PC 314 (1)

PC 314 (1)

Offense

Indecent exposure

Aggravated Felony (AF)

Not AF even if minor’s age in ROC,1See discussion in Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. 2012) and see § N.10 Sex Offenses. but as always, the best practice is to keep minor age out if possible.

Crime Involving Moral Turpitude (CIMT)

Yes CIMT. But see Advice for certain older convictions.
To avoid CIMT, see disturbing the peace, trespassing, loitering, public nuisance.

Other Removal Grounds

To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

Advice and Comments

AF: Good alternative to charges that are sexual abuse of a minor AF such as 288(a), or deportable crime of child abuse.

CIMT: A defendant who pled guilty to 314 between Feb. 17, 2010 and Jan. 8, 2013 may be able to avoid the conviction being classed as a CIMT. See endnote.2In Ocegueda-Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) the court held that because § 314(1) can be used to prosecute exotic dance performances that the audience wishes to see, it is not necessarily a CIMT. In Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), the BIA countered that § 314 no longer can be used to prosecute such performances and for this and other reasons, it is a CIMT. In Betansos v. Barr, 928 F.3d 1133 (9th Cir. 2019), the Ninth Circuit decided to defer Matter of Cortes Medina and withdraw from its holding in Ocegueda-Nunez, under Chevron and Brand X principles. It held that § 314 is a CIMT.

Turning to Mr. Betansos’ case, the court considered the issue of retroactive application of its decision under Montgomery Ward principles. The court noted that Mr. Betansos had pled guilty after the publication of Ocegueda-Nunez on February 17, 2010, but before the publication of Matter of Cortes Medina on January 8, 2013, and so might have relied on Ocegueda-Nunez. But because Mr. Betansos did not present evidence that he personally had relied on Ocegueda-Nunez, the court applied its new decision retroactively in his case and found his conviction was of a CIMT. “In sum, although it would have been reasonable to rely on Nunez between February 2010 and January 2013 (under Montgomery Ward factor two), Betansos has not shown that he in fact relied on Nunez (under Montgomery Ward factor three).” Betansos at *26. But the court noted that “the reliance analysis is highly fact dependent and conducted on a case-by-case basis… Although Betansos has not identified a specific reliance interest that arose for him during the period that Nunez was well-settled law, another petitioner might do so.” Id. at n. 6 (citation omitted). Defendants who pled guilty to § 314 between February 17, 2010 and January 8, 2013 who can present some evidence that they or their counsel in fact relied upon Ocegueda-Nunez may be able to avoid the conviction being a CIMT. Note that the California Chart editions from 2010 and 2011 cite Ocegueda-Nunez, but also include some warnings. See old copies of the California Chart at https://www.ilrc.org/old-outdated-charts-ca-crimes-and-their-immigration-consequences.

Adam Walsh: If V under 18, this might trigger Adam Walsh provisions; see Advice to PC 288(a).

2020-10-23T20:17:28+00:00Updated January 29th, 2020|