First Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD ENDANGERMENT
Campbell v. Holder, 698 F.3d 29, *31 (1st Cir. Oct. 19, 2012) (Connecticut conviction of risk of injury to a minor under of the Connecticut General Statutes 53"21(a)(1) (penalizing [a]ny person who ... wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child...], does not categorically constitute aggravated felony sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the statute includes non-sexual acts such as providing alcohol to a minor).

Second Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL MISCONDUCT
Ganzhi v. Holder, 624 F.3d 23, 2010 WL 3465604 (2d Cir. Sept. 7, 2010) (per curiam) (New York conviction of sexual misconduct, in violation of New York Penal Law 130.20(1)[engages in sexual intercourse with another person without such person's consent], does not qualify as a sexual abuse of a minor aggravated felony under the categorical analysis, since the statute has no element involving the age of the victim).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL MISCONDUCT
Ganzhi v. Holder, 624 F.3d 23 (2d Cir. Sept. 7, 2010) (per curiam) (New York conviction of sexual misconduct, in violation of New York Penal Law 130.20(1), is a divisible statute, since it provides in different subsections different definitions of lack of consent, and includes offenses involving minors one day shy of 17 years of age).

Third Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - ENDANGERING WELFARE OF CHILDREN
Stubbs v. Attorney General, ___ F.3d ___, 2006 WL 1776462 (3d Cir. Jun. 29, 2006) (New Jersey conviction for "endangering welfare of children" under N.J. Stat. Ann. 2C:24-4(a), is not a aggravated felony sexual abuse of a minor, because the portion of the statute related to sexual conduct does not require that the conduct with a child). http://caselaw.lp.findlaw.com/data2/circs/3rd/044316p.pdf

Fourth Circuit

CRIMES OF MORAL TURPITUDE " CONTRIBUTING TO THE DELINQUENCY OF A MINOR
Prudencio v. Holder, 669 F.3d 472 (4th Cir. Jan. 30, 2012) (Virginia misdemeanor conviction of contributing to the delinquency of a minor, in violation of Virginia Code 18.2-371, did not categorically constitute a crime involving moral turpitude applying the modified categorical approach).

Fifth Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Munoz-Ortenza, __ F.3d __, 2009 WL 693146 (5th Cir. Mar. 18, 2009) (California conviction for oral copulation of a minor, in violation of Penal Code 288a(b)(1), was not necessarily "sexual abuse of a minor," and thus not a "crime of violence" for illegal re-entry sentencing purposes, since the offense may be committed against a person under 18, while the minor must be under 16 to qualify as "sexual abuse of a minor."), following United States v. Lopez-DeLeon, 513 F.3d 472 (5th Cir.), cert. denied, __ U.S. __, 128 S.Ct. 2916, 171 L.Ed.2d 851 (2008) (California conviction for unlawful sex with a minor, in violation of Penal Code 261.5(c), is not necessarily "sexual abuse of a minor" as the statute punishes sex with a person 18 years and under).

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
United States v. Medina-Valencia, 538 F.3d 831 (8th Cir. Aug. 13, 2008) (Texas conviction for indecency with a minor, in violation of Texas Penal Code 21.11(a)(1) not categorically sexual abuse of a minor for illegal re-entry sentencing purposes; "Subsection (a)(1), then, prohibits consensual sexual contact between two persons who are a day under 17, and of the same gender. This does not fit the ordinary, contemporary, common meaning of sexual abuse of a minor.")

