Aggravated Felonies

 

(A)  Elements.  This portion of the aggravated felony definition specifically lists offenses described in the following statutes:

 

            18 U.S.C. § 2251, entitled “Sexual exploitation of children,” punishing the use of a minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of that conduct,[81] as well as punishing any parent or guardian who permits or assists the minor to do so.[82] 

 

            18 U.S.C. § 2251(c)(1), punishing anyone who knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering:

 

(a)       to receive, exchange, buy, produce, display, distribute, or reproduce any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or

 

(b)       participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct.  The federal jurisdictional base requires that the person “knows or has reason to know that such notice or advertisement will be transported in interstate or foreign commerce by any means including by computer or mailed; or . . . such notice or advertisement is transported in interstate or foreign commerce by any means including by computer or mailed.”[83]

 

This penalizes someone who knowingly publishes a notice offering to distribute by computer a visual depiction of a minor engaging in sexually explicit conduct.  If an e-mail is construed as a “notice,” it is possible that sending sexually explicit images of children over the internet may be considered to be conduct that violates this statute.  There may be other defenses relating to lack of knowledge the subject was a minor, First Amendment issues, entrapment, differences in the definition of the federal and state offenses, etc., but it would be far better for the client if immigration counsel did not to have to defend against this possibility at all.

 

            18 U.S.C. § 2251A, punishing the selling or buying of children.

 

            18 U.S.C. § 2252, entitled “Certain activities relating to material involving the sexual exploitation of children,” punishing a number of offenses:

 

            Subparagraph (a)(1) penalizes anyone who knowingly transports in interstate commerce by computer or mail any visual depiction of a minor engaging in sexually explicit conduct. 

 

            Subparagraph (a)(2) penalizes anyone who knowingly receives or distributes any visual depiction of a minor engaging in sexually explicit conduct that has been mailed or transported in interstate commerce by computer or knowingly reproduces any visual depiction for distribution in interstate commerce by computer or mail.

 

            Subparagraph (a)(3)(A) penalizes knowing sale or possession for sale of any visual depiction of a minor engaging in sexually explicit conduct in U.S. territorial jurisdiction or land.

 

            Subparagraph (a)(3)(B) penalizes knowing sale or possession for sale any visual depiction of a minor engaging in sexually explicit conduct that has been mailed or transported in interstate commerce or which was produced using materials that were mailed or transported in interstate or foreign commerce by any means including computer.

 

            Subparagraph (a)(4)(A) penalizes knowing possession of “one or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction” of a minor engaging in sexually explicit conduct in U.S. territorial jurisdiction or land.

 

            Subparagraph (a)(4)(B) penalizes knowing possession of “one or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction” of a minor engaging in sexually explicit conduct that has been mailed or transported in interstate commerce or which was produced using materials that were mailed or transported in interstate or foreign commerce by any means including computer.[84]

           

            Subparagraph (b)(1) provides a 10-year maximum for a violation, attempt, or conspiracy to violate subparagraphs (a)(1)-(3).  With a prior conviction under this chapter or chapter 109A, the term is from five to 15 years.

 

            Subparagraph (b)(2) provides a five-year maximum for a violation, attempt, or conspiracy to violate (a)(4).

 

            To qualify as an aggravated felony, all the elements of the statute of conviction must fall within one of these sections.[85]

[81] 18 U.S.C. § 2251(a).

[82] 18 U.S.C. § 2251(b).

[83] Ibid., subparagraph (2).

[84] This section has been found unconstitutional.

[85] See, e.g., Gonzalez v. Ashcroft, 369 F.Supp.2d 442 (S.D.N.Y. Apr. 29, 2005) (New York conviction for “use of a child in a sexual performance” under New York Penal Law § 263.05, did not constitute an offense relating to child pornography, and was therefore not an aggravated felony under INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I), because the statute of conviction permits convictions for a lesser degree of scienter when parents or guardians are charged with violating the statute than the federal statutes encompassed by the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of the performance, the clause regarding parents is rendered superfluous.”).  See also § § 4.2-4.6, supra.