Safe Havens

Many indecent exposure offenses can be committed by conduct as minor as urinating in public.  A conviction under this type of statute is a safe haven unless the record of conviction shows the particular offense of which the person was convicted falls within a ground of deportation, such as the aggravated felony sexual abuse of a minor category, the domestic violence child abuse offense, or a crime involving moral turpitude committed with an evil sexual intent of some kind.  These statutes are at least divisible, and can be violated by conduct that has no sexual intent at all.  If the elements of the statute are limited to this minor conduct, the offense does not fall within a ground of deportation.  If the elements are broader, and include this non-deportable conduct, as well as more serious conduct, the statute is divisible.  If the noncitizen is convicted under such a divisible statute, but the record of conviction does not establish that the offense of conviction fell within the deportable portion of the divisible statute, then the person has not been convicted of a deportable offense.  See § § 6.17-6.40, supra.

            Indecent exposure should not be an aggravated felony offense, assuming the record of conviction does not establish that a child was victimized at all by the conduct of conviction, and further does not establish that a child was subjected to sexual abuse.[128]  If the statute can be violated by mere public urination, with no sexual intent, it would not constitute this type of aggravated felony.  This offense does not fall within any other aggravated felony category.

            This offense is not a crime of moral turpitude because there is nothing inherently evil about public urination.  See § 7.106, supra.  The Board of Immigration Appeals has twice held that indecent exposure does not constitute a crime of moral turpitude.[129]

            Assuming this offense does not involve children, and has no essential element relating to children, it does not constitute an offense of child abuse, abandonment, or neglect.  It therefore does not fall within the domestic violence deportation ground.[130]  There is some question whether the government is allowed to go outside the record of conviction to establish that a listed victim was involved in an offense of conviction so as to bring the conviction within the domestic violence ground of deportation.  See § 7.154, supra.  If the police report shows that children were exposed to the indecent exposure, there would be some risk that this offense would be considered a domestic violence child abuse conviction, triggering deportation.  The government would also, however, be required to establish that the offense constituted child abuse.  It is not at all clear that showing a child viewed the indecent exposure is sufficient to establish that the child was abused.[131]  See § 7.157, supra.

[128] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

[129] Matter of Mueller, 11 I. & N. Dec. 268 (BIA 1965) (conviction of lewd and lascivious conduct by unlawfully, publicly and indecently exposing sex organ in violation of § 944.20(2) of the Wisconsin Statutes held not to be a crime involving moral turpitude, since no criminal intent was required, merely the conscious doing of one of the following acts: (1) commits an indecent act of sexual gratification with another with knowledge that they are in the presence of others; or  (2) publicly and indecently exposes a sex organ; or (3) openly cohabits and associates with a person he knows is not his spouse under circumstances that imply sexual intercourse); Matter of H, 7 I. & N. Dec. 301 (BIA 1956).

[130] INA § 237 (a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[131] United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) (California Penal Code § 647.6(a), annoy or molest a child under 18, is a “divisible statute,” and does not constitute an aggravated felony “sexual abuse of a minor” offense).