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4th Circuit: Maryland willful contribution to act, omission, or condition that renders child in need is sexual abuse of minor

In an unpublished opinion, the 4th Circuit held that a Maryland conviction for “willfully contributing to an act, omission, or condition that renders a child in need of assistance,” Md. Code. Ann., Cts. & Jud. Proc. § 3-828, constitutes an aggravated felony.  Rivera-Rondon v. Holder, No. 08-1683, slip op. at 3 (Aug. 3, 2009) (per curiam) (unpublished).  Specifically, the 4th Circuit concluded that the non-citizen’s conviction constitutes sexual abuse of a minor, a category of aggravated felony listed at INA § 101(a)(43)(A).

The 4th Circuit provided an excellent summary of Rivera’s conviction:

Rivera was convicted of violating § 3-828(a) of the Maryland Courts and Judicial Proceedings Code, which provides that “[a]n adult may not willfully contribute to, encourage, cause or tend to cause any act, omission, or condition that renders a child in need of assistance.” A “[c]hild in need of assistance” is  a child who requires court intervention because:  (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and  (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.  Md. Code Ann., Cts. & Jud. Proc. § 3-801(f) (emphasis added). As used in § 3-801, “abuse” means “(1) [s]exual abuse of a child, whether a physical injury is sustained or not; or (2) [p]hysical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or is at substantial risk of being harmed by [a parent or household member].” Md. Code Ann., Cts. & Jud. Proc. § 3-801(b) (2009) (emphasis added). “Sexual abuse,” in this context, “means an act that involves sexual molestation or sexual exploitation of a child by . . . [a] parent or other individual who has permanent or temporary care or custody or responsibility for supervision of the child . . . or . . . [a] household family member.” Md. Code Ann., Cts. & Jud. Proc. § 3-801(x)(1).

Rivera-Rondon v. Holder, No. 08-1683, slip op. at 7-8.

By examining the plea colloquy, the 4th Circuit concluded that his conviction was based on a sexual incident involving his 8-year-old daughter.   Rivera-Rondon v. Holder, No. 08-1683, slip op. at 11.  Interestingly, Rivera’s defense attorney stated on the record during the plea colloquy that nothing in the plea agreement should be understood as an admission by Rivera that he committed sexual abuse of a minor for immigration purposes.   Rivera-Rondon v. Holder, No. 08-1683, slip op. at 8-9.  The 4th Circuit dismissed this statement as “self-serving” and effectively irrelevant.   Rivera-Rondon v. Holder, No. 08-1683, slip op. at 11.

Accordingly, the 4th Circuit determined that Rivera’s conviction under § 3-801 does constitute sexual abuse of a minor.

There are three small rays of hope in this decision.  First, it’s an unpublished decision.  Nonetheless, while it’s not binding, it still holds some weight with IJs.  Second, the 4th Circuit’s analysis is highly fact-specific.  It used a modified categorical approach to look at the plea colloquy in detail.  Only by doing that was it able to reach its conclusion.  Perhaps the Court would have decided differently had the transcript of the plea hearing not identified a specific sexual incident.  Lastly, the Maryland statute allows for convictions that do not involve sexual acts at all.  Thus, this case should not be read as a statement that all—or even most—convictions under § 3-828 constitute sexual abuse of a minor.

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