MATTER OF

`T

In DEPORTATION Proceedings

A-8583853
Decided by Board June 1, 1959

Deportabiiity--Section 21100(4) of 1952 act—Commitment under Federal
Youth Corrections Act not "sentence to cunfinement_"
Commitment for an indefinite term for treatment and supervision under the
Pederel Vonth Corrections Act of September 30, 1950, as amended (18 U.S.C.,
chapter 402, sections 5005-*020), is not A "sentence to confinement" within
the meaning of section 241(a) (4) of the 1952 act. (Cf. Manor of L
R
, A-6881251, Int. Dec. No. 985; Matter of P—, A-8378327, Int. Dec.
No. 1043.)
CHARGE:
Order; Act of 1952 Section 241(a) (4) (8 U.S.C. 1251(a) (4)]
within i1 e ,rears—Embezzlement.
—

—

Crime

BEFORE THE BOARD

Discussion: This case is before us an appeal from a decision of a
special inquiry officer directing the respondent's deportation.
The respondent is a 21-year-old unmarried male whose date of
birth appears to be January 23, 1938. He is a native of Czechoslovakia and is either a citizen of that country or of Israel. He
last entered the United States on December 9, 1953. Apparently
he was lawfully admitted for permanent residence at that time and
had not previously resided in this country. On June 2, 1958, the
respondent was convicted of having embezzled funds on April 15,
1958, from a Federal savings and loan association in violation of
18 U.S.C. 657, and the court committed him to the custody of the
Attorney General for an indefinite term for treatment and supervision pursuant to the Federal Youth Corrections Act (18 U.S.C.
5010(h)) until diocharged as provided by 18 U.S.C. 5017(c). The
latter provision requires that such a person shall be relelised conditionally under supervision on or before the expiration of four years
from the date of conviction and shall be discharged unconditionally
on or before six years from the date of conviction. The issue to be
determined is whether the respondent is deportable under 8 U.S.C.
1251(a)(4).

360

Counsel contends that there were certain extenuating circumstances in connection with the commission of the offense. He stated
that the respondent came to the United States with his parents,
his brother and his sister in 1953; that during the period when
he was attending high school in this country he fell in love with
another student; that she returned to Puerto Rico; and that he followed her there in December 1957. Up to that time, he had lived
with his parents in New York City. In April 1958 he was employed
as a teller at a Federal savings and loan association in Miami
Beach, Florida, and reported a shortage in his cash account of
$420. Subsequently, he admitted that he had taken the money and
he returned $410 of the sum. When he was arrested, he was ashamed
to tell his parents in New York City and was represented by a
court-appointed attorney. Apparently the respondent has not been
arrested on any other occasion. During the oral argument, counsel slated that. the respondent's father was naturalized as a United
States citizen on March 0, 1959. None of this information appears
in the record itself, and we must determine the issue of deportability on the basis of the statutory provisions and without regard
to whether there were mitigating circumstances. For the reasons
hereinafter stated, we conclude that the respondent is not deportable
and other contentions of counsel need not be discussed.
8 U.S.C. 1951(a) (4) requires the deportation of any alien who
"is convicted of a crime involving moral turpitude committed within
five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or
more * *." The respondent was committed under the Federal
Youth Corrections Act of September 30, 1950, as amended (18
U.S.C., chapter 402, sections 5005-5026). The question here is
whether this respondent's commitment is within the purview of the
language of S U.S.C. 1251(a) (4).
The word "convicted" in 8 U.S.C. 1251(a) (4) has been construed
to require finality of conviction (Matter of L R , 7 I. & N.
Dec. 318 (Atty. Gen., 1957) ; Matter of 0—, 7 I. & N. Dec. 539
(1957)). In the first case, the Attorney General ruled that the
"conviction" did not satisfy the requirement of the deportation
statute because the sentence had been entered under a provision of
the law of Texas that "neither the verdict of conviction nor the
judgment entered thereon shall become final," except upon final
conviction for another felony. There is also a otatutoey provision
in California which permits a defendant, after completion of probation, to withdraw a plea of guilty or have a verdict of guilty set
aside, after which the court is required to dismiss the accusations or
information against the defendant. Thereafter, the expunged conviction is not a basis for deportation (Al-cater of 0—T------, 4 I. &
N. Dec. 265 (1951)).
361

