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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 Summary: If the victim is a minor, this can be a dangerous offense. Plead to disturbing the peace, or if needed to indecent exposure. Where possible leave the record vague as to the age of the victim if the victim was under 18. Immigration counsel will have strong arguments against this having consequences even where the victim was a minor, but they may not prevail and the person will be detained during the fight. Crime Involving Moral Turpitude (CMT): Maybe. This offense committed in front of an adult ought not to be held a CMT, because recklessness about the possibility of offending a person is not a CMT. While the government might charge this as a CMT where the victim was a minor, immigration counsel at least have strong arguments against it. The only intent requirement is that the defendant was reckless as to whether a minor is present in the sense of being within viewing range, not whether it would alarm or offend the minor. Defense counsel should keep the language of the plea vague and avoid any references to the victim’s awareness of the offense or harm to the victim. Aggravated felony: Sexual Abuse of a Minor. Divisible. In Rebilas v. Mukasey, 527 F.3d 783 (9th Cir. 2008) Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. 2007), the Ninth Circuit found that a conviction for § 13-1403(B) was not categorically sexual abuse of a minor since the minor need not be aware of the conduct. The court noted that “[w]hen the minor is unaware of the offender's conduct, the minor has not been ‘abused’ as that term is commonly or generically defined, because the minor has not been physically or psychologically harmed.” Id. at 786. However, the immigration court may examine the record of conviction to determine whether the minor was aware of the conduct and therefore “abused.” Plead to the generic statutory language of the offense with no mention of the minor’s awareness of the conduct. If the record refers to the minor’s awareness, it may be better to plead to Indecent Exposure. Try to keep the age of the victim out of the factual basis and avoid a plea to (B) Other Grounds: DV/Child Abuse: The Board of Immigration Appeals has defined “child abuse” as an offense involving an “intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a person under 18 years old or that impairs such a person’s physical or mental well-being, including sexual abuse or exploitation.” Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008). If the statute does not have as an element that the victim is under 18, it still may be a deportable crime of child abuse if the reviewable record of conviction establishes this fact. To prevent (A) from being a deportable crime of child abuse, do not let the record establish that the victim was under age 18. For (B) or for (A) when the record establishes minor age, under Rebilas, supra, immigration counsel can argue that “child abuse” was not committed if the minor was unaware of the offender’s conduct. However, “child abuse” can also encompass unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health even though no proof of actual harm or injury to the child is required. See Matter of Soram, 25 I&N Dec. 378 (BIA 2010). A plea to Indecent Exposure may be safer, but if this is not possible, try to avoid a plea to (B) and keep the victim’s age and the minor’s awareness of the conduct out of the record of conviction. See Note: Domestic Violence. 23. Sexual Abuse, ARS § 13-1404 “A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast.” “Without consent” may involve force or threat of force, the victim’s incapacity by drugs, etc. or inability to understand the nature of the act, or deceit. See discussion of ARS §13-1406, infra. The mere fact of minority does not establish lack of consent. State v. Getz, 189 Ariz. 561, 564 (Ariz., 1997). "Sexual contact" means “any direct or indirect Arizona Criminal Chart with Explanatory Endnote – August 2012 35
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.” B. Sexual abuse is a class 5 felony unless the victim is under fifteen years of age in which case sexual abuse is a class 3 felony punishable pursuant to section 13-604.1 Crime Involving Moral Turpitude (CMT): Sexual touching without the consent of a victim of any age will be held a CMT. Regarding touching the breast of a person under the age of 15, the Board of Immigration Appeals held that conviction of any consensual sexual conduct with a minor is a CIMT if the defendant knew or should have known that the victim was under age 18. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). Where possible counsel should include in the record, for example on the plea form, a statement that the defendant reasonably believed that the victim was age 18 (or older). Without that finding, the IJ may conduct a factual inquiry into whether the defendant knew or should have known the victim was under age 18. Assuming that the IJ finds the defendant knew or should have known the victim was under 18 in this inquiry, immigration counsel will argue that the Silva-Trevino standard itself is unreasonable if it is interpreted to mean that even this relatively innocuous sexual conduct with a minor, which under this statute does not require lewd intent, is a CIMT. While normally the Ninth Circuit will give Chevron deference to the BIA’s determination of what conduct amounts to a CIMT, it will not do so if the decision is so unreasonable as to be impermissible. See discussion of deference and moral turpitude in Marmolejo- Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). However, this argument is likely to lose before an Arizona immigration judge and might or might not win at the Ninth Circuit, and the client probably will be detained during the appeals. While there is no guarantee, it is possible that in the future the law will change in ways that benefit a defendant with a vague record of conviction. First, the Ninth Circuit might join other circuits and decline to follow the Silva-Trevino rule that permits an IJ to inquire into the underlying facts to determine if there is a CIMT, in the face of a vague record of conviction. If that occurs, a vague record that does not state that the defendant knew or had reason to know the victim was under 18 will prevent the offense from coming within the CIMT deportation ground. Second, as discussed above, the Ninth Circuit might decline to defer to the Silva-Trevino substantive test, that even very innocuous sexual conduct with a person whom the perpetrator knows or should know is a minor is a CIMT. Other circuit courts of appeal have rejected one or both aspects of Silva-Trevino. See e.g. Jean-Louis v. AG of the United States, 582 F.3d 462 (3d Cir. 2009). Earlier the Ninth Circuit had held that even consensual sexual intercourse with a person under the age of 16 is not necessarily moral turpitude. Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007) (Calif. Penal Code § 261.5(d), which prohibits consensual intercourse between a person under the age of 16 and a person at least 21 years of age, is not categorically a crime involving moral turpitude). Again, while a defendant should raise these arguments, he or she is likely to be detained for the time until the Ninth Circuit makes a decision. Aggravated Felony: Sexual abuse of a minor. Non-consensual sexual contact with a person over the age of 15. This will not be an aggravated felony as sexual abuse of a minor as long as the record either specifies that the victim was 18 or older (but see Aggravated Felony: Crime of Violence below) or at least does not specify that the victim was under the age of 18 (conviction will not come within the aggravated felony deportation ground, but might be an aggravated felony for purposes of bars to relief from removal; see “Burden of Proof” at beginning of these annotations). If the record specifies that the victim was younger than age 18, immigration counsel can still argue that the conviction is not an aggravated felony, but this is likely to lose before Arizona immigration judges. Arizona Criminal Chart with Explanatory Endnote – August 2012 36
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