Aggravated Felony (AF)
Not an AF: Not a COV, plus maximum sentence is less than 1-yr
Crime Involving Moral Turpitude (CIMT)
Not CIMT, but see Advice regarding ROC
Other Removal Grounds
Not a COV so not a deportable DV offense but see Advice.
To ensure not wrongly charged as a crime of child abuse, keep a minor V’s age out of the ROC. Under the categorical approach, no age-neutral offense can correctly be held child abuse even if the minor age appears in the ROC,1Deportable crime of child abuse. Conviction of a crime of child abuse, child neglect, or child abandonment is a ground of deportability under 8 USC § 1227(a)(2)(E)(i). The BIA interprets abuse, neglect, and abandonment as one category, which we will refer to as a “crime of child abuse.” To be deportable, the person must have been convicted after admission to the United States and after September 30, 1996. For further discussion of crimes of child abuse see ILRC, Case Update: Domestic Violence Deportation Ground (2018) at www.ilrc.org/crimes.
Some but not all offenses with minor age as an element are held to be deportable crimes of child abuse. For example, Pen C § 273a(a) will be charged as a deportable crime of child abuse (but immigration advocates can contest this), while the BIA has stated that § 273a(b) is not. See Matter of Mendoza Osorio, 26 I&N Dec. 703, 710 (BIA 2016). Attorney General Barr has requested amicus briefing on the issue of whether an offense such as Pen C § 261.5(c) is a crime of child abuse; see https://www.justice.gov/eoir/page/file/1215241/download
Police posing as minors. The BIA held that the generic definition of a deportable crime of child abuse under 8 USC 1227(a)(2)(E)(i) requires a child as the victim, not a police officer posing as child. See Matter of Jimenez-Cedillo, 27 I. & N. Dec. 782, 794 (BIA 2020), citing Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008) (holding that a “crime of child abuse” is an offense that “constitutes maltreatment of a child”).
Age-neutral offenses. Under the categorical approach, an age-neutral offense—e.g., battery under Pen C § 243(a)—never can be a deportable crime of child abuse. The problem is that immigration judges or officers may not know this, due to an older BIA decision that misapplied the categorical approach and held that if the record of conviction conclusively shows that the victim was under age 18, it can qualify. See Matter of Velazquez-Herrera, below. Immigration advocates should be prepared to explain the law, and criminal defenders should do their best to avoid the whole issue by keeping information about minor age out of the defendant’s record of conviction (the charge pled to, plea colloquy and written plea agreement, judgment, and any factual basis for the plea admitted by the defendant).
The explanation is: The categorical approach governs whether an offense is a deportable crime of child abuse. See, e.g., Velazquez-Herrera, 24 I&N Dec.503 (BIA 2008); Martinez-Cedillo v. Sessions, 869 F.3d 979 (9th Cir. 2018). In Velazquez-Herrera the BIA held that a simple battery statute, which had no element relating to age, was “divisible” under the categorical approach. The BIA held that if information in the record of conviction establishes that the victim was under age 18, the conviction is a deportable crime of child abuse. However, this aspect of Velazquez-Herrera has been overruled by subsequent U.S. Supreme Court decisions that discuss when a statute is “truly” divisible—rulings that the BIA has adopted. These decisions make clear that a statute is divisible only if it sets out multiple statutory alternatives that are different offenses, and the elements of at least one of these offenses matches the generic definition at issue. See discussion of Mathis v. United States, 136 S. Ct. 2243 (2016) and Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) at n.4, above, and see ILRC, How to Use the Categorical Approach Now (2018) at www.ilrc.org/crimes. Because an age-neutral statute has no element (or even statutory language) requiring minor age, it is not divisible and never can be a deportable crime of child abuse for any immigration purpose, regardless of information in the record.
Remember that to cause deportability under this ground, a conviction must be after September 30, 1996 and after the person was admitted into the United States. For further discussion of crime of child abuse see ILRC, Case Update: Domestic Violence Deportation Ground (2018) at www.ilrc.org/crimes. but a sanitized ROC clean will protect D against error.
Advice and Comments
Good immigration plea. Because minimum conduct for 241(a), 243(a) is offensive touching and the statutes are not divisible, no conviction is a COV or CIMT for any purpose.2 The minimum conduct to commit assault under Pen C § 240 and battery under Pen C § 242 is an offensive touching, which is not a crime of violence or crime involving moral turpitude. See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) (noting that the phrase “force or violence” is a term of art that does not set out alternative types of conduct; the words are synonymous and can be committed by an offensive touching).
These sections must be evaluated solely based on the minimum prosecuted conduct, because they are not divisible. Prior precedent holding such statutes to be divisible has been overturned by the Supreme Court. See n. 4, above, and see, e.g., discussion in U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (after Descamps, supra, the resisting arrest statute is no longer divisible because it is not phrased in the alternative: if minimum conduct is not a crime of violence, no conviction of the offense is a crime of violence); Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). The phrase “force or violence” is a term of art that does not set out alternative types of conduct. See, e.g., Ortega-Mendez, supra.) This also applies to 243(e).
But in case imm authorities wrongly consult the ROC instead of using the minimum conduct test, best practice is to plead to offensive touching or at least keep violence out of ROC, if possible. But this is not legally necessary to prevent a COV or CIMT.