The Federal Youth Corrections Act contains the following provisions (18 U.S.C. 5021) : "Upon the unconditional discharge by the
Division of a committed youth offender before the expiration of the
maximum sentence imposed upon him, the conviction shall be automatically set aside and the Division shall issue to the youth offender
a certificate to that effect." Hence, if the respondent is - granted an
unconditional discharge before the expiration of the maximum sentence, his conviction will be automatically set aside. Under these
circumstances, there is considerable doubt whether his conviction
may properly be regarded as a conviction with the degree of finality
justifying deportation under 8 U.S.C. 1251(a) (4).
Although some question may exist as to the finality of the respondent's conviction, we do not base our decision on that ground but
rather on the basic similarities between the Federal Youth Corrections Act and the Federal statutory provisions pertaining to
juvenile delinquency. It is well settled that one who has been confined as a juvenile delinquent is not subject to deportation or exclusion because of the offense which was committed (Matter of F
2 I. & N. Dec. 517, 518 (1946)). However, in a decision of the
Central Office of the Service in 1950, it was held that a commitment
to the California Youth Authority was a sentence to imprisonment
(Matter of C.

R

, 4 I_ & N_ Dee_ 136).

During the oral

argument, Matter of L
R
, A-6881251, Int. Dec. No. 985
(Feb. 20, 1959), was cited on behalf of the Service. There we held
that an alien committed to the California Youth Authority was deportable under 8 U.S.C. 1251(a) (11) as one convicted of a narcotic
violation. That case is not entirely pertinent because. 8 U.S.C.
1251(a) (11) requires only a conviction, whereas the statutory provision involved in this respondent's case requires both conviction and
a sentence to confinement for one year or more.
On the other hand, it has been held that minors who were not
tried as juvenile delinquents but who were convicted of crimes and
committed to the New York House of Refuge and the New York
State Vocational Institution had not been sentenced to imprisonment, within the meaning of the 1917 act nor convicted of a crime
involving moral turpitude within the purview of 8 U.S.C. 1251
(a)(4) (United States ex rel. Cerami v. Uhl, 78 F.2d 698 (C.C.A.
2, 1935); Tutrone v. Sh,aughness-y, 160 F. fin pp. 433 (S.D.N.Y.,
1958); Matter of S , 4 I. & N. Dec. 544 (1951) ). In another case
in which a minor was not treated as a juvenile delinquent but was

convicted in criminal proceedings, it was held that he was admissible
notwithstanding the conviction (Matter of O'N—, 2 I. & N. Dec.
319 (1945)). Where an alien pleaded guilty in the Superior Court
of California to a charge of arson and was then turned over to the
Juvenile Court which ordered commitment to a State school, we
362

