OLQUIN

Cite as 

 (BIA 2006)                              Interim Decision #3529




             In re Jose Luis OLQUIN-Rufino, Respondent
                            File A79 441 486 - Orlando
                             Decided March 23, 2006
                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals

  The offense of possession of child pornography in violation of section 827.071(5) of
the Florida Statutes is a crime involving moral turpitude.
FOR RESPONDENT: George J. DeFabio, Esquire, Coral Gables, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Alexandra Rivas, Assistant
Chief Counsel

BEFORE: Board Panel: HOLMES, HURWITZ, and MILLER, Board Members

HURWITZ, Board Member:

  The respondent is a native and citizen of Mexico who was convicted in 2003
of possession of child pornography in violation of section 827.071(5) of the
Florida Statutes. In a decision dated February 12, 2004, an Immigration Judge
found that the respondent was removable and ineligible for relief on the basis
of his conviction. The respondent has appealed from that decision,
specifically contesting the Immigration Judge’s determination that he was
convicted of a crime involving moral turpitude. The appeal will be dismissed.
  We have held that moral turpitude refers generally 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 Torres-Varela, 

 (BIA 2001); Matter of L-V-C-, 

 (BIA 1999); Matter of Tran, 

 (BIA 1996); Matter
of Danesh, 

 (BIA 1988). In determining whether a crime
involves moral turpitude, the specific statute under which the conviction
occurred is controlling. See Matter of Khourn, 

 (BIA
1997); Matter of Franklin, 

 (BIA 1994). If the statute
defines a crime in which turpitude necessarily inheres, then, for immigration
purposes, the offense is a crime involving moral turpitude. Matter of Short,

 (BIA 1989).
  The statute in question in this case makes it unlawful for a person to
“knowingly possess a photograph, motion picture, exhibition, show,
representation, or other presentation which, in whole or in part, he or she

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 (BIA 2006)                                   Interim Decision #3529




knows to include any sexual conduct by a child.” 

(5)
(West 2003). Sexual conduct by a child is defined under Florida law as
follows:
      “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual
      intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd
      exhibition of the genitals; actual physical contact with a person’s clothed or unclothed
      genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to
      arouse or gratify the sexual desire of either party; or any act or conduct which
      constitutes sexual battery or simulates that sexual battery is being or will be
      committed. A mother’s breast feeding of her baby does not under any circumstance
      constitute “sexual conduct.”

(g) (West 2003).1
  In a case involving the production of child pornography, the United States
Supreme Court stated that the sexual abuse of a child is a most serious crime
and “an act repugnant to the moral instincts of a decent people.” Ashcroft v.
Free Speech Coalition, 

 (2002). Although this case does
not address the issue of moral turpitude directly, it does recognize the serious
offense to our ethics and accepted moral standards that child pornography
presents. Furthermore, the language employed by the Court is similar to that
which we have used when making a determination regarding moral turpitude.
See Matter of Franklin, supra; Matter of Short, supra; Matter of Danesh,
supra; Matter of Flores, 

 (BIA 1980). The Supreme Court
has also acknowledged that child pornography is intrinsically related to the
sexual abuse of children because, as a permanent record of a child’s abuse, the
circulation of child pornography continues to harm the child’s reputation and
emotional well-being. Ashcroft v. Free Speech 

; New
York v. Ferber, 

 (1982).
  The primary concern of statutes banning child pornography is to lessen the
harm suffered by children. United States v. Tillmon 

 (11th
Cir. 1999). 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 Schmitt v. State, 

 (Fla. 1991).



1
  In Schmitt v. State, 

 (Fla. 1991), the Florida Supreme Court found
unconstitutionally overbroad that portion of the statute that criminalizes certain acts or
depictions involving “actual physical contact with a person’s clothed or unclothed genitals,
pubic area, buttocks, or, if such person is female, breast.” However, the court also found
that the unconstitutional portion of the statute was severable and that the remainder of the
statute was therefore valid.

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 (BIA 2006)                   Interim Decision #3529




  In light of the foregoing, we agree with the Immigration Judge that the
offense of possession of child pornography is morally reprehensible and
intrinsically wrong. We therefore concur that the respondent was convicted
of a crime involving moral turpitude. Accordingly, the respondent’s appeal
will be dismissed.
  ORDER: The appeal is dismissed.




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