Ninth Circuit

AGGRAVATED FELONY " CHILD PORNOGRAPHY " POSSESSION OF CHILD PORNOGRAPHY
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct. 6, 2015) (California conviction of possession of child pornography, Penal Code 311.11(a), is broader than the relevant federal aggravated felony statutory definition, and there is a realistic probability that overbroad conduct would be prosecuted in California, and this conviction therefore is not considered to be an aggravated felony for purposes of INA 101(a)(43)(I), 237(a)(2)(A)(iii): No provision of the federal statute's definition of sexually explicit conduct can be read to encompass any touching on any part of a child's body with the intent of arousing sexual desires. California's child pornography statute thus sweeps in depictions of a broader range of sexual conduct than the federal child pornography statute encompasses. On this basis, Penal Code 311.11(a) is categorically overinclusive.).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD MOLESTATION
United States v. Martinez, ___ F.3d ___, ___, 2015 WL 3406178 (9th Cir. May 28, 2015) (Washington conviction of third-degree child molestation, in violation of Wash. Rev.Code 9A.44.089, is categorically not an aggravated felony sexual abuse of a minor offense, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the offense is not divisible and includes touching over clothing; sexual abuse of a minor requires skin on skin contact); see State v. Soonalole, 992 P.2d 541, 544 & n.13 (Wash.Ct.App.2000) (holding that the fondling and thigh rubbing over the victim's clothes constituted a separate act of third-degree child molestation under state criminal law for double jeopardy purposes); see also United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as amended (holding that a California statute prohibiting lewd and lascivious acts on a child, under Penal Code 288(a), was categorically broader than the generic definition for sexual abuse of a minor because [l]ewd touching [under the state statute] can occur through a victim's clothing and can involve any part of the victim's body).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL CONDUCT WITH A MINOR
United States v. Gomez, __ F.3d __, 2014 WL 1623725 (9th Cir. Apr. 24, 2014) (Arizona conviction for violation of ARS 13-405, sexual conduct with a minor under the age of fifteen, is not necessarily a crime of violence, as sexual abuse of a minor, for illegal re-entry sentencing purposes, under current law), applying tests of Estrada"Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL BATTERY
Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. Sept. 4, 2012) (California conviction of sexual battery, in violation of Penal Code 243.4(a), did not categorically constitute a sexual abuse of a minor aggravated felony, because the elements do not require that the victim be a minor, and the evidence admissible under the modified categorical analysis did not establish that the victim was a minor).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SEXUAL CONTACT
Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. May 20, 2010) (Arizona conviction for violation of ARS 14-1405, sexual conduct with a minor under 18, is not categorically an aggravated felony for immigration purposes, since it does not meet the generic federal definition of "sexual abuse of a minor"), following Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009).

CRIMES OF MORAL TURPITUDE - POSSESSION OF CHILD PORNOGRAPHY
United States v. Santacruz, 563 F.3d 894 (9th Cir. Apr. 20, 2009) (per curiam) (federal conviction of possession of child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) ("knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography"), constituted a conviction of a crime involving moral turpitude, and supported district court's order granting partial summary judgment in favor of the United States in an action to revoke naturalized citizenship: "The Supreme Court has characterized sexual abuse of a minor as "an act repugnant to the moral instincts of a decent people." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Moreover, child pornography, as "permanent record of a child's abuse," causes continuing "injury to the child's reputation and well-being." Id. at 249. Because possession of child pornography offends conventional morality and visits continuing injury on children, it is "vile, base or depraved and ... violates societal moral standards." Navarro-Lopez, 503 F.3d at 1074. Therefore, possession of child pornography under 18 U.S.C. 2252A(a)(5)(B) is a crime involving moral turpitude."); accord In re Olquin-Rufino, 23 I. & N. Dec. 896, 896 (BIA 2006) (Florida conviction of possession of child pornography, under Florida Statute 827.071(5) ("unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which ... he or she knows to include any sexual conduct by a child"), constituted conviction of crime involving moral turpitude); See Iowa Supreme Court Attorney Disciplinary Bd. v. Blazek, 739 N.W.2d 67, 69 (Iowa 2007) (possession of child pornography is morally turpitudinous); Chapman v. Gooden, 974 So.2d 972, 977 (Ala.2007) (same); cf. In re Wolff, 490 A.2d 1118, 1120 (D.C.Ct.App.1985), vacated, 494 A.2d 932, aff'd, 511 A.2d 1047 (1986) (en banc) (same) (possession of child pornography is a crime involving moral turpitude).

This decision is incorrect. Museums, law enforcement agencies, court clerks, and academic researchers may possess these items without moral culpability of any kind. The issue of criminality of their possession hinges on whether the possession is unauthorized under law. This offense is therefore malum prohibitum, and should be considered a regulatory offense, rather than a crime of moral turpitude. It is, after all, mere private possession, rather than production or distribution.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - UNLAWFUL SEX WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of unlawful sex with a minor more than three years younger, in violation of Penal Code 261.5(c), is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL SODOMY WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual sodomy with a person under 18 years old, in violation of Penal Code 286(b)(1), is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL ORAL COPULATION WITH A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual oral copulation with a person under 18 years old, in violation of Penal Code 288a(b)(1), is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONSENSUAL SEXUAL PENETRATION BY A FOREIGN OBJECT OF A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (California conviction of consensual sexual penetration by a foreign object of a person 14 years old, but under 18, in violation of Penal Code 289(h), is overbroad in that it includes conduct that falls outside of the generic aggravated felony definition of a sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), and is therefore not categorically an aggravated felony under that theory for deportation purposes).

