In our eagerness to formulate a defense for clients in removal proceedings, attorneys often jump right into the most complex issues of the case, perhaps to our disadvantage. Sometimes the best approach involves an analysis of the basics.
Defending a noncitizen charged with an aggravated felony is a complicated and stressful undertaking. The area of aggravated felonies in immigration law can be a hodgepodge of conflicting case law which often means the outcome is determined by the jurisdiction in which you practice. Often the only course for defense is to deny the ground of removal and litigate whether the allegations constitute an aggravated felony or not.
The first of the various aggravated felonies found in section 101(a)(43) of the Immigration and Nationality Act is “murder, rape, or sexual abuse of a minor.” Apart from being an aggravated felony, it is a serious and heinous offense which describes child murders, child rapists, and child molesters. However, the reality is that ICE has not limited themselves to those just those monstrous offenses when it comes to charging noncitizens with aggravated felonies under that section. ICE has successfully brought this charge against noncitizens with convictions that have nothing to do with child murder, rape, or sexual abuse.
“Sexual abuse of a minor” has been expanded to include criminal convictions where the noncitizen used the internet to arrange a meeting with an underage person for the purpose of engaging in sexual activity, except the underage person is really an undercover police officer. It is disturbing to know that adults troll the internet looking for teenagers to have sex with. But when the noncitizen adult in question never actually had any contact with a minor, virtual or otherwise, and no actual minor was harmed by the noncitizen’s actions, should the noncitizen suffer the same immigration consequence as someone who has actually molested, raped, or murdered a child?
Congress defined certain aggravated felonies in terms of other federal statutes, such as the United States Code, the National Security Act, or the Internal Revenue Code. For example, crimes of violence under INA § 101(a)(43)(F) are defined by 18 U.S.C. § 16, and crimes related to child pornography are defined by 18 U.S.C. §§ 2251, 2251A, and 2252. The aggravated felony of murder, rape, or sexual abuse of a minor under INA § 101(a)(43)(A) is not defined in this or any other way. The statute simply states “murder, rape, or sexual abuse of a minor.”
I recently represented a legal permanent resident, we’ll call him John Smith, in removal proceedings. John was admitted as an LPR over ten years ago. In 2008 he was convicted of the offense of Online Solicitation of a Minor in violation of section 33.021(b) and (c) of the Texas Penal Code (hereafter “TPC”). The statute states in pertinent part:
(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person. Tex. Penal Code § 33.021 (b)(c)
For the sake of context, John had not left the US since his entry in the 80s, even after becoming a lawful permanent resident. He received a sentence of 180 days in jail and placed on probation. He has no prior criminal record and has been detained since his arrest for the offense. His entire family lives in the US. He is single and is incredibly remorseful for what has happened. I am confident that he will never be involved in anything like this again.
This context is important because DHS could not remove John any other way – he only has one offense and it was committed more than 5 years from admission, so the one crime involving moral turpitude ground in INA §237(a)(2)(A)(i) does not apply. His sentence was only 180 days, so he is not an aggravated felon under the crime of violence provision in INA §101(a)(43)(F) (although there may be an argument that his offense was not a crime of violence). The only way DHS could remove John was if they could somehow fit an offense that involved no sex, no abuse and no minor into the aggravated felony ground of sexual abuse of a minor.
A superficial examination of the plain language of the sexual abuse of a minor aggravated felony ground would seem to leave little room for interpretation. A person convicted of an offense involving the sexual abuse of a person, where that person is a minor, is also guilty of committing an aggravated felony under INA § 101(a)(43)(A). John’s offense, which does not involve the sexual abuse of a person, and where a minor need not be involved in any way, does not seem to fit the description of “sexual abuse of a minor.” Yet the Department of Homeland Security maintains that John’s offense is aggravated felony sexual abuse of a minor; and they have argued this expanded interpretation successfully.
Any conviction, federal or state, felony or misdemeanor, can be the basis for this ground of removability. INA § 101(a)(43)(A) does not mention a minimum punishment or reference another statute for guidance. As one can imagine, there are a wide variety of offenses across the fifty states and the federal code that punish offenses perpetrated against children. Some of these offenses can absolutely be characterized as “sexual abuse”; others are not so clear-cut. Congress did not provide a definition in the statue so the courts have done so instead.
The BIA has cited 18 U.S.C. § 3509(a)(8) as a “guide” for determining which offenses can be characterized as “sexual abuse of a minor”. Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999). 18 U.S.C. § 3509(a)(8) states that “the term ‘sexual abuse’ includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.” In the BIA case Matter of Rodriguez, the majority opinion reasons that because the term “child abuse” is generally understood to include actions or inactions which may not require physical contact, so may “sexual abuse” occur in the absence of physical contact. Id. at 996.
