Communicating with a minor (D knew or had reason to believe minor age), with intent to commit certain offenses.
Aggravated Felony (AF)
Assume it is divisible: an AF if the intended offense is an AF.
If intended offense is 207(a), 288(c)(1), or sexual conduct with a person under age 18, arguably it is not SAM or a COV, to the extent that these offenses continue not to be.
Crime Involving Moral Turpitude (CIMT)
Ninth Cir held it is divisible as a CIMT, according to the intended offense combined with elements of 288.3:
-288.3 with intent to commit 207(a).
-Arguably, 288.3 with intent to engage in sexual conduct with minor under age 18.
-288.3 with intent to commit 288(c)(1).
-Likely 273a and other intended offenses.
Other Removal Grounds
Deportable child abuse. Arguably no 288.3 is a crime of child abuse. The BIA held that a crime of child abuse requires an actual child victim, not a police officer posing as a child, whereas 288.3 can involve an officer posing as a child.
Defenders should plead to communicating with the officer, or leave the record vague, but advocates have a strong argument that the offense is not divisible between officers and actual minors, and therefore that no 288.3 is a crime of child abuse.1Arguably PC 288.3 is not deportable child abuse. 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”). Section 288.3(a) includes communication with a police officer posing as a minor. People v. Korwin (2019) 36 Cal. App. 5th 682. Therefore it is overbroad compared to the definition of child abuse. Section 288.3 should not be held to be divisible between an officer and a minor, because the statute is not phrased in the alternative in that manner, which is the first requirement for a divisible statute. (See Categorical Approach Advisory for more information.)
Advice and Comments
See case citations, list of intended offenses, and further discussion here.2288.3 as a CIMT. PC 288.3 punishes a person who communicates with someone the person knows, or reasonably should know, is a minor, with an intent to commit one of the following enumerated offenses: “Section 207, 209, 261, 264.1, 273a, 286, 287, 288, 288.2, 289, 311.1, 311.2, 311.4 or 311.11, or former section 288a.” The 288.3 sentence is equal to the sentence for attempt to commit the intended offense.
In Syed v. Barr, 969 F.3d 1012, 1017-18 (9th Cir. 2020), the Ninth Circuit held that 288.3 is overbroad and divisible as a CIMT. Section 288.3 is a CIMT only if its elements, combined with the elements of the intended offense, amount to a CIMT. Syed found that because 288.3 itself requires that the person “knows, or reasonably should know” that the victim is a minor, it adds that element to the intended offense. This allowed the court to find that a conviction for PC 288.3 with intent to commit PC 288(c)(1) is a CIMT, even though PC 288(c)(1) itself was held not to be a CIMT in Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018). Syed found that the basis for the Menendez holding that 288(c)(1) is not a CIMT was that 288(c)(1) lacks a requirement that the person knew or should have known that the victim was a minor. (Arguably this oversimplifies the Menendez decision, which based its ruling on various factors. See Menendez at 472-474.) Syed found that when 288(c)(1) is coupled with 288.3, this element of guilty knowledge of age is supplied. “Read together, §§ 288.3(a) and 288 necessarily involve an ‘intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires’ of the offender or the victim child—knowing (or having reason to believe) the child is aged 15 or younger.” Syed at 1019.
Under this reasoning, 288.3 with intent to commit PC 273a is not necessarily safe. While alone 273a is not a CIMT, this is because it can involve negligence, and PC 288.3 would be held to add intent. Most other potential intended offenses already are CIMTs.
However, Syed found that if the intended offense were PC 207(a), then 288.3 would not be a CIMT because its elements plus those of 207(a) is not a CIMT. This also should apply to offenses that are similar to 261.5(c), consensual sex with a person under age 18, which is not a CIMT; such as 288.3 with intent to commit 286(b)(1), 287(b)(1), or 289(h). In fact the 288.3 plea would be better, because arguably the 288.3 could not be held a crime of child abuse (because it can include an officer posing as a child; see above endnote), while the BIA apparently has considered holding that 261.5(c) is child abuse.
Mr. Syed pled guilty to Count 2, which alleged that he violated 288.3 by communication with intent to commit PC “288,” with no allegation of 288(a), (b), or (c). The charge tracks the language of 288.3, which also lists simply “288” as an enumerated offense. That is why Syed had to reach the consequences of 288(c)(1). Syed held that because Mr. Syed specifically pled guilty to Count 2, he was convicted of those elements, despite his vague statement at the plea hearing.
288.3 as an AF. There is no ruling on this, but based on the Ninth Circuit’s finding that 288.3 is divisible as to the intended offense for CIMT purposes (in Seyd, discussed above), assume that its status as an AF will be determined by whether the intended offense, plus the added elements of intentional conduct and knowledge or reason to believe the victim is a minor, is an AF, as either SAM or as a COV with a year imposed. Of these, arguably 288.3 with intent to commit 207(a), 288(c)(1), probably 273a, 311.11, and listed offenses involving consensual sex with a person under the age of 18 (such as 286(b)(1), 287(b)(1), 289(h)) should not be an AF.
The only immigration advantages to a plea to 288.3(a) are (1) it should avoid deportability for child abuse (due to posing police officer) and (2) it likely has a shorter potential sentence than the intended offense because the sentence is the same as attempt to commit that offense:
The disadvantage is that while 288.3 takes on the character and immigration consequences of the intended offense, it also adds its own elements to that offense, which can increase the penalties. 288.3 adds the elements of:
-Knowing or having reason to believe the victim is a minor. This is why the Ninth Circuit held that 288.3 / 288(c)(1) is a CIMT, although 288(c)(1) alone is not. Consider a plea to 288(c)(1) alone, or attempt, if avoiding a CIMT is critical;
-Intentional conduct. That is why 288.3 / 273a is a likely CIMT, at least to the extent 273a avoids being a CIMT only because it is committed by negligence.
Sex with a person under the age of 18: Because 261.5(c) is not an AF or CIMT, these similar 288.3 intended offenses also should not be: 286(b)(1), 287(b)(1), 289(h).