Offense
Sharing, offering to share harmful matter (images) with a minor or person believed to be a minor under age 18, with intent to arouse
(a)(1) depicting minors
(a)(2) not depicting minors
Aggravated Felony (AF)
Not AF as SAM
Not AF as child pornography. By far better to avoid this issue by pleading to (a)(2).
But (a)(1) also is not child pornography under Ninth Circuit precedent.
See Advice
Crime Involving Moral Turpitude (CIMT)
Defenders must assume it is a CIMT and seek another offense if avoiding a CIMT is critical.
Removal defense advocates can argue 288.2 is not a CIMT, comparing it to 261.5(c)
See Advice.
Other Removal Grounds
Child abuse. Not a deportable crime of child abuse because it reaches conduct where an adult poses as a child for law enforcement purposes, which the BIA held is not deportable child abuse.1Pen C § 288.2 as a crime of child abuse. It is not. The BIA held that the generic definition of a deportable crime of child abuse requires a child as the victim, not an adult posing as child. Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 794 (BIA 2020). Section 288.2 prohibits sharing harmful matter if the person “knows, should have known, or believes that another person is a minor.” See, e.g., People v. Nakai, 183 Cal. App. 4th 499 (2010) (PC 288.2 conviction where adult volunteer working with police posed online as the minor).
Advice and Comments
For citations and further discussion of the below points, see endnote.2Pen C § 288.2(a)(2) as an AF as child pornography. Section 288.2(a)(1) prohibits showing a minor harmful materials that depict minors engaging in “sexual conduct,” with the intent to arouse. Section 288.2(b) provides that the “sexual conduct” is defined at PC 311.4(d).
The Ninth Circuit held that the definition of “sexual conduct” at PC 311.4(d) does not meet the generic definition of child pornography, when it found that PC 311.11 is not an AF as child pornography. See Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015). In Chavez-Solis, the court found that under the categorical approach, PC 311.11 is not generic child pornography because it defines “sexual conduct” under 311.4(d), and that statute is overbroad: it defines sexual conduct as “any of the following” and then lists explicit acts plus any conduct defined by PC 288. The court noted that PC 288 includes a wide range of conduct not limited to explicitly sexual conduct. The court found that that § 311.4(d) is not divisible between conduct in 288 and the listed explicit conduct, and that no case examples were necessary to show a realistic probability of prosecution under Duenas-Alvarez. Chavez-Solis at 1009-1010 Therefore, no conviction under § 311.11 is child pornography. Because PC 288.2 uses the same definition at 311.4(d), it also is not child pornography.
To be safe, a noncitizen with a conviction under PC 288.2(a)(1) or 311.11 should not travel outside the United States or the Ninth Circuit states. It is possible that other circuit courts of appeals would disagree with the Chavez-Solis analysis. The BIA held that PC 311.11 is an AF as child pornography (Matter of R-A-M-, 25 I&N Dec. 657 (BIA 2012)) and likely would rule that 288.2(a)(1) is.
Pen C § 288.2 as an AF as SAM. Given that this can be consensual sharing of non-explicit material with a person a day under their 18th birthday, this should not be SAM. The Supreme Court held that PC 261.5(c), sexual intercourse with a 17-year-old who is three years younger than the adult, is not SAM. See discussion of Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017) at PC 261.5(c). This is less serious conduct.
Pen C § 288.2 as a CIMT. The minimum conduct to commit 288.2(a)(2) involves an 18-year-old sharing images of “sexual conduct” involving adults with a consenting person a day short of their 18th birthday, with the intent to cause arousal.
Advocates can argue that it should be compared to PC 261.5(c), which is not a CIMT under the Ninth Circuit or BIA standard. See PC 261.5(c) for discussion of Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007) (PC § 261.5(d), a more serious offense, is not a CIMT) and Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), reaffirmed 27 I&N Dec. 1 (BIA 2020) (sexual conduct with a minor is a CIMT if (a) the minor is under the age of 14, or (b) the minor is under the age of 16 and there is a significant age difference). Section 261.5(c) requires intercourse with a person under age 18 and three years younger than the adult. Arguably PC 288.2(a)(2) is less serious because it does not require an age difference, or any actual touching, much less intercourse.