held that these factor3 indicated that ho had been made a ward of

Juvenile Court and that his plea of guilty in the Superior
Court was not a conviction for the crime of arson (Matter of 7'—,
6 T. & N. Dec. 835 (1955)). These decisions are based on the statutory provisions of the particular jurisdiction, and the respondent's
case must, of course, be decided on the basis of the pertinent
federal provisions.
When Title 18 of the United States Code was enacted into positive
law on June 25, 1948 (62 Stat. 683, 856-858), Part IV was desig-•
nated "Correction of Youthful Offenders" and it was divided into
Chapter 401—General provisions, and Chapter 403—Juvenile delinquency. Chapter 403 was based on the Act of June 16. 1958.
Section 2 of the Act of September 30, 1950 (64 Stat. 1085), amended
Part IV of Title 18 of the United States Code by inserting "Chapter 402—Federal Youth Corrections Act" immediately after Chapter 401. Hence, the context in which the Federal Youth Corrections Act, is found indicates that its provisions and the provisions
concerning juvenile delinquency comprise an integrated plan for
the correction of youthful offenders as shown by the title itself of
Part IV. Under the Federal Youth Corrections Act, a Youth Correction Division was created within the Board of Parole (18 U.S.C.
5005). The Board of Parole and the Bureau of Prisons were separately established agencies within the Department of Justice (18
U.S.C. 4042 and 4201).
18 U.S.C. 5031 provides that a "juvenile" is one who has not
attained his 18th birthday and 18 U.S.C. 5006(e) defines a "youth
offender" as a person under the age of 22 at the time of conviction.
It is significant, however, that throughout the Federal Youth Corrections Act, there is no indication that the commitment is for the
purpose of punishment. On the contrary, there are repeated references to "treatment," which is defined in 18 U.S.C. 5006(g) as
meaning "corrective and preventive guidance and training designed
to protect the public by correcting the antisocial tendencies of youth
offenders."
18 U.S.C. 5006(f) defines "committed youth offender" as one
committed for treatment to the custody of the Attorney General.
the

18 U.S.C. 5011 is entitled "Treatment" and in, in part, as follows;

Committed youth offenders * * * shall undergo treatment in institutions * * *
and other agencies that will provide the essential varieties of treatment. * * *
Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be
segregated according to their needs for treatment.
18 U.S.C. 5014 provides that every committed youth offender shall

first be sent to a classification center which "shall make a complete
study of each committed youth offender, including a mental and
363

physical examination, to ascertain his personal traits, his capabilities,
pertinent circumstances of his school, family life, any previous delinquency or criminal experience, and any mental or physical defect
or other factor contributing to his delinquency. * * "" (Emphasis
supplied.)
18
5010 is entitled "Sentence" and subEieetion . (h), tinder
which the respondent was committed, is as follows:
(b) If the court shall find that a convicted person is a youth offender, and
the offense is punishable by imprisonment under applicable provisions of law
other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody
of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in section 5017(c) of this
chapter ; * * *. (Emphasis supplied.)

From the language of 18 U.S.C. 5010(b), two things are evident.
First, the sentence imposed thereunder is in lieu of the penalty of
imprisonment. Secondly, the court is not required to sentence a
youth offender for treatment and supervision because the statute
states only that he may do so, and 18 IT.S.C. 5010(d) specifically
provides that if the court finds that the youth offender will not derive benefit from treatment under subsection (b) or (c), the court
may sentence the youth offender under any other applicable penalty
provision.

Tn other words, in more flagrant eases, the court could

direct imprisonment of the offender in the usual manner rather
than committing the youth for treatment and supervision.
There is another respect in which commitments of youth offenders
differ from the commitments under the general provisions of the
criminal laws. 18 U.S.C. 4161 provides, in part "Each Prisoner
convicted of an offense against the United States and confined in a
penal or correctional institution, for a definite term other than for
life, whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall
be entitled to a deduction from the term of his sentence * * *."
Although each prisoner confined to a penal or correctional institution for a definite term who has met the behavior requirements
is entitled to a deduction from his sentence, the following specific
statement appears at page 40 of the Rules of the United States
Board of Parole, effective January 1, 1958: "Good time credits are
not earned in the case of those committed under the Youth Corrections Act."
In view of the provisions of the Federal Youth Corrections Act,
prescribing treatment rather than punishment, the situation in the
respondent's case is analogous to that in Holzaptel v. Wyrsch, :259
F.2d 890 (CA. 3, 1958). There an alien was sentenced to confinement in the state reformatory, sentence was suspended, and he was
placed in the custody of the probation officer for 3 years, one of
364

