quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
The Ninth Circuit held that this offense is divisible as a crime involving moral turpitude.
Nicanor-Romero v. Mukasey, 523 F.3d 992 (9 th Cir. 2008). (Note that the Court en banc later
partially overruled Nicanor-Romero to the extent that Nicanor-Romero stated in general that
moral turpitude determinations are not governed by the traditional principles of administrative
deference, including Chevron. 167 However, the application of Chevron deference not affect the
holding of Nicanor-Romero, because no administrative precedential decision addresses P.C. §
647.6(a).)
Under Matter of Silva-Trevino, if the record of conviction does not establish whether the
offense involves moral turpitude, the immigration judge may take evidence as to the actual
conduct of the defendant rather than relying on the record of conviction. The best way to prevent
this is for counsel to plead guilty specifically to violating § 647.6(a) by committing mild and
non-sexually explicit behavior, if possible without knowledge that the victim was underage. For
suggestions, see Nicanor-Romero, supra at 1000-1002. The offense involves an actus reus that
can be quite mild, including touching a shoulder, 168 combined with a broadly defined mens rea
of “abnormal sexual interest,” defined as sexual interest that would be “normal” except that it is
directed at a person under the age of 18. Ibid.
This is likely to be held divisible as a deportable crime of child abuse, depending upon
whether the record of conviction establishes that the offense actually was harmful. See
discussion of Fregozo v. Holder, 576 F.3d 1030, 1037-38 (9th Cir. 2009) at § N.9 Crimes of
Child Abuse, supra.
e. Safer Plea: an age-neutral, non-consensual sex offense where the record does
not indicate that the victim is a minor (or even where it does)
Aggravated felony. The Ninth Circuit held that a sex offense must have age as an element of
the offense in order to constitute sexual abuse of a minor. The Supreme Court indicated
167 Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9 th Cir. 2009) (en banc), discussing deference under Chevron
U.S.A. Inc., v. Natural Resources Defense Council, Inc., 104 S. Ct. 2778 (1984). This provides that a federal court
should defer to an agency interpretation of an ambiguous section of a statute that it administers in the interpretation
is reasonable and appears in an on-point, precedent opinion.
168 See Nicanor-Romero, supra at 1000-1001. “Even brief touching of a child’s shoulder qualifies as annoying
conduct under the actus reus requirement of § 647.6(a). See In re Hudson, 143 Cal. App. 4th 1, 5 (2006) (placing
hand on child’s shoulder while he played video game); see also People v. McFarland, 78 Cal. App. 4th 489, 492
(2000) (stroking child’s arm and face in laundromat). In fact, no actual touching is required. See Cal. Jur. Instr.
(Crim.) § 16.440. For example, photographing children in public places with no focus on sexual parts of the body
satisfies the actus reus element of § 647.6(a), so long as the manner of photographing is objectively “annoying.”
People v. Dunford, No. 039720, 2003 WL 1275417, at *4 (Cal. Ct. App. Mar. 19, 2003) (rejecting argument that
“the defendant’s conduct” must “be sexual” in nature). “[H]and and facial gestures” or “[w]ords alone” also satisfy
the actus reus of § 647.6(a). Pallares-Galan, 359 F.3d at 1101 (internal quotation marks and emphasis omitted).
Words need not be lewd or obscene so long as they, or the manner in which they are spoken, are objectively
irritating to someone under the age of eighteen. People v. Thompson, 206 Cal. App. 3d 459, 465 (1988). Moreover,
“[i]t is not necessary that the act[s or conduct] actually disturb or irritate the child . . . .” Cal. Jur. Instr. (Crim.) §
16.440. That is, the actus reus component of § 647.6(a) does “not necessarily require harm or injury, whether
psychological or physical.” United States v. Baza-Martinez, 464 F.3d 1010, 1015 (9th Cir. 2006). In short, §
647.6(a) is an annoying photograph away from a thought crime.”
Immigrant Legal Resource Center N-105