The Immigrant in this case knowingly solicited a “minor.” The “minor” in this case was a police officer posing as a 14-year-old deaf girl. The Immigration Judge determined that the Maryland offense involved moral turpitude and continued to pretermit the respondent’s cancellation of removal application. The BIA agreed.
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.
But the Fourth Circuit remanded because they believed the BIA had “abandoned the Silva-Trevino rule that an offense must require proof of a culpable mental state as to the victim’s age in order to qualify as a crime involving moral turpitude” and they wanted the BIA to provide a reasoned basis for the seemingly abrupt change.
According to the BIA on remand, they did recognize the prior rule that “a crime involving intentional sexual conduct by an adult with a child involves moral turpitude as long as the perpetrator knew or should have known that the victim was a minor.” Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016) (“Silva-Trevino III”) (emphasis added).
However, the BIA claimed that the “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 age.”
The BIA then went on to compare the Maryland statute at issue to statutory rape, child pornography and strict liability under the federal statute that criminalizes online enticement of children under the age of 18 years of age (18 U.S.C. § 2422(b) (2012)). As the BIA pointed out, moral turpitude has been found in those types of crimes.
Therefore, the BIA reaffirmed – but prospectively – so the respondent in that case was still eligible to apply for cancellation of removal, though this will be a very difficult case for him to win based on discretion.