C ite as 2 7 I&N Dec. 1 (BIA 2017 ) Interim Decision #38 87

1 

### Matter of Pedro Josue JIMENEZ

- CEDILLO

, Respondent

Decided April 6, 2017

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration A ppeals

(1) A sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young

— that is, under

14 years of age

— or is under 16 and the age differential between the perpetrator and

victim is signifi can t , or both , even though the statute requires no culpable mental state as to the age of the child

. Matter of Silva

- Trevino , 26 I&N Dec. 826 (BIA 2016)

, clarified

.

( 2 ) S exual solicitation of a minor under section 3

- 324 (b) of the Maryland Criminal Law

with the intent to engage in an unlawful sexual offense in violation of section 3

- 307 is categorically a crime involving moral turpitude.

FOR RESPONDENT: Eduardo V. Gonzalez , E squire, Salisbury, Maryland

FOR THE DEPARTMENT OF HOMELAND SECURITY: Carrie E. Johnston

, Senior Attorney

BEFORE: Board Panel: PAULEY, MULLANE , and GREER

, Board Members

.

PAULEY

, Board Member :

In a decision dated October 8, 2015, an Immigration Judge found the respondent removable under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)( 2 )(A)(i) (I) (2012), as an alien who has been convicted of a crime involving moral turpitude , and section 212(a)(6)(A)(i)

, as an alien who is present in the United States without being admitted or paroled

. The Immigration Judge granted the respondent ’ s request for voluntary depart u re with an alternate order of

removal

. The respondent has appealed from that decision. The ap peal will be dismissed, and the respondent will be ordered removed from the United

States

.



### I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico. On February 11, 2015, he was convicted of sexual solicitation of a minor in violation of

section 3

- 324 of the Maryland Criminal Law, for which he was sentencedC ite as 2 7 I&N Dec. 1 (BIA 2017 ) Interim Decision #38 87

2 to a term of imprisonment of 2 years, with 1 year and 6 months suspended. At a hearing before the Immigration Judge , t he respondent conceded that

he is removabl e under section 212(a)(6)(A)(i) of the Act but contested his removability under section 212(a)(2)(A)(i)(I) as an alien who has be e n convicted of a crime involving moral turpitude

. T he Immigration Judge

found him removable on both ground s

.



### I I

. ANALYSIS

On appeal, the respondent contends that his conviction for sexual solicitation of a minor under Maryland law is not for a crime involving moral turpitude

. The parties agree that section 3

- 324 of the Maryland

Criminal Law is divisible and do not dispute that t he respondent was

con victed under the following pr ovis ion at section 3

- 324 (b) :

A person may not, with the intent to commit a violation of . . . § 3

- 307 of this
subtitle . . . , knowingly solicit a minor , or a law enforcement officer posing as a minor, to engage in activities that would be unlawful for the person to engage in

under

. . . § 3

- 307 of this subtitle . . . .

(Emphases added.) At the time of the respondent’s offense

, s ection

3

- 307 ( a) of the Maryland Criminal Law provide d as follows:

A person may not:

(1) (i) engage in sexual contact with another without the consent of the other;

and (ii) 1. employ or display a dangerous weapon, or a physical object that the

victim reasonably believes is a dangerous weapon;

2. suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;

3. threate n, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or

4. commit the crime while aided and abetted by another; (2) engage in sexual contact with another i f the victim is a mentally defective

individual , a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know

the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual;

(3) engage in sexual contact with another if the victim is under the age of

14 years, and the person performing the sexual contact is at l east 4 years older
than the victim;

(4) engage in a sexual act with another if the victim is 14 or 15 years old, and the person performing the sexual act is at least 21 years old; or

(5) engage in vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old.C ite as 2 7 I&N Dec. 1 (BIA 2017 ) Interim Decision #38 87

3 The respondent argu es that his State statutes of conviction reach consensual sexual conduct and do not require that a violator possess any culpable mental state regarding the age of the victim. The Department of Homeland Security counters that although the Maryland law lacks these elements, the respondent’s offense i s a categorical crime involving moral turpitude because all violations of the statute s necessarily involve either a very young victim

