Fourth Circuit Finds New Jersey Child Sexual Abuse Material Offense Is a Crime of Child Abuse

The Fourth Circuit has denied in part and dismissed in part a petition for review filed by a Bangladeshi native and Canadian citizen who was found removable based on a New Jersey conviction involving child sexual abuse material. The respondent had pleaded guilty to knowingly storing or maintaining twenty-five or more items depicting the sexual exploitation or abuse of a child using a file-sharing program that made the material available for searching or copying by other computers.

The Court held that the conviction categorically qualifies as a crime of child abuse under the INA. The Court focused on the version of the New Jersey statute in effect at the time of the criminal conduct, rather than a later amended version, and found that storing child sexual abuse material on a searchable file-sharing program creates a reasonable probability of harm to the children depicted. The Court also dismissed the challenge to the discretionary denial of cancellation of removal and adjustment of status for lack of jurisdiction.

The full text of Uddin v. Blanche can be found here: https://www.ca4.uscourts.gov/opinions/241067.P.pdf

Tenth Circuit Finds that CA Child Pornography Conviction does not Match Federal Definition of Child Pornography Crime

The Tenth Circuit has determined that a California conviction for possession of child pornography does not match the federal definition of a crime involving child pornography because “the statute covers nonexplicit images of children with no focus on the child’s intimate areas—for example, an image that depicts an adult simply hugging a fully clothed child where the adult had the intent to be aroused.”

The full text of United States v. Griffin can be found here: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111367340.pdf

Eighth Circuit finds that Iowa Conviction for Possession of Child Pornography is not Aggravated Felony

The Eighth Circuit has determined that an Iowa conviction for possession or purchase of a visual depiction that shows a person under the age of 18 engaging in a prohibited sexual act or the simulation of a prohibited sexual act is not a sexual abuse of a minor aggravated felony. The Court observed that federal law requires “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in” the sexually explicit conduct, while Iowa Code § 728.12(3) does not. The Court remanded the case for further consideration of the petitioner’s argument that the conviction is also not a crime involving moral turpitude because it does not require that the defendant know the person in the image is underage.

The full text of Huynh v. Garland can be found here:

https://media.ca8.uscourts.gov/opndir/24/05/231318P.pdf

Second Circuit Concludes that NY Conviction for Attempted Possession of a Sexual Performance by a Child is an Aggravated Felony

The Second Circuit has concluded that a New York conviction for attempted possession of a sexual performance by a child is an aggravated felony related to possession of child pornography. The court rejected the petitioner’s argument that the New York statute had a lower mens rea than the federal statute, finding they both require the defendant to know that a minor was involved in the depiction. The petitioner also argued that the New York statute lacks the affirmative defense permitted by the federal statute, which covers an individual who possesses less than three prohibited visual depictions and, without allowing anyone else to access to them, either promptly destroys them or turns them over to law enforcement. The court deemed the affirmative defense to be irrelevant to the categorical approach.

The full text of Quito v. Barr can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/doc/18-996_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/327299e4-e63d-454c-8297-339ce94391dc/4/hilite/

Third Circuit Finds that NJ Conviction for Possession of Child Pornography is Crime of Child Abuse but not Aggravated Felony

The Third Circuit has determined that a New Jersey conviction for possession of child pornography is a crime of child abuse but not an aggravated felony relating to child pornography.

With respect to the aggravated felony charge, the court noted that “among the conduct that the state statute criminalizes, by means of its definition of ‘sexual contact,’ is the knowing possession of a visual depiction of an intentional touching, ‘either directly or through clothing,’ of the inner thigh, breasts, or buttocks by either the minor victim or adult actor for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.’ By contrast, in terms of conduct other than sexual acts and sadistic or masochist abuse, the federal offense prohibits the ‘lascivious exhibition’ of only the ‘genitals or pubic area of any person.’” In addition, there are depictions of nudity criminalized by the New Jersey statute that would not fall within the ambit of the federal statute.

With respect to the crime of child abuse charge of removability, the court noted that “[t]he conviction at issue here categorically matches the part of the BIA’s definition of child abuse that includes ‘any act that involves the use or exploitation of a child as an object of sexual gratification.’ Although Salmoran argues that possession of child pornography does not entail exploitation of the child, this position is untenable. “

The full text of Salmoran v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/172683p.pdf

Third Circuit Determines that PA Possession of Child Pornography Conviction is Categorically a CIMT

The Third Circuit has determined that a Pennsylvania conviction for possession of child pornography is categorically a crime involving moral turpitude, even considering that an 18-year-old could be prosecuted for sexting with a 17-year-old.  The court also rejected the petitioner's argument that the term "crime involving moral turpitude" was void for vagueness.

The full text of Moreno v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/171974p.pdf

Second Circuit Finds that New York Conviction for Possession of Child Pornography is an Aggravated Felony

The Second Circuit has determined that a conviction for possession of child pornography in New York is an aggravated felony.  Applying the Supreme Court's recent decision in Torres v. Lynch, the court determined that a state conviction need not contain an element involving interstate commerce in order to match the federal definition of possession of child pornography.

The full text of Weiland v. Lynch can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/eddbff90-990d-4c66-94d7-24b27b67a1c7/3/doc/14-3631_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/eddbff90-990d-4c66-94d7-24b27b67a1c7/3/hilite/

Ninth Circuit Finds that CA Conviction for Possession of Child Pornography is not an Aggravated Felony

The Ninth Circuit compared the federal child pornography possession statute (18 U.S.C. § 2252(a)(4)(B)) and the California child pornography possession statute (California Penal Code § 311.11(a)) and determined that the California statute encompassed broader conduct than the federal statute.  Specifically, the federal definition of “sexually explicit conduct” includes only five types of conduct: (i) sexual intercourse, (ii) bestiality, (iii) masturbation, (iv) sadistic or masochistic abuse, and (v) lascivious exhibition of the genitals or pubic area.  The California statute includes all of these acts, but also includes include “any lewd or lascivious sexual act," which includes any touching on any part of a child's body.  This catch-all provision renders the California statute broader than the federal analogue, and thus, it is not a categorical match to the federal definition of possession of child pornography.  Moreover, because California juries are not required to unanimously agree on what sexual conduct appears in a particular image in order to convict a defendant of possession of child pornography, the statute is not divisible, and the modified categorical approach may not be used.

The full text of Chavez-Solis v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/06/11-73958.pdf