Offense
Conduct with lewd intent with minor age 14-15 years and 10 years younger than D
Aggravated Felony (AF)
SAM. Ninth Circuit held not AF as SAM.
But if D ends up proceedings outside the Ninth Circuit, there could be a different outcome.
Not a COV.
Crime Involving Moral Turpitude (CIMT)
Unclear. Ninth Circuit held it is not a CIMT, although ICE could argue that it should be held a CIMT under BIA standards. See Advice.
Other Removal Grounds
Ninth Circuit held not a deportable crime of child abuse. See Advice.
Adam Walsh Act. This conviction can block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.
Advice and Comments
For citations and further discussion, see endnote.1AF. Section 288(c) is not a COV. The Ninth Circuit held that felony § 288(c) is a COV only under the “ordinary” case test and 18 USC § 16(b). Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013). This no longer applies because the Supreme Court struck down § 16(b) as void for vagueness in Sessions v. Dimaya. See Dimaya discussion at Pen C § 207, above.
In United States v. Castro, 607 F.3d 566 (9th Cir. 2010), the Ninth Circuit held that § 288(c) is not sexual abuse of a minor (SAM) because it is not necessarily physically or psychologically abusive. While Castro stated that a court could look to the record of conviction to evaluate this behavior, the U.S. Supreme Court since then has clarified that the standard is the minimum conduct to commit the offense. (See ILRC, How to Use the Categorical Approach Now (2021) for more information). See also U.S. v. Martinez, 786 F.3d 1227, 1229 (9th Cir. 2015) (Wash. Rev. Code § 9A.44.089 is not categorically sexual abuse of a minor).
Other removal grounds. In Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), the court held that 288(c) is categorically not a crime involving moral turpitude, a crime of child abuse, or a crime of violence.
ICE might assert that the Ninth Circuit should defer to the BIA’s definition, which is that “a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young–that is, under 14 years of age–or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child.” See Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 784 (BIA 2020), reaffirming Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA April 6, 2017). The Ninth Circuit has committed to giving Chevron deference to reasonable BIA decisions that define what conduct is a CIMT. Two responses to the BIA’s test are (1) that the sexual conduct at issue in Jimenez-Cedillo involved more explicit conduct than § 288(c); and (2) that in any event the BIA’s rule, with its lack of requirement of culpable mental state, should not apply to convictions from before April 6, 2017, when the rule was first announced in the first Jimenez-Cedillo decision. The BIA agreed to this condition in the Fourth Circuit, stating that because the Fourth Circuit “specified that our decision represents a change in position and that our “prior policy may have ‘engendered serious reliance interests’ in aliens [such as the respondent,] who pled guilty to certain sexual offenses under the Silva-Trevino regime,” we will apply it prospectively in this circuit…. We will not decide the question of retroactivity in other circuits at this time.” Jimenez-Cedillo, 27 I&N Dec. at 784. Section 288(c)(2) has no defense for lack of knowledge of age.
The Ninth Circuit has held that 288(c) is not an AF as sexual abuse of a minor (SAM), and is not a CIMT, crime of child abuse, or crime of violence. ICE might assert in future that it is a CIMT and/or crime of child abuse and if so, it’s possible the Ninth Cir would defer. See endnote above.
Other options include PC 32, 136.1(b), 236/237, 243, 243.4, 273a(b), 314, 459, 647, 647.6, etc. For the above offenses that are age-neutral, provide extra protection by sanitizing the ROC of the V’s age.
Misd might be a significant misdemeanor for DACA, but 1203.4 may help; see note at PC 25400.