— that is, a child under 14 years of age

— or a substantial age difference between an adult perpetrator and a minor victim under the age of 16. Whether sexual solicitation of a minor is a crime involving moral turpitude is a questi on of law that we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016). “The term ‘moral turpitude’ generally refers to conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’” Matter of Silva

- Trevino , 26 I&N Dec. 826, 833 (BIA 2016) (citation omitted). “To involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state,” including specific intent , knowledge, willfulness, or recklessness. Id. at 834; see also Matter of Silva

- Trevino , 2 4 I&N Dec. 687

, 6 8 9 n.1 (A .G. 20 08 )

. To determine whether the respondent’s offense is a crime involving moral turpitude, we employ the categorical approach, which re quires us to

examine the elements of the State statute of conviction , rather than the facts underlying the respondent’s particular violation, and to see whether those elements categorically “fit[] within the generic definition of a crime involving moral turpitude.” Matter of Silva

- Trevino , 26 I&N Dec. at 831. “An element of a statute is what the ‘prosecution must prove to sustain a

conviction’ and th e jury must find beyond a reasonable doubt.” Matter of

Kim , 26 I&N Dec. 912, 913 (BIA 2017) (quoting Mathis v. United States

, 136 S. Ct. 2243, 2248 (2016)). When faced with a statute that does not categorically fit within the

definition of a crime invo lving moral turpitude, we must consider whether the statute sets forth “multiple alternative elements” and is therefore

divisible. Matter of Silva

- Trevino , 26 I&N Dec. at 833 n.8 (quoting

Mathis , 136 S. Ct. at 2249). If the statute is divisible, we may examine the record of conviction to “identify the statutory provision that the respon dent was convicted of violating. ” I d. at 833 . We may then consider whether

that “ portion of the statute is a categorical match to the federal generic

definition.” Lario s

- Reyes v. Lynch , 843 F.3d 146, 153 (4th Cir. 2016). We conclude that the respondent’s violation of sections 3

- 307 ( a ) and

3

- 324 ( b ) is categorically a crime involving moral turpitude. S ectionC ite as 2 7 I&N Dec. 1 (BIA 2017 ) Interim Decision #38 87

4 3

- 324 (b) requires that a violator “knowing ly solicit a minor

, ” 1 a culpable

mental state that fits within the generic definition of a crime involving moral turpitude. See Matter of Silva

- Trevino

, 26 I&N Dec. at 82 8 n.2 , 834

. Further, moral turpitude inheres in a ll violation s of section 3

- 307.

Sections 3

- 307 (a)(1) and (2) necessarily involve sexual contact with a victim wh ose lack of consent is either explicit or implicit

. See Travis

v. State , 98 A.3d 281, 293 (Md. Ct. Spec. App. 2014). It is well settled that

such crimes are turpitudinous. See Matter of Z

- , 7 I&N Dec. 253 , 254

– 55 (BIA 1956) ( hol ding that taking indecent liberties with a woman without

her consent is a crime involving moral turpitude); Matter of M

- , 2 I&N

Dec. 17

, 19

– 20 (BIA 1944) (holding that having sex ual relations with a

woman with the know ledge that her “mental powers are impaired to an extent negativing the idea of consent” i s a crime involving moral turpitude ).
Moreover, to violate section 3

- 307(a)(3), (4), or (5)

, a perpetrator must engage in an intentional sexual act or other contact with a minor victim

under 16 years of age

. In the past, we have held that such con du ct is morally turpitudinous as long as the perpetrator knew or should have

known that the victim was under the age of 16. See Matter of

Silva

- Trevino

, 26 I&N Dec. at 834 & n.9 (citing Matter of Guevara Alfaro

, 25 I&N Dec. 417, 420

– 21 (BIA 2011) )

. However, as noted, a defendant

can be convicted under sections 3

- 307(a)(3), (4), and (5 ) even if t he re was a reasonable mistake as to the victim’s age. See Moore v. State , 882 A.2d 256, 268 (Md. 2005). Because these section s do not require the perpetrator

to have a culpable mental state regarding the age of the victim , t he respondent contends that the prohibited offenses do not categorically fit within the generic definition of a crime involving moral turpitude

. We have yet to decide whether sexual crimes that do not require a

perpetrator to possess a culpable mental state with respect to the age of t h e victim are crimes involving moral turpitude. See Matter of Silva