CRIMES OF MORAL TURPITUDE - SEX OFFENSES - ANNOYING OR MOLESTING A CHILD
Nicanor-Romero v. Mukasey, 523 F.3d 992 (9th Cir. Apr. 24, 2008) (California misdemeanor conviction of annoying or molesting a child, in violation of Penal Code 647.6(b) ["annoys or molests any child under the age of 18"], did not constitute a crime of moral turpitude under the categorical approach, or under the modified categorical approach: "After examining the elements of 47.6(a), as set forth in the statute and as construed by California courts, we conclude that there is a "realistic probability, not a theoretical possibility," that a misdemeanor conviction under 647.6(a) can be based on behavior that, while criminal, does not rise to the level of a "crime involving moral turpitude" within the meaning of 8 U.S.C. 1227(a) (2)(A)(i)(I). ... We conclude that the government has failed to show that Nicanor-Romero committed either an aggravated felony or a crime involving moral turpitude. We therefore grant the petition and vacate the order of removal.").

POST CON RELIEF - FEDERAL - AEDPA STATUTE OF LIMITATIONS - STATE CONVICTIONS
Allen v. Siebert, 128 S.Ct. 2 (9th Cir. Nov. 5, 2007) (when a postconviction petition is untimely under state law, "that [is] the end of the matter" for purposes of tolling the AEDPA's 1-year statute of limitations for filing a federal habeas petition, and the inquiry does not turn on the nature of the particular time limit relied upon by the state court at issue).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - PUBLIC INDECENCY TO CHILD
Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS 13-1001 and 13-1403(B), includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U); statute includes acts that do not involve touching or knowledge of the child, and therefore do not involve sexual abuse of a minor). Note: the court examined Arizona state caselaw, applying Duenas.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - CONVICTION DID NOT CATEGORICALLY CONSTITUTE SEXUAL ABUSE OF A MINOR BECAUSE THE ELEMENTS DID NOT REQUIRE PSYCHOLOGICAL OR PHYSICAL ABUSE
United States v. Baza-Martinez, ___ F.3d ___, 2006 WL 2729691 (9th Cir. Sept. 26, 2006) (North Carolina conviction of taking indecent liberties with a child, in violation of N.C.G.S. 14-202.1 [take or attempt an immoral, improper, or indecent liberty with a child under 16 by defendant more than five years older, for purpose of arousing or gratifying sexual desire, which can be committed by mere words], was not categorically sexual abuse of a minor, because the statute did not require as an element the infliction of psychological or physical harm to the minor, and therefore did not constitute a crime of violence under USSG 2L1.2(b)(1)(A)(ii) for purposes of imposing a 16-level enhancement of sentence for illegal reentry), disagreeing with United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005); Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001) (interpreting same statute of conviction but reaching opposite conclusion).

RECORD OF CONVICTION - JUDICIAL NOTICE - AGE OF THE DEFENDANT - PROBABLY NOT A PROPER SUBJECT OF JUDICIAL NOTICE AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE OF A MINOR
Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006) (court of appeal declined to take judicial notice of age of defendant in applying modified categorical analysis to California conviction of unlawful sex with person under 18 years, in violation of California Penal Code 261.5(c), to determine whether the record of conviction established a substantial risk that force may be used in committing the offense to bring the conviction within the definition of a crime of violence under 18 U.S.C. 16(b)), withdrawing and replacing 431 F.3d 673 (9th Cir. December 12, 2005). http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - UNLAWFUL SEX WITH A MINOR - MODIFIED CATEGORICAL ANALYSIS DOES NOT BRING CONVICTION WITHIN AGGRAVATED FELONY DEFINITION BECAUSE IT DOES NOT ESTABLISH AGGRAVATING FACTORS, SUCH AS USE OF A THREAT OF FORCE OR STALKING OF THE MINOR, THAT MIGHT CREATE A SUBSTANTIAL RISK THAT VIOLENT FORCE MAY BE USED TO COMMIT THE OFFENSE

Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006)(California conviction of unlawful sexual intercourse with a person under 18 years of age, who is more than three years younger than the perpetrator, in violation of California Penal Code 261.5(c), is not categorically a crime of violence under 18 U.S.C. 16(b), or an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes, since the minimum conduct does not fall within the ground, and applying a modified categorical analysis: "Our inquiry here is whether the documents of conviction or other judicially noticeable facts suggest that the offense, by its nature, involves the targeted risk of the use of physical force: for instance, that the unlawful intercourse was preceded by a threat or the stalking of the minor" and the documents of record do not do so), withdrawing and replacing 431 F.3d 673 (9th Cir. Dec. 12, 2005). http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - UNLAWFUL SEX WITH A MINOR
Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006) (California conviction of unlawful sexual intercourse with a person under 18 years of age, who is more than three years younger than the perpetrator, in violation of California Penal Code 261.5(c), for which a sentence of one year had been imposed, is not a crime of violence under 18 U.S.C. 16(b), and therefore not a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes, because the full range of conduct defined by the elements of the offense of conviction does not "by its nature, involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," because the statute of conviction prohibits consensual sexual intercourse between a twenty-one-year-old and a minor one day shy of eighteen, who is fully capable of freely and voluntarily consenting to sexual relations, so the minor's deemed incapacity does not suggest a risk that force may be used in committing the offense), withdrawing and replacing 431 F.3d 673 (9th Cir. December 12, 2005), distinguishing United States v. Asberry, 394 F.3d 712, 716-18 (9th Cir. 2005)(conviction for the statutory rape of a victim under the age of sixteen is categorically a crime of violence under U.S.S.G. 4B1.2(a)(2)[crime of violence is defined under this guideline as an offense that poses a "serious potential risk of physical injury to another"] because consequences of sexual intercourse such as pregnancy and sexually transmitted disease fall within the meaning of "physical injury").
http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) - UNLAWFUL SEX WITH A MINOR
Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006) (California conviction of unlawful sexual intercourse with a person under 18 years of age, who is more than three years younger than the perpetrator, in violation of California Penal Code 261.5(c), for which a sentence of one year had been imposed, is not a crime of violence under 18 U.S.C. 16(a), and therefore not a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes, because the offense of conviction does not have "as an element the use, attempted use, or threatened use of [violent] physical force against the person or property of another."), withdrawing and replacing 431 F.3d 673 (9th Cir. Dec. 12, 2005).
http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - WASHINGTON CONVICTION OF COMMUNICATING WITH A MINOR FOR IMMORAL PURPOSES HELD NOT TO BE SEXUAL ABUSE OF A MINOR UNDER A CATEGORICAL ANALYSIS, BUT WAS A DIVISIBLE STATUTE
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (9th Cir. July 11, 2005) (Washington conviction of communication with a minor for immoral purposes, in violation of Washington Revised Code 9.68A.090, was an aggravated felony that met the definition of "sexual abuse of a minor" under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), applying the modified categorical approach to a divisible statue, and therefore disqualified the noncitizen from eligibility for cancellation of removal).
http://caselaw.lp.findlaw.com/data2/circs/9th/0374010p.pdf

Lower Courts of Ninth Circuit

CRIMES OF MORAL TURPITUDE " ORAL COPULATION WITH A MINOR
People v. Zuniga, 225 Cal.App.4th 1178, 170 Cal.Rptr.3d 811 (Cal.App. 4 Dist., Apr. 28, 2014) (California conviction of violating Penal Code 288a(b)(1), oral copulation with a minor, is not a crime of moral turpitude since there is no scienter requirement or age gap required and minor could be any person under 18).

Other

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (July 11, 2005) (Washington conviction of communication with a minor for immoral purposes, in violation of Washington Revised Code section 9.68A.090, was not on its fact an aggravated felony because it did not categorically meet the definition of "sexual abuse of a minor" under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because the statute broadly included "immoral purposes" such as providing information on how to get an unlawful abortion, displaying pornography visible from a public thoroughfare, and allowing a minor onto the premises of a live erotic performance, which, while not commendable, were not abusive in nature), citing Pallares-Galan, 359 F.3d at 1101-02.
http://caselaw.lp.findlaw.com/data2/circs/9th/0374010p.pdf

     The case arose because Parrilla was denied eligibility to apply for "LPR Cancellation of Removal" as an aggravated felon. However, if his plea had been done differently, Parrilla might not even have been deportable. Even though CMIP constitutes a "crime involving moral tupitude (CIMT)," a ground distinct from SAM, long-term residents are not always deportable for a single CIMT.  Assuming Parrilla stands, Communication with a Minor For Immoral Purposes could be a safer alternative plea to more serious sex offenses that would be aggravated felonies as either "rape" or "sexual abuse of a minor."  This disposition will be safe, however, if (and only if) the record of conviction, including the information, judgment and sentence, and plea statement, is limited to the language of the statute and does not establish that the immoral purpose of the communication was to commit a specific offense that would be considered rape or sexual abuse of a minor.

AGGRAVATED FELONY - CHILD PORNOGRAPHY - TEXAS
Texas Penal Code, 43.26(a)(1) prohibits possession or promotion of child pornography. This statute penalizes possession of material containing an image of a child engaging in "sexual conduct," whereas the federal child pornography statutes listed in the aggravated felony definition require "sexually explicit conduct." If it can be shown that the Texas statute includes more material than the federal statute, a Texas conviction would be divisible with respect to the child pornography aggravated felony definition.