Matter of Rodriguez had a limited scope; it specifically addressed the issue of whether a person who exposes their genitals to someone under 17 years of age with the intent to sexually gratify or arouse any person has committed sexual abuse of a minor under INA § 101(a)(43)(A). The BIA concluded that sexual abuse of a minor includes psychological abuse inflicted through the exhibition of genitalia. Id. at 992-993. The BIA did not address what, if any, psychological abuse could be inflicted on a minor through electronic communication over the Internet.
John’s offense is not comparable with the offense at issue in Matter of Rodriguez. John was convicted of a computer crime. The noncitizen in Matter of Rodriguez was convicted of a sexual offense under Chapter 21 of the TPC. John violated a statute which is not classified as a sexual offense under Chapter 21 or as an assaultive offense under Chapter 22 of the TPC. John’s offense is not even in the same Title as other offenses against the person, but rather in Title 33 of the TPC covering offenses involving the use of computers.
In John’s case, DHS’s position is that the mere act of soliciting a minor for the purposes of engaging in sexual activity constitutes sexual abuse. In other words, if you are an adult and you do nothing more than ask a minor if they wish to have sex with you, then you have sexually abused that minor. Additionally, the means of communicating the desire to have sex with the minor is irrelevant – whether it was in person or through a message appearing on a computer screen, it is sexual abuse of a minor. Furthermore, if the person you communicated with was not even an actual minor, but merely someone pretending to be a minor (such as an undercover police officer), it is sexual abuse of a minor for aggravated felony purposes.
Due to the myriad of jurisdictions which define “minor” in different ways, the issue has arisen in removal proceedings as to who can properly be characterized as a “minor”. 18 U.S.C. § 2243(a)(1) defines a minor as someone who “has attained the age of 12 years but has not attained the age of 16 years.” Thus under this definition a 16 year old would not be a “minor”. Compare that to the offense in Matter of Rodriguez, where a minor is defined as someone under 17 years of age. According to that definition, a 16 year old would be a “minor.” It was inconsistencies such as these which prompted the BIA to define “minor” for the purposes of classifying an offense as sexual abuse of a minor under INA § 101(a)(43)(A). The BIA stated that “minor” is defined as a person under the age of eighteen. Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006).
In Matter of VFD, the BIA was dealing with the other side of the issue. In that case, the noncitizen was convicted of sexual assault. The victim of that crime was a 17 year old. The state statute under which the noncitizen was convicted defines minor as a person under the age of 17, meaning that under state law the noncitizen was not convicted of sexual assault of a minor. So, the central question in the case was that if the state did not define the victim as a minor, how could BIA? As stated above, BIA resolved this issue by defining a “minor” for sexual abuse of a minor aggravated felony purposes as a person under the age of eighteen.
So if the BIA has defined “minor” as a person under 18 years old, how is that John, who never communicated with a person under 18 years old, but rather with a police officer merely pretending to be under 18 years old, was nevertheless charged as an aggravated felon under INA § 101(a)(43)(A)? Can the government have it both ways? The answer lies in the Seventh Circuit case Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. Dec. 28, 2005).
In Hernandez-Alvarez, the noncitizen was convicted of indecent solicitation of a child in violation of 720 ILCS 5/11-6(a)2000 (an Illinois criminal statute). The Court found that this offense constituted the attempted sexual abuse of a minor aggravated felony under INA § 101(a)(43)(U), even though the person solicited was an adult police officer rather than a minor. The Seventh Circuit’s dismissed Mr. Hernandez-Alvarez’s argument that his offense could not possibly be classified as sexual abuse (or attempted sexual abuse) of a minor because the “minor” in question was in fact an adult police officer.
The Court’s reason for dismissing this argument was conclusory and not based on sound legal reasoning. In their opinion, the Court stated that the crime of attempted criminal sexual abuse under Illinois state law (which was not the crime of which Mr. Hernandez-Alvarez was convicted), and other analogous federal crimes specifically disavow the defense of impossibility. The Court then “[extended] this line of reasoning to the immigration context” in order to dismiss Mr. Hernandez-Alvarez’s argument.
The Court gives no legal reason why the fact that a person is statutorily prevented from defending themselves against state and federal criminal attempt charges by claiming that it would have been impossible for them to complete the offense attempted, means that a person is also prevented from defending themselves against classification as an aggravated felon for sexual abuse of a minor (a civil proceeding) by pointing out that there was no actual person under the age of eighteen involved in the offense. Or why the inability to raise an impossibility defense against state and federal criminal attempt charges relieves the U.S. Department of Homeland Security from establishing by clear and convincing evidence that the sexual abuse victim was indeed a minor under the age of eighteen.