- Trevino

, 26 I&N Dec. at 834 n.9 ( reserving the question whether statutory rape

offenses that “do not require a perpetrator to have knowledge of the age of

the victi m

. . . are crimes involving moral turpitude”). While we held i n Matter of Silva

- Trevino that moral turpitude was inherent in a sexual offense against a minor if an alien knew or should have known that the

1 Although section 3

- 324(b) also requires that a violation of section 3

- 307 be with the

“intent to commit [such] a violation

, ” the plain language of sections 3

- 307 (a) (3), (4)

, and (5) indicates that a defendant need not have known the age of the victim. Each section

makes it unlawful to have sexual contact or commit a sexual act “if” the victim is a certain age , regardless of whether the perpetrator knew or reasonably should have known the victim’s actual age

. See Moore v. State , 882 A.2d 256, 268 (Md. 2005) (noting that

sections 3

- 307 (a) (4) and (5) do not contain a mistake o f age defense ).C ite as 2 7 I&N Dec. 1 (BIA 2017 ) Interim Decision #38 87

5 victim was a minor

, our decision did not foreclose the possibility that moral turpitude will inhere in some crimes

, even if the relevant statute lack s an element that requires the perpetrator to have some culpable mental state regarding the victim’s age

. Id. at 834.

The Uni ted States Court of Appeals for the Fourth Circuit , in whose jurisdiction this case arises, has not directly addressed this issue . However

, we find instructive the Third Circuit ’s reasoning in Mehboob v. Att orne y Gen eral of the U.S. , 549 F.3d 272 (3d Cir. 2008) , where the court concluded that indecent assault involving a minor under 16 years of age

was a crime involving moral turpitude, despite the fact that a perpetrator need not have a culpable mental state regarding the victim ’s age.

The absence of a mens rea as to a particular element in the statute of conviction does not necessarily connote an absence of moral culpability on the part of the

violator. Strict liability morality offenses , like indecent assault . . .

, are crimes involving moral turpitude because of the community consensus that such offenses

, which are enacted for the protection of the child

, are inherently antisocial and depraved

. . . .

Legislatures often remove mens rea elements from sex offenses on the basis o f community consensus that certain conduct should not be permitted with children under a certain age. . . .

T hus, t he same community consensus that obviates the need to prove knowledge of the actual age of the victim at a criminal trial also categorizes [indecent assault] as a crime involving moral turpitude.

Id. at 277 (emphas e s added) (footnote and citations omitted)

. We therefore clarify our decision in Matter of Silva

- Trevino and now hold that a sexual offense in vi ola tion o f a statute enacted to protect

children is a crime involving moral turpitud e where the victim is particularly young

— that is, under 14 years of age

— or is under 16 and the

age differential between the perpetrator and victim is significant

, or both

, even though the stat ute requires no culpable mental state as to the age of the

child

. Because such offenses contravene society’s interest in protecting

children from sexual exploit ation , we conclude that they are reprehensible

. See Matter of Olquin , 23 I& N Dec. 896, 897 (BIA 2006) ( “ S exual exploitation of children is a particularly pernicious evil. It is evident beyond all doubt that any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whet her or not the

ch ild consents.”) ; see also Castle v. INS , 541 F.2d 1064, 1065 n.1, 1066 (4th Cir. 1976) (holding that an adult “ man’s carnal knowledge of a fifteen year old girl . . . is so basically offensive to American ethics and accepted

moral standards as to constitute moral turpitude per se”)

. W e also concludeC ite as 2 7 I&N Dec. 1 (BIA 2017 ) Interim Decision #38 87

6 that as the age gap between a victim under 16 and a n older perpetrator increases, the more reprehensible the offense becomes. 2

Further, w he re a statute criminaliz ing sexual conduct with a minor necessarily involves either a particularly young victim or a significant age

differen ce between the perpetrator and a victim under 16 years of age , the culpable mental state element f or a crime involving moral turpitude is implicitly satisfied by the commission of the proscribed act

. See Garnett

v. State , 632 A.2d 797, 805 ( Md. 1993) (adopting “ the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, [and] physical injury ”). In this regard, our holding in Matter of Silva