the conditions of probation being that he tahe psychiatric treatment. The sentence was imposed pursuant to the New Jersey Sex
Offenders Act. The court pointed out that such persons are not sentenced as criminals but are given special beneficial treatment, and
it was held that this alien was not deportable under the first clause
of 8 U.S.C. 1251(a) (4).
In Ounninghirm v. United States, 256 F.2d 467, 471-472 (C.A.
5, 1958), the defendant had pleaded guilty to a misdemeanor for
which the maximum sentence was one year. He was committed to
the custody of the Attorney General under the Federal Youth Corrections Act for from 4 to 6 years. At the expiration of one year
from the commencement of his sentence, the defendant instituted
proceedings to obtain his release. He contended that the sentence
was unlawful. The Court of Appeals sustained the validity of the
sentence, stating that this statutory provision is designed to provide
correctional treatment instead of punishment and permits youthful
ulTeuders to escape the ohocko of an ordinary penal sentence_ We
think it is clear from this case that a sentence imposed under the

Federal Youth Corrections Act is not punishment for a crime as
contemplated by the first clause of 8 U.S.C. 1251(a) (4). because if it
were punishment the court would have had to sustain the defendant's
position that the sentence was unlawful. This case also illustrates
the if we were to hold that a sentence under the Federal Youth
rections Act was within the purview of the first clause of 8
T.:..S'.C. 1251(a) (4), the result would be that an adult offender convicted of a crime for which the prescribed penalty or the penalty
imposed, was less than one year would not be deportable whereas
a youthful offender convicted of the same crime and committed to
the custody of the Attorney General under 18 U.S.C. 5010(b) for
an indefinite term (requiring conditional release on or hefore 4

years) would be deportable.
The Supreme Court has said that deportation statutes should be
strictly construed (Barber v. Gonzales, 347 U.S. 637, 642 (1954);
Fong Haw Tan v. Fitelan, 333 U.S. 6, 10 (1948)). On the basis
of the judicial decisions cited and the language of the statutory
provisions involved, it is our considered opinion that the commitment of the respondent to the Attorney General for treatment under
the Federal Youth Corrections Act is not within the purview of the
first clause of S U.S.C. 1251(a) (4) and that he is not deportable
thereunder. Accordingly, the proceedings will be terminated.
Order: It is ordered that the appeal be sustained; that the order
of deportation be withdrawn ; and that the proceedings be terminated.

365


Interim Decision #1668

MATTER or
In

WAR

MEMORIAL HOSPITAL

Visa Petition Proceedings
DET-11--3004

Deckled by Regional Commissioner September 8, 1966
A Canadian pathologist of distinguished merit and ability, who from time to
time will cross the border to a neighboring hospital in Michigan, when that
hospital's regular pathologist is away, to perform only isolated pathological
services which cannot be delayed until the return of the staff pithqlogist r
(1) iselgbfornmaitcls onuderti10(a)5H
of the Immigration and Nationality Act, since he win perform only isolated

emergent pathological services and will not occupy the position of pathologist, which is a permanent one, in the absence of the staff pathologist.

The case is on appeal from the Acting District Director's denial of
the petition' to classify a nonimmigrant as an 'alien of distinguished
merit and ability to perform temporary services of an exceptional
nature.

The petitioner, War Memorial Hospital, is a general hospital located in Sault Ste. Marie, Michigan. The hospital desires to employ
the services of the beneficiary of the petition as a pathologist in emergencies when the hospital's regular.pathologist is not available.
The beneficiary, Dr. Fredric Percival Sparks, is a citizen of Canada, born in that country on October 16, 1901. Evidence has been
• presented that he received the degree of doctor of medicine from the
University of Alberta, Canada, on May 16, 1933; that he is a registeredlicentiate of the Medical.Council of Canada; and that he was
issued a Specialist Certificate in pathology and bacteriology by the
Royal College of Physicians and Surgeons of Canada on February 1,
1947. He resides in Sault Ste. Marie, Ontario, and is a pathologist
at Plummer Hospital in that city ; which is across the border from
Sault Ste. Marie, Michigan.

