PC 311.11(a)

PC 311.11(a)

Offense

Possess child pornography

Aggravated Felony (AF)

Ninth Cir held not an AF as child pornography. See Advice.

Crime Involving Moral Turpitude (CIMT)

Yes CIMT.1Matter of Olquin-Rufino, 23 I&N Dec. 896 (BIA 2006).

Other Removal Grounds

No other removal ground.

Advice and Comments

AF: See endnote for citations and discussion.2The definition of child pornography is subject to the categorical approach. Pornography that does not have a minor as an element is not an aggravated felony as child pornography even if the ROC shows involvement by a minor. See Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. 2014).

In Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015) the Ninth Circuit found that Pen C § 311.11 is broader than the federal definition of child pornography, because the California offense includes depiction of “sexual conduct” that includes any conduct defined in Pen C § 288. See Pen C § 311.4(d), defining sexual conduct. The court noted that § 288 involves a wide range of conduct not limited to explicitly sexual conduct. Chavez-Solis further found that § 311.4(d) is not divisible between conduct in § 288 and the other listed conduct, because a jury is not required to unanimously decide between these alternatives, and therefore no conviction under § 311.11 is child pornography in the Ninth Circuit. However, the best practice is to plead specifically to non-explicit conduct and/or to conduct “as defined in” PC § 288. Note that the BIA held that § 311.11 is an AF as child pornography (Matter of R-A-M-, 25 I&N Dec. 657 (BIA 2012)), but the Ninth Circuit opinion controls.

Ninth Cir declined to follow the BIA and found that 311.11(a) is never an AF as child pornography under the categorical approach because it is broader than the federal definition and not divisible. But best practice is(a) to plead specifically to porn that depicts non-explicit conduct or to “any lewd or lascivious sexual act as defined in Section 288,” under 311.4(d), which should work in the Ninth Circuit, or

(b) far better, to avoid this conviction if at all possible, because it might be held child porn outside the Ninth Circuit.

2020-05-19T18:26:50+00:00Updated January 29th, 2020|