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BIA Holds That Sex Offense Violating A Statute Enacted To Protect Children Is A Crime Involving Moral Turpitude (CIMT) Where the Victim Is Particularly Young – Under 14 – Or Is Under 16 And the Age Difference Between the Perpetrator And Victim Is Significant, Or Both, Even Where The Law Does Not Require A Culpable Mental State As to the Child’s Age. As Such, Sexual Solicitation Of A Minor Per Maryland Criminal Law §3-324(b) With Intent To Engage In Unlawful Sexual Conduct In Violation Of §3-§307 Is A Categorical CIMT.

May 1, 2017 Philip Levin

On April 6, 2017, the Board of Immigration Appeals (BIA or Board) held a respondent’s offense to be a categorical crime involving moral turpitude (CIMT) where all violations of the pertinent statute involve either a very young victim (under 14) or a substantial age difference between the adult defendant and a minor victim under 16.

Respondent was convicted of Maryland Criminal Law (MCL) §3-324 (sexual solicitation of a minor) and the Immigration Judge (IJ) had found him removable as, among other grounds, one convicted of a CIMT. On appeal, he argued his conviction did not so qualify. In its initial analysis, the BIA noted that the parties agreed the law is divisible and that respondent had been convicted under §3-324(b), prohibiting knowingly soliciting a minor or law enforcement officer, posing as a minor, with intent to violate MCL §3-307, to engage in acts violative of §3-307. In turn, the Board quoted §3-307(a) in full, which criminalizes sexual conduct with another without his or her consent in a variety of circumstances, including the use of a dangerous weapon; harming or inflicting severe physical injury; threating or placing in fear of  death, harm, or severe physical injury; or, while assisted by another. The section also criminalizes sexual contact with “a mentally defective”, “mentally incapacitated” or “physically helpless” individual where the perpetrator knows or should know of the impairment; sexual contact with one under 14 and the defendant is at least 4 years older; a sex act with a 14 or 15 year-old where the perpetrator is at least 21; and, vaginal intercourse with a 14 or 15 year-old where the defendant is at least 21. Given this, the Board cited Matter of Silva-Trevino, 24 I&N Dec. 286 (BIA 2016) for the general rule that CIMTs require both reprehensible conduct and a culpable mental state. Further, the decision stated that in determining whether an offense is a CIMT, the BIA uses the categorical approach, focusing on the elements of the criminal statute rather than the facts of the particular violation; where the statute is divisible the Board examines the record of conviction to identify the exact provision violated and then considers whether that portion of the statute “is a categorical match to the federal generic definition.”

In finding respondent’s violation to be a categorical CIMT, the BIA first noted that §3-324(b) requires a knowing solicitation of a minor, a culpable mental state fitting a generic CIMT. Additionally, §3-307 involves turpitudiouos sexual contact without consent, as well as intentional sexual acts or conduct with a minor under 16, clearly CIMTs. Responding to respondent’s argument that those parts of the law that do not require a culpable mental state as to the victim’s age do not categorically define a CIMT, the opinion looked to the Third Circuit’s reasoning in Mehboob v. Attorney General of the U.S., 549 F.3d 272 (3d Cir. 2008), which held that strict liability morality offenses like indecent assault are CIMTs “because of the community consensus that such offenses, which are enacted for the protection of the child, are inherently antisocial and depraved.”

Thus, because sex offenses against minors contravene society’s interest in protecting children and any type of sexual misconduct with a child intrudes on the victim’s rights, the BIA held that a sex offense in violation of a law enacted to protect children is a CIMT where the victim is particularly young – under 14 – or is under 16 and the age difference between the perpetrator and victim is significant, or both even though the statute requires no culpable mental state as to the child’s age. The Board collaterally held that where a criminal law prohibiting sexual conduct with a minor involves either a particularly young victim or a significant age differential with the child being younger than 16, the culpable mental state for a CIMT is implicitly satisfied by the commission of the proscribed act. As a result, all parts of §3-307 categorically fit within the generic definition of a CIMT.

The BIA therefore dismissed the appeal and, upon finding respondent had not submitted proof that his voluntary departure bond had been paid as ordered by the IJ, refused to reinstate voluntary departure. Instead, it ordered respondent removed. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017).

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

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Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.