Dr. Sparks would be employed irregularly for emergency pathological work when the petitioner's regular pathologist is away, for
example,- for medical seminars or for short periodi of vacation. Dr.
Sparks would be paid from the petitioner's laboratory fund at the
-896

Interim Decision #1668
rate of $75 per autopsy and $10 per tissue examination. He would.
return to his post at Plummer Hospital in Sault Ste. Marie, Ontario,
upon completion of each emergency procedure.
The Acting District Director denied the petition on the ground
. that the work to be performed in. the United States is not temporary
in nature, in that the position is a permanent one and the petitioner's
desire to use the beneficiary for irregular service on emergency work
does not alter the permanent character of the position.
On appeal, the petitioning hospital states that there is no other
pathologist in the area upon whom it can call; that Dr. Spark's services would: be used three to six times a year to take care of emergency
surgical sped:ions only, and an occasional autopsy, during the absence of the regular pathologist; and that routine specimens accumulated during the latter's absence are processed by him after his
return.
Section 214(c) of the Immigration and Nationality Act provides
for the importation of an alien as a nonimmigrant under section
101(a) (15) (H) upon the petition of the importing employer. Section 101(a) (15) (H) defines such alien insofar as pertinent here as
follows:
An alien having a residence in a. foreign country which be has no intention
of abandoning (i) who is of distinguished merit and ability and who is
coming temporarily to the 'United States to perform temporary services of an
exceptional nature requiring such merit and ability; ... .

The petition and the supporting documents before us estsblish that
the beneficiary of the petition has a residence in a foreign country
which he has no intention of abandoning; that he is of distinguished
merit and ability; that he would be cominitecmporarily to the ;United
States; ind. that the *vices he would be coming to perform are of .
an exceptional nature requiring such merit and ability. The only
question to. be resolved is whethr • those services are temporary in
nature.
While the position of pathologist at the petitioning hospital must
be considered to be a permanent one, the beneficiary will not occupy
that position when the staff pathologist is away. He will perform
from time to time only isolated pathological services which are .emergant and cannot be delayed. until the return of the staff pathologist.
Therefore, we conclude that the services the beneficiary would perform are temporary services within the meaning of section 101(a)
(15) (H) cited above.
Since the requirements ofthe statute have been met, the petition is
approvable. Accordingly, the following order will be entered:
It is ordered that the petition be approved.
-

897


Interim Decision #2301

MATTER OF MOMBO

In Deportation Proceedings
A-12239144
Decided by Board July 2, 197.4.
(1) Respondent, who entered the United States in 1960 as an exchange visitor, and who
has not been granted a waiver of the foreign residence requirement applicable to
exchange visitors, is precluded by the provisions of section 244(0(2) of the Immigration
and Nationality Act, as amended, from establishing statutory eligibility for suspension
of deportation.
(2) Respondent, an exchange visitor who participated in an educational program which
was financed in part by the United States Government, is precluded by the provisions of
section 212(eX0 of the Act, as amended, from establishing eligibility for adjustment of
status under section 245 of the Act, since he has not "resided and been physically
present in the country of his nationality or his last residence for an aggregate of at least
two years following departure from the United States."
(5) Neither the immigration judge nor the Board of Immigration Appeals has authority to
grant, or to review the denial of, a waiver of the two-year foreign residence requirement of section 212(e) of the Act, as amended. [Matter of Han, 10 I. & N. Dec. 53;
Matter of Rosenblatt, 10 1. & N. Dec. 154; and Matter of Irie, 10 I. & N. Dec. 372,
reaffirmed.)
CHARGE:
Order: Act of 1952---Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Exchange visitor—
remained longer.
ON BEHALF OF RESPONDENT:
Austin T. Fragomen, Jr., Esquire
Elmer Fried, Esquire
515 Madison Avenue
New York, New York 10022

ON BEHALF OF SERVICE:

Paul C. Vincent
Appellate Trial Attorney

In a decision dated March 16, 1973, the immigration judge found the
respondent deportable as charged, denied his application for suspension
of deportation, denied his application for adjustment of status, but
granted him the privilege of departing voluntarily from the United
States within 106 days in lieu of deportation. The respondent has appealed from that decision. The appeal will be dismissed.