Hernandez-Alvarez was the meat of DHS’s argument against John. I felt that the legal conclusions reached in that case were deeply flawed, and moreover, Hernandez-Alvarez was a Seventh Circuit case that was not binding on the Fifth Circuit where John’s removal proceedings were held. Further weakening Hernandez-Alvarez was the fact that the BIA case Matter of VFD, a precedent decision, stating that a “minor” was someone under the age of 18 for the purposes of the sexual abuse of a minor aggravated felony, was decided after Hernandez-Alvarez and was binding in John’s jurisdiction.
My strategy was to admit the allegations against John (that he was convicted of the crime of online solicitation of a minor) but to deny the ground of removability (that the conviction constituted sexual abuse of a minor). My legal arguments for denying the aggravated felony charge were based on the fundamentals of immigration aggravated felony defense: the categorical approach. When applying a formal categorical approach, a noncitizen’s conviction cannot be deemed to constitute an aggravated felony under INA § 101(a)(43) if the minimum conduct necessary to achieve conviction under the criminal statute does not fall within the description of the relevant aggravated felony.
For example, if a noncitizen is convicted of an offense which lacks as an element the use of force, then that conviction does not constitute a crime of violence under INA § 101(a)(43)(F), whose definition requires the use of force. If the criminal statute in question is divisible and some offenses may be aggravated felonies and some may not be, the modified categorical approach calls for the review of the record of conviction to determine if the noncitizen was convicted of an offense that could be classified as an aggravated felony.
In the Fifth Circuit, the formal categorical approach is used to determine whether an alien’s conviction constitutes an aggravated felony under the INA § 101(a)(43). “To determine whether an alien’s guilty plea conviction constitutes an aggravated felony for removal purposes, we apply a “categorical approach,” under which we refer only to the statutory definition of the crime for which the alien was convicted (rather than attempt to reconstruct the concrete facts of the actual criminal offense) and ask whether that legislatively-defined offense necessarily fits within the INA definition of an aggravated felony. Larin-Ulloa v. Gonzales, 462 F.3d 456, 462 (5th Cir. 2006) (emphasis added).
The statute under which John was convicted describes conduct involving a “minor.” The term “minor” as it is used in TPC § 33.021 is defined as:
(a) In this section:
(1) “Minor” means”:
(A) an individual who represents himself or herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age. Tex. Penal Code §§ 33.021(a)(1)(A) and
(B)
Although the criminal statute at issue in John’s case does mention a “minor,” the term “minor” as defined in the statute can include anyone of any age. A finding of the age of the victim is not necessary in order to obtain a conviction under the statute. Thus, one of the elements of sexual abuse of a minor as defined by Matter of VFD, that the minor be under the age of 18, cannot be met. Therefore, the statute does not constitute sexual abuse of a minor.
The formal categorical approach, when applied to the criminal statue of the Respondent’s conviction, does not invite further inquiry into the record of conviction; further analysis is superfluous. For the sake of argument, however, even if a modified categorical approach were applied (wherein the record of conviction is examined in order to determine whether the noncitizen’s conviction constitutes an aggravated felony) the result would be the same.
Under a modified categorical approach, the criminal statute of John’s conviction still cannot be classified as the sexual abuse of a minor because nothing in the record of conviction establishes the age of the “minor” in question. The charging document in John’s criminal case states that the he solicited “Jane Doe, a person the defendant believed to be a minor younger than seventeen (17) years of age.” (Emphasis added.) That the Respondent believed the “minor” to be under seventeen years of age is irrelevant. The government has the burden of proof to establish that the “minor” was in fact a person under the age of eighteen in order to establish the aggravated felony of sexual abuse of a minor.
In applying the categorical approach to my case, I reasoned that the criminal statute under which my client was convicted contains a definition for the word “minor” wherein the age of the minor cannot be determined from the statute. I also argued that because the age of the “minor” cannot be determined from the record of conviction, a modified categorical analysis would produce the same result. I argued that the Seventh Circuit case is not controlling in the Fifth Circuit, where my client’s proceedings were held, and so the Hernandez-Alvarez case could only be considered persuasive authority at best.
I argued that Matter of VFD was decided by the BIA after Hernandez-Alvarez and if the BIA wanted to take the Seventh Circuit’s reasoning nationwide, they needed only mention Hernandez-Alvarez in their decision. The BIA in Matter of VFD could have easily carved out an exception to their definition of “minor” to include police officers posing as a person under the age of eighteen in addition to people who are actually under 18 years of age. Yet the BIA chose not to do this. I argued that Matter of VFD controlled, and that the government had to prove via clear and convincing evidence that John’s conviction constituted sexual abuse of a person under the age of eighteen – a thing which it was impossible for them to demonstrate.
