307(a)(3) of the Maryland Criminal Law in the instant case criminalizes “sexual contact between a minor who is much younger (no older than 13) and the perpetrator must be at least 4 years older.” Additionally, parts (4) and (5) of section 3-307 “reach relatively older victims (under 16 years of age), [but] also require that the perpetrator be an adult who is significantly older than the victim-specifically at least 6 years older.” In short, the Maryland statute clearly meets the Board’s standard of criminalizing sexual contact with very young individuals under 14 or with individuals under 16 where there is a significant age difference between the perpetrator and the victim.

The Board noted that an individual may be convicted in violation of section 3-324(b) for knowingly soliciting a law enforcement officer who is posing as a minor. The Board explained, citing to Cf. Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 766 (7th Cir. 2005) [PDF version], that soliciting a law enforcement officer posing as a minor constitutes “an attempt to engage an actual minor in unlawful sexual activity.” Citing to its published decision in the Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011) [PDF version], the Board explained that it looks to the underlying crime “to determine whether inchoate offenses, such as attempt … or solicitation, constitute [CIMTs].”

Decision: 27 I&N Dec. at 7

The Board held that a guilty plea to section 3-324(b) of the Maryland Criminal Laws was for a categorical CIMT. Accordingly, the Board agreed with the Immigration Judge in concluding that the respondent was removable under section 212(a)(2)(A)(i)(I) of the INA as an alien convicted of a CIMT.

Conclusion

The Matter of Jimenez-Cedillo clarifies how the Board — and by effect the Immigration Courts — will approach adjudicating when a sexual offense against a minor is a CIMT. The Board makes clear that a statute need not include as an element that the perpetrator knew that the victim was a minor in order to be a CIMT. However, the Board’s decision will not necessarily render every offense proscribing sexual offenses against minors a CIMT. For example, the Board made a point of distinguishing the statute at issue in the instant case from that in Silva-Trevino.

If an alien is ever charged with a criminal offense, he or she should consult with an experienced immigration attorney for an understanding of the potential immigration consequences of a conviction or guilty plea. If an alien is placed into removal proceedings for any reason, he or she should consult with an attorney regarding possible avenues to contest the charges and/or seek relief from removal. Regarding convictions for sexual offenses against minors in the CIMT context, an attorney will assess the statute of conviction and relevant caselaw to determine if the conviction will be considered a CIMT under relevant judicial and administrative precedent.