Interim Derision #2301
The respondent is a native and citizen of Liberia who entered the
United States in 1960 as an exchange visitor pursuant to section
101(a)(15)(J) of the Immigration and Nationality Act. He participated in
an educational program which was financed in part by the United States
Government; (Tr. p. 4). The respondent has conceded deportability as a
nonimmigrant who remained beyond the authorized length of his stay.
The only issues on appeal involve his eligibility for suspension of deportation and adjustment of status under sections 244 and 245, respectively, of the Act.
Section 244(f)(2) of the Act provides that the provisions relating to
suspension of deportation shall not be applicable to an alien who was
admitted to the United States pursuant to section 101(a)(15)(J) of the
Act. Therefore, we agree with the immigration judge that the respondent is not eligible for suspension of deportation under section 244.
In order to show eligibility for adjustment of status under section 245
of the Act, an alien must establish, among other things, that he is
eligible to receive an immigrant visa and that he is admissible to the
United States for permanent residence. Section 212(e)(i) of the Act
provides, in part, that a person who was admitted to the United States
under section 101(a)(15)(J) of the Act, and who participates in a program

financed wholly or partially by an agency of the United States Government, shall not be eligible to apply for an immigrant visa or permanent
residence until he has resided and been physically present in the country of his nationality or last residence for an aggregate of at least two
years following departure from the United States. The respondent has
not met this requirement. We agree with the immigration judge that the
respondent is not eligible for adjustment of status under section 245 of
the Act.
Under certain circumstances, the Attorney General may waive the
two -year foreign residency requirement of section 212(e), thus removing that ground of ineligibility for an immigrant visa. The Attorney
General's authority to grant such a waiver has been delegated to the
district director. See 8 CFR 103.1(f). The respondent applied for a
waiver under section 212(e), and in a letter dated February 10, 1969, the
district director denied that application. The immigration judge concluded that he had no authority to review the district director's denial of
the waiver. On appeal, counsel contends that the immigration judge

erred in reaching that conclusion.
We have held that neither the immigration judge nor the Board has
authority to grant, or to review the denial of, the waiver contained in
section 212(s) of the Act. Matter of Irie, 10 I. & N. Dec. 372 (BIA, 1963);
Matter of Rosenblatt, 10 I. & N. Dec. 154 (BIA, 1963); Matter of Han,
10 I. & N. Dec. 53 (BIA, 1962). Counsel has asked us to overrule our
prior decisions. Upon consideration of the contentions advanced by
2

Interim Decision #2301
counsel in his briefs and during oral arguments, we conclude that the
position we took in Irie, Rosenblatt, and Han was correct and should be
reaffirmed.'
We note that the immigration judge granted the respondent more
than three months in which to depart voluntarily from the United
States, in order to allow sufficient time for the processing of another
application for a waiver of the two-year foreign residence requirement.
Since more than a year has paassed since the immigration judge's
decision, the respondent has certainly had abundant time to pursue his
application for a waiver. We have received no information to indicate
that such a waiver has been obtained.
The immigration judge's decision was correct. The appeal will be
dismissed.
ORDER: The appeal is dismissed.

Further order: Pursuant to the immigration Judge's order, the re-

spondent is permitted to depart from the United States voluntarily
within 106 days from the date of this order or any extensions beyond
that time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

' Section 212(e) of the Act was amended in 1970. That amendment, however, has no
effect on our holding that the immigration judge and the Board both lack jurisdiction over
waiver applications under section 212(e). Jurisdiction to review a district director's denial
of an application for a waiver under section 212(e) Is now specifically vested in the
Regional Commissioner. 8 CFR 212.7(c); 8 CFR 103.1(e)(9).

