Safe Havens

Persons who produce pornographic materials are required to maintain certain records to establish that the models used were not under the age of 18 years when photographed.[141]  A violation of this record-keeping requirement carries a relatively modest maximum sentence of two years imprisonment for a first offense.[142]

            This offense is not an aggravated felony, because the aggravated felony definition lists convictions of offenses described in specified federal child pornography statutes, but this offense is not on that list.[143]  This offense does not fall within any other aggravated felony category.  As an offense that is malum prohibitum, rather than malum in se, there is nothing inherently evil about the act of failing to keep certain records.  This is nothing more than violation of a regulation, rather than something done with evil intent.  This is the essence of a regulatory offense, which does not constitute a crime involving moral turpitude.  See § 7.108, supra.

This offense does not involve children, and therefore does not constitute an offense of child abuse, abandonment, or neglect.  It therefore does not fall within the domestic violence deportation ground.[144]

The maximum sentence for this offense is a good deal less than the maximum possible prison sentence for producing or possessing child pornography.[145]  Moreover, prosecutors tend to be quite punitive with respect to child pornography offenses.  It may be difficult to convince prosecutor or court to allow the defendant to plead down to this relatively minor offense, unless the particular defendant is markedly less culpable than the average defendant in this type of case.  This does occur, however.  The prosecution case may be somewhat weak, or the defendant may have performed a relatively minor role in the offense, such as an underling or someone involved for a very short time, or someone who did not fully know what was going on, or a girlfriend of a player.  This safe haven is very useful in a proper case, as it protects the noncitizen defendant completely against deportation on account of this conviction.

[141] 18 U.S.C. § 2257(f)(1).

[142] 18 U.S.C. § 2257(i).

[143] INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I), listing offenses described in 18 U.S.C. § § 2251, 2251A, 2252.

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

[145] Compare 18 U.S.C. § 2251, with 18 U.S.C. § 2257(i).