By: Sarah Flinn
The U.S. Court of Appeals for the Ninth Circuit, using the categorical approach, recently determined that the California statute regarding the possession of child pornography, California Penal Code § 311.11(a), is broader than the federal statute and therefore is not considered to be an aggravated felony for purposes of INA § 237(a)(2)(A)(iii) and § 101(a)(43)(I). Chavez-Solis v. Lynch, No. 11–73958, 2015 WL 5806148, at *1, *2 (9th Cir. Oct. 6, 2015).
Oscar Chavez-Solis, a native and citizen of Mexico, has been a lawful permanent resident of the United States since 1999. Id. at *1. In 2011, after pleading nolo contendere to charges of possessing or controlling child pornography in violation of California Penal Code § 311.11(a), Mr. Chavez-Solis was sentenced to 150 days’ imprisonment. Id. Subsequently, the Department of Homeland Security charged Mr. Chavez-Solis with removability under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony. Id. The INA definition of aggravated felony includes offenses relating to child pornography as defined in 18 U.S.C. §§ 2251, 2251A, or 2252. See INA § 101(a)(43)(I).
The Immigration Judge held that Mr. Chavez-Solis’s conviction constituted an aggravated felony under the definition of INA § 101(a)(43)(I), thereby making him removable. Id. By comparing the California statute of conviction to the definition of child pornography used for purposes of federal law, the Immigration Judge concluded that the essential elements of Cal. Penal Code § 311.11(a) and 18 U.S.C. § 2252(a)(4)(B) are essentially the same. Indeed, the Immigration Judge described the two statutes as so broad as to be “virtually identical….” Id. The Board of Immigration Appeals (BIA) agreed. It concluded that the offense described by California Penal Code § 311.11(a) has the same essential elements as the elements of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). Id. Consequently, the BIA held that a violation of California Penal Code § 311.11(a) is an offense described in 18 U.S.C. § 2252 and is therefore an aggravated felony. Id.
Following the BIA’s decision to dismiss his appeal, Mr. Chavez-Solis appealed to the Ninth Circuit. Id. at *2. Because the question of “[w]hether an offense is an aggravated felony for removal purposes is a question of law,” the Court of Appeals reviewed the case de novo. Id. (citing Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011)). Using the categorical approach outlined in Taylor v. United States, 495 U.S. 575 (1990), the Ninth Circuit evaluated whether a state law child pornography conviction is an aggravated felony as defined in INA § 101(a)(43)(I). Id. In using the categorical approach, the court compared the elements of California Penal Code § 311.11(a) with those in 18 U.S.C. § 2252(a)(2), which addresses receipt, distribution, or reproduction of putatively pornographic material, and 18 U.S.C. § 2252(a)(4)(B), which criminalizes possession of or access to child pornography. In particular, the court addressed important language that appears in both federal criminal statutes: “the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and such visual depiction is of such conduct.” Perhaps because the key language appears in both, the court’s analysis revolves almost exclusively around 18 U.S.C. § 2252(a)(4)(B) and there is no additional mention of § 22(a)(2). Id.
The Ninth Circuit concluded that while the federal and state statutes overlap in many respects, California Penal Code § 311.11(a) prohibits a broader range of depictions of “sexual conduct” than 18 U.S.C. § 2252(a)(4)(B) and therefore does not qualify as an aggravated felony for purposes of INA § 101(a)(43)(I). Id. at *3, *9. Both statutes require possession or control of the pornography; both require the depiction of an actual minor and define a minor as a person under age 18; and both statues define sexual conduct to include much of the same conduct. Id. at *3. However, the Ninth Circuit concluded that California Penal Code § 311.11(a) is broader than the federal statute because of the California statute’s expansive definition of “sexual conduct.” As dictated by § 311.11(a), California criminal law defines “sexual conduct” to include “any lewd or lascivious sexual act as defined in Section 288” of the California Penal Code. Section 288, in turn, is itself very broad, including sexually explicit conduct that is not punished by the federal statutes.