3


Cite as 27 I&N Dec. 1 (BIA 2017)

Interim Decision #3887

Matter of Pedro Josue JIMENEZ-CEDILLO, Respondent
Decided April 6, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(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 significant, 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) Sexual 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, Esquire, 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 departure with an alternate order of
removal. The respondent has appealed from that decision. The appeal 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 sentenced
1

Cite as 27 I&N Dec. 1 (BIA 2017)

Interim Decision #3887

to a term of imprisonment of 2 years, with 1 year and 6 months suspended.
At a hearing before the Immigration Judge, the respondent conceded that
he is removable 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 been
convicted of a crime involving moral turpitude. The Immigration Judge
found him removable on both grounds.

II. 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 the respondent was
convicted under the following provision 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, section
3-307(a) of the Maryland Criminal Law provided 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. threaten, 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 if 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 least 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.

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The respondent argues 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 is a categorical crime involving moral
turpitude because all violations of the statutes 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 question 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, 24 I&N Dec. 687, 689 n.1 (A.G. 2008).
To determine whether the respondent’s offense is a crime involving
moral turpitude, we employ the categorical approach, which requires 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 the 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 involving 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 respondent
was convicted of violating.” Id. at 833. We may then consider whether
that “portion of the statute is a categorical match to the federal generic
definition.” Larios-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. Section

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3-324(b) requires that a violator “knowingly 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 828 n.2, 834.
Further, moral turpitude inheres in all violations of section 3-307.
Sections 3-307(a)(1) and (2) necessarily involve sexual contact with a
victim whose 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) (holding 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 sexual relations with a
woman with the knowledge that her “mental powers are impaired to an
extent negativing the idea of consent” is 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 conduct 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 there was a
reasonable mistake as to the victim’s age. See Moore v. State, 882 A.2d
256, 268 (Md. 2005). Because these sections do not require the perpetrator
to have a culpable mental state regarding the age of the victim, the
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 the
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 victim . . . are crimes involving moral turpitude”). While we held in
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 of age defense).

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victim was a minor, our decision did not foreclose the possibility that moral
turpitude will inhere in some crimes, even if the relevant statute lacks an
element that requires the perpetrator to have some culpable mental state
regarding the victim’s age. Id. at 834.
The United 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. Attorney
General 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 of
community consensus that certain conduct should not be permitted with children
under a certain age. . . .
Thus, the 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 (emphases added) (footnote and citations omitted).
We therefore clarify our decision in Matter of Silva-Trevino and now
hold that 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 significant, or both,
even though the statute requires no culpable mental state as to the age of the
child.
Because such offenses contravene society’s interest in protecting
children from sexual exploitation, we conclude that they are reprehensible.
See Matter of Olquin, 23 I&N Dec. 896, 897 (BIA 2006) (“Sexual
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, whether or not the
child 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”). We also conclude
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that as the age gap between a victim under 16 and an older perpetrator
increases, the more reprehensible the offense becomes. 2
Further, where a statute criminalizing sexual conduct with a minor
necessarily involves either a particularly young victim or a significant age
difference between the perpetrator and a victim under 16 years of age, the
culpable mental state element for 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.
The 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 older. By contrast, under section 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. While sections 3-307(a)(4) and
(5) reach relatively older victims (under 16 years of age), these provisions
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 involving moral turpitude.
Finally, we note that a defendant may be convicted under section
3-324(b) for knowingly soliciting a law enforcement officer who is posing
as a minor to engage in sexual activity. We understand such an act to be
equivalent to an attempt to engage an 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).
It 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, 428 (BIA 2011); see also, e.g., Reyes v. Lynch, 835 F.3d 556, 560 (6th
Cir. 2016) (holding that solicitation of prostitution is 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”).

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moral turpitude because the underlying offense of prostitution is
turpitudinous); 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 that
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). The 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: The respondent is ordered removed from the
United States to Mexico pursuant to the Immigration Judge’s alternate
order of removal.

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