The Immigration Judge did not agree with me. He stated in his oral opinion that the mere use of the term “minor” in the statute of conviction meant that the respondent’s offense constituted sexual abuse of minor. The judge utterly ignored the definition of “minor” as that term is used in the statute of conviction at issue. I still believe I followed the best strategy for defending my client against the charges DHS brought against him. I am bolstered in my belief by the weakness of the Immigration Judge’s legal reasoning that led to his willfully obtuse decision. John’s case is currently on appeal to the BIA.
It remains to be seen whether my fundamental analysis of the categorical approach ultimately succeeds. However, a Fifth Circuit case which argued for a fundamental analysis of a landmark case, Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984), already has succeeded. Tune in later for more details, if you are interested!
On another front, recently the 5th Circuit has turned the issue of whether or not Adjustment of Status is an admission as defined in INA 101(a)(13)(A) on its ear – using a plain language reading of the statute. An “admission” has a specific definition in immigration law. “The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Yet, through case law, DHS has expanded that definition to include a person’s post-admission adjustment of status as an “admission.” This is quite significant when one realizes all the important statutes within the INA, such as sections 237 and 212, which include the date of admission as an element.
INA § 237(a)(2)(A)(iii) describes deportability for the conviction of an aggravated felony crime at any time after “admission.” Attorneys have argued that certain LPRs were never been admitted; in situations where someone entered the US without inspection and then later adjusted their status to that of permanent resident, this person would have never been inspected and authorized to enter the U.S. by an immigration officer, thus, they have never been “admitted.” For the purposes of removal under INA § 237(a)(2)(A)(iii), the person has therefore not committed an aggravated felony after “admission.” The BIA rejected this argument in In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999), and interpreted “admitted” for the purpose of section 237(a)(2)(A)(iii) to also include adjustment after admission.
Since that decision, both immigration attorneys and DHS have simply proceeded as if adjustment of status counts as an “admission” everywhere that term exists in the INA, even though the Rosas case clearly limited the BIA’s expansion of the term “admission” to one specific section of the INA.
Now, in the Fifth Circuit case Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), someone has successfully challenged the notion that an “admission” necessarily includes “adjustment.” Mr. Martinez first entered the US as a tourist in 1980. He adjusted his status to permanent resident in 1990. In 2001 he plead guilty to an offense which constitutes an aggravated felony. Not only did this conviction make him subject to removal, the government argued that it made him ineligible to seek a 212(h) waiver. Conventional wisdom held that the government was right; an aggravated felon is ineligible for a 212(h) waiver. Mr. Martinez argued otherwise.
The relevant language of INA § 212(h) states, “No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.”
Mr. Martinez argued that a person who is “admitted to the United States as an alien lawfully admitted for permanent residence” is different than a person who adjusts their status to that of permanent resident sometime after their admission to the United States. Thus, those permanent residents who are admitted to the United States as permanent residents and subsequently commit an aggravated felony are precluded from 212(h) relief. But those permanent residents who adjusted their status – who where not admitted to the United States as permanent residents – are distinguishable and therefore are not barred. The Fifth Circuit agreed with Mr. Martinez and ruled that he was eligible to pursue a 212(h) waiver.
The Court’s decision to contradict the creed that adjustment of status always counts as an “admission” was based on a basic analysis of Chevron. Chevron deals with the manner in which courts can resolve ambiguity in statutes. Under Chevron, if a statute is ambiguous, an agency’s reasonable interpretation of the ambiguity will be given deference by the court. In Martinez, DHS directly argued for deference and took for granted that 212(h) is ambiguous. The Court, however, did not get ahead of itself. Before it looked to whether the agency interpretation was reasonable and therefore worthy of deference, they first looked to whether an agency interpretation was necessary in the first place. According to Chevron, “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron at 842-43.
The Fifth Circuit reasoned that INA § 212(h) is unambiguous in precluding applicants “admitted to the United States as an alien lawfully admitted for permanent residence” and that the definition of “admitted” in INA § 101(a)(13) is also unambiguous in requiring a physical entry into the U.S. as an element of that admission. Because adjustment of status does not involve an “entry,” the Court reasoned that adjustment of status cannot be considered an “admission” just looking at the plain language.
DHS panicked and filed a request with the Court that the holding be limited only to the context of 212(h) waivers. That request was granted, but it makes no sense to limit it in such a way. After all, the Court was interpreting INA §101(a)(13), not §212(h) and made all of its analysis relating to its plain language reading of §101(a)(13).
Ultimately, the Court’s decision is only binding on the Fifth Circuit, and in some contexts could be used against a noncitizen who tries to file for Cancellation of Removal after an adjustment of status and no subsequent entry – as an example. What I take from the case is that a simple Chevron argument can work. We can and should continue to litigate cases in the Fifth Circuit and make arguments that put DHS to the test and force them to meet their burden rather than just caving in. We should recommit ourselves to zealous and bold representation of our clients, taking hope that the right thing can happen but only if we take action.