- Trevino is distinguishable

. T he Texas statute at issue there criminalized sexual contact between a minor who is 16 years old or younger and a perpetrator who is more than

3 years old er. By contrast, under s ection 3

- 307(a)(3) of the Maryland

Criminal Law

, the victim is much younger ( no older than 13 ) and the

perpetrator must be at least 4 years older. W hile sections 3

- 307(a)(4) and (5) reach relatively older victims ( under 16 years o f age )

, these provis ions also require that the perpetrator be an adult who is significantly older than

the victim

— specifically, at least 6 years older

. We therefore conclude that

all of the conduct proscribed by section 3

- 307 categorically fits within the generic definition of a crime involv ing moral turpitude. Finally, w e note that a defendant may be convict ed under section

3

- 324 (b) for knowing ly solicitin g a law enforcement officer who is posing

as a minor to engage in sexual activity . W e understand such an act to be equivalent to an attempt to engage a n actual minor in unlawful sexual activity. Cf. Hernandez

- Alvarez v. Gonzales , 432 F.3d 763, 766 (7th Cir. 2005) ( holding that solicitation of an undercover investigator who was posing as a minor qualified as attempted sexual abuse of a minor).

I t is well established that we only look to the underlying crime “ to
determine whether inchoate offenses, such as attempt

. . . or solicitation, constitute crimes involving moral turpitude .” Matter of Vo , 25 I&N Dec.

426 , 42 8 (BIA 2011) ; s ee also , e.g.
, Reyes v. Lynch , 835 F.3d 556 , 560 (6th Cir. 2016) (holding that solicitation of prostitution i s a crime involving

2 In the aggravated felony context, we emphasized that a substantial age differential “is the key consideration in determining whether ” an alien who has engaged in sexual intercourse with a victim who is 16 or 17 years old has committed sexual abuse of a

minor under the Act. Matter of Esquivel

- Quintana , 26 I&N Dec. 469, 475 (BIA 2015), aff’d , 810 F.3d 1019 (6th Cir. 2016), cert. granted , 137 S. Ct. 368 (mem.) (2016); see also Larios

- Reyes , 843 F.3d at 156 n.7 (according deference to our conclusion in Matter of Esquivel

- Quintana that “the generic federal offense of ‘sexual abuse of a minor’ requires a meaningful age difference between the victim and the perpetrator”).C ite as 2 7 I&N Dec. 1 (BIA 2017 ) Interim Decision #38 87

7 moral turpitud e because the underlying offense of prostitution is turpitud inous ); Gomez

- Gutierrez v. Lynch , 811 F.3d 1053 , 1058

– 59 (8th Cir. 2016) (same); Perez v. Lynch , 630 F. App’x 870 , 872

– 73 (10th Cir. 2015) (same ) ; Rohit v. Holder , 670 F.3d 1085 , 1089

– 90 (9th Cir. 2012) (same). Because the respondent pled guilty under section 3

- 324(b) of the Maryland Criminal Law to knowingly soliciting a minor

, or a police officer who was posing as a minor, with the intent to engage in unlawful sexual activity in violation of section 3

- 307, we conclude that he has been convicted of an offense that is categorically a crime involving moral turpitude. We therefore agree with the Immigration Judge that the respondent is removable pursuant to section 212(a)(2)(A)(i)(I) of the Act

and we will dismiss his appeal

. The Immigration Judge granted the respondent voluntary departure conditioned upon the posting of a voluntary departure bond and informed

him in writing of his obligation to provide the Board with timely proof t hat the bond had been posted. The respondent has not submitted proof that the voluntary departure bond has been paid . Accordingly, the voluntary departure period granted by the Immigration Judge will not be reinstated

. 8 C.F.R. § 1240.26(c)(3)(ii) (2016) ; see also Matter of Gamero , 25 I&N

Dec. 164 , 166

– 67 (BIA 2010). T he respondent will therefore be ordered removed from the United States pursuant to the Immigration Judge ’ s alternate order of removal

. 

### ORDER: The appeal is dismissed.


### FURTHER ORDER: T he respondent is ordered removed from the

United States to Mexico pursuant to the Immigration Judge ’ s alternate

order of removal

.