Regarding (a)(1), depicting minors, in Matter of Olguin-Rufino, 23 I&N Dec. 896 (BIA 2006), the BIA held the Florida offense of just possessing child pornography, defined as sexually explicit images of minors, is a CIMT. Section 288.2(a)(1) has the added factor of sharing images depicting minors engaging in “sexual conduct” as defined at PC 311.4(d). Advocates can consider the following arguments that 288.2 is not a CIMT, and investigate others: (a) the Ninth Circuit does not owe deference to the BIA’s finding that conduct is a CIMT, because in Loper-Bright the Supreme Court overruled Chevron; (b) the Florida statute that the BIA considered in Olguin-Rufino required explicit sexual images of minors, while PC 288.2(a)(1) does not, per PC 311.4(d) (see Chavez-Solis, supra); (c) under the categorical approach, the question is whether a person who just turned age 18 and shared non-explicit photos of minors with a consenting person a few days younger, with the goal of arousing either of them, is a CIMT. Considering that the Supreme Court found that age 16 is the age of consent (see Esquivel-Quintana, supra), and that the Ninth Circuit has found that consensual sexual intercourse between a 17-year-old and a 20-year-old is not a CIMT, arguably 288.2 also is not.
PC 288.2 as a particularly serious crime (PSC) (bar to asylum/withholding). Immigration authorities have great discretion to decide what is a PSC, and will consider several factors including the underlying offense. The categorical approach does not wholly apply. In Matter of R-A-M-, 25 I & N Dec. 657 (BIA 2012), the BIA overruled the immigration judge and found that the person’s conviction of PC 311.11, possession of child pornography as defined at PC 311.4(d), was a PSC that barred a grant of withholding. There the facts were that the person downloaded many files of explicit pornography; did not share them; was sentenced to less than a year; and was not guilty of any violent offenses. Unless facts are far milder, assume that any PC 288.2(a)(1) will be held a PSC, and (a)(2) might also.
There are strong technical defenses that 288.2 is not an AF and perhaps not a CIMT. But best to avoid this offense, as many people do not have representation in immigration proceedings and no case directly addresses 288.2. Further, depending on the facts it could be a very strong negative factor for discretionary decisions.
If a plea to 288.2 can’t be avoided, try very hard to plead to (a)(2), not depicting minors.
Discretion, PSC. Even a misdemeanor may be a fatal negative factor for discretion – especially if the underlying facts are not the ideal scenario of 17-year-old and slightly older partner sharing photos they took of themselves, or even of a young person obnoxiously sending a photo, but instead are, e.g., an older person sending unwanted explicit materials.
Section (a)(1) is likely to be held a particularly serious crime (PSC) that bars asylum and withholding. The BIA held that a person’s conviction for PC 311.11, possession of child pornography. was a PSC. Depending on facts, (a)(2) also might be held a PSC. See endnote, above.
Alternative pleas. Options that may be better for CIMT holdings and discretion include 272, 273a(b), 370, 647.6. See also 288.3 with intent to commit 287(b)(1) (oral sex with a person under age 18). If needed, add other immigration-neutral pleas, e.g., PC 236/237, 459 1st or 2nd, or, with less than a year, PC 32 or 136.1(b)(1).
AF as SAM. Should not be an AF as SAM. The Supreme Court held that PC 261.5(c), sexual intercourse between a 17-year-old and D three years older, is not SAM, noting that age 16 is the generic definition of the age of consent. See discussion of Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017) at 261.5(c).
Arguably 288.2 is a less serious offense than 261.5(c): it can involve an 18-year-old sharing non-explicit images with a consenting 17-year-old in an effort to arouse. Unlike 261.5(c), it requires no physical touching and no three-year age difference.
AF as Child pornography. Section 288.2(a)(2) involves a depiction of adults and is not child pornography.
Section (a)(1) requires more analysis. It involves a depiction of minors engaged in “sexual conduct” as defined at PC 311.4(d). In Chavez-Solis, the Ninth Circuit held that a California child pornography statute, PC 311.11, which also defines sexual conduct under PC 311.4(d), does not meet the generic definition of child pornography because 311.4(d) includes non-explicit conduct. Because PC 288.2(a)(1) also uses the 311.4(d) definition, it too is not child pornography. See endnote; see further discussion of Chavez-Solis at 311.11.
CIMT. Defenders must assume that PC 288.2 will be charged as a CIMT. The BIA held that PC 311.11 (possessing materials described in PC 311.4(d)) is a CIMT. Removal defense advocates can argue that neither 288.2(a)(1) nor (a)(2) is a CIMT, although the vagueness of the term CIMT makes the outcome difficult to predict.