The federal definition of sexually explicit conduct includes only five types of conduct: (i) sexual intercourse, (ii) bestiality, (iii) masturbation, (iv) sadistic or masochistic abuse, and (v) lascivious exhibition of the genitals or pubic area. Id. On the other hand, section 288 prohibits “any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child. Id. at *4. Section 288’s definition is not enumerated and the court relies on the difference between the federal definition that requires “lascivious exhibition of the genitals or pubic area” as compared to section 288’s “any lewd or lascivious act” in finding the California statute to be categorically overinclusive. Id.
The government argued that Mr. Chavez-Solis failed to show a realistic probability that a defendant would ever be convicted under California Penal Code § 311.11(a) for possessing a depiction of a lewd or lascivious sexual act as defined in California Penal Code § 288. Id. However, Mr. Chavez-Solis is not required to present an example of an actual prosecution in demonstrating the realistic probability but instead may rely on the statutory language if “a state statute explicitly defines a crime more broadly” than the federal statute. Id. at *5 (citing United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)). California Penal Code § 311.11(a) prohibits the possession of depictions of minors “engag[ed] in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4,” which refers to the lewd or lascivious sexual acts defined in California Penal Code § 288. Id. As stated above, the definition of California Penal Code § 288 is broader in scope than the federal definition, and so relying on Grisel and Vidal, the court concluded that there is a realistic probability that a California prosecutor could bring criminal charges against someone who has engaged in conduct that is not considered “sexual conduct” under the federal statutes referenced by the aggravated definition. Id.
Despite the fact that Mr. Chavez-Solis need not point to any actual prosecution to satisfy the reasonable probability requirement, People v. Wallace, 14 California Rptr. 2d 67, 71 (California Ct. App. 1992), demonstrates that there is an actual probability of prosecution under California Penal Code § 311.4(d) for a conduct that constitutes a lewd or lascivious sexual act for purposes of California criminal law but does not constitute “sexual conduct” for purposes of the pornography category of aggravated felonies. Id. Wallace was prosecuted under California Penal Code § 311.4(c), another statute that relies on § 311.4(d)’s definition of “sexual conduct.” Id. The court in Wallace determined that there was sufficient evidence to convict because a lewd or lascivious sexual act satisfies the requirements of § 311.4(d) even if there is not a lascivious exhibition of the genitals or pubic area. Id. at *6. Conversely, the federal statute requires lascivious exhibition of the genitals or pubic area of any person and is therefore narrower than the sexual conduct defined in § 311.4(d). Id. at *2, *7. Therefore, Wallace demonstrates that there is a realistic probability that California Penal Code § 311.11(a) will be applied to conduct not described in the federal statute. Id. at *7.
The Ninth Circuit also considered whether the modified categorical approach is applicable in this situation. Id. Courts use the modified categorical approach when the state statute of conviction is divisible, meaning it “lists multiple, alternative elements, and so effectively creates several different . . . crimes.” Id. (citing Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014) (alterations in original)). The court determined that the modified categorical approach was not applicable because the definition of sexual conduct in California Penal Code § 311.11(a) does not create different crimes but instead lists different ways in which an image may be considered to depict sexual conduct that qualifies the image as child pornography. Id. In other words, the California statute lists multiple means of committing the same offense rather than alternative elements that operate as distinct crimes.
Therefore, because the Ninth Circuit determined that the California statute under which Mr. Chavez-Solis was convicted is overly broad in respect to the definition of sexual conduct used for purposes of immigration law, it concluded that his conviction did not qualify as an aggravated felony. Id. at *9. Consequently, he is not removable under INA 237(a)(2)(A)(iii). Id. Mr. Chavez-Solis’s case was remanded for further proceedings consistent with the court of appeals’ findings. Id.
Sarah Flinn is a current 2L student at the University of Denver Sturm College of Law. She is currently completing an externship with the Denver District Attorney’s Office in the Family Violence Unit. Ultimately, she hopes to work in the field of immigration law helping Latina youth in the United States.