JIMENEZ-CEDILLO

Cite as 

 (BIA 2017)                                   Interim Decision #3887




     Matter of Pedro Josue JIMENEZ-CEDILLO, Respondent
                                Decided April 6, 2017

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


(1) 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. Matter of Silva-Trevino, 

 (BIA 2016),
   clarified.
(2) Sexual solicitation of a minor under section 3-324(b) of the Maryland Criminal Law
   with the intent to engage in an unlawful sexual offense in violation of section 3-307 is
   categorically a crime involving moral turpitude.
FOR RESPONDENT: Eduardo V. Gonzalez, Esquire, Salisbury, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Carrie E. Johnston, Senior
Attorney
BEFORE: Board Panel: PAULEY, MULLANE, and GREER, Board Members.
PAULEY, Board Member:


   In a decision dated October 8, 2015, an Immigration Judge found the
respondent removable under section 212(a)(2)(A)(i)(I) of the Immigration
and Nationality Act, 

(a)(2)(A)(i)(I) (2012), as an alien who
has been convicted of a crime involving moral turpitude, and section
212(a)(6)(A)(i), as an alien who is present in the United States without
being admitted or paroled.        The Immigration Judge granted the
respondent’s request for voluntary departure with an alternate order of
removal. The respondent has appealed from that decision. The appeal will
be dismissed, and the respondent will be ordered removed from the United
States.

              I. FACTUAL AND PROCEDURAL HISTORY
   The respondent is a native and citizen of Mexico. On February 11,
2015, he was convicted of sexual solicitation of a minor in violation of
section 3-324 of the Maryland Criminal Law, for which he was sentenced

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to a term of imprisonment of 2 years, with 1 year and 6 months suspended.
At a hearing before the Immigration Judge, the respondent conceded that
he is removable under section 212(a)(6)(A)(i) of the Act but contested his
removability under section 212(a)(2)(A)(i)(I) as an alien who has been
convicted of a crime involving moral turpitude. The Immigration Judge
found him removable on both grounds.

                                   II. ANALYSIS
    On appeal, the respondent contends that his conviction for sexual
solicitation of a minor under Maryland law is not for a crime involving
moral turpitude. The parties agree that section 3-324 of the Maryland
Criminal Law is divisible and do not dispute that the respondent was
convicted under the following provision at section 3-324(b):

       A person may not, with the intent to commit a violation of . . . § 3-307 of this
     subtitle . . . , knowingly solicit a minor, or a law enforcement officer posing as a
     minor, to engage in activities that would be unlawful for the person to engage in
     under . . . § 3-307 of this subtitle . . . .

(Emphases added.) At the time of the respondent’s offense, section
3-307(a) of the Maryland Criminal Law provided as follows:

       A person may not:
         (1) (i) engage in sexual contact with another without the consent of the other;
       and
           (ii) 1. employ or display a dangerous weapon, or a physical object that the
         victim reasonably believes is a dangerous weapon;
              2. suffocate, strangle, disfigure, or inflict serious physical injury on the
           victim or another in the course of committing the crime;
              3. threaten, or place the victim in fear, that the victim, or an individual
           known to the victim, imminently will be subject to death, suffocation,
           strangulation, disfigurement, serious physical injury, or kidnapping; or
              4. commit the crime while aided and abetted by another;
         (2) engage in sexual contact with another if the victim is a mentally defective
       individual, a mentally incapacitated individual, or a physically helpless
       individual, and the person performing the act knows or reasonably should know
       the victim is a mentally defective individual, a mentally incapacitated individual,
       or a physically helpless individual;
         (3) engage in sexual contact with another if the victim is under the age of
       14 years, and the person performing the sexual contact is at least 4 years older
       than the victim;
         (4) engage in a sexual act with another if the victim is 14 or 15 years old, and
       the person performing the sexual act is at least 21 years old; or
         (5) engage in vaginal intercourse with another if the victim is 14 or 15 years
       old, and the person performing the act is at least 21 years old.

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    The respondent argues that his State statutes of conviction reach
consensual sexual conduct and do not require that a violator possess any
culpable mental state regarding the age of the victim. The Department of
Homeland Security counters that although the Maryland law lacks these
elements, the respondent’s offense is a categorical crime involving moral
turpitude because all violations of the statutes necessarily involve either a
very young victim—that is, a child under 14 years of age—or a substantial
age difference between an adult perpetrator and a minor victim under the
age of 16. Whether sexual solicitation of a minor is a crime involving
moral turpitude is a question of law that we review de novo. 

(d)(3)(ii) (2016).
    “The term ‘moral turpitude’ generally refers 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 Silva-Trevino, 

, 833 (BIA 2016) (citation
omitted). “To involve moral turpitude, a crime requires two essential
elements: reprehensible conduct and a culpable mental state,” including
specific intent, knowledge, willfulness, or recklessness. Id. at 834; see also
Matter of Silva-Trevino, 

, 689 n.1 (A.G. 2008).
    To determine whether the respondent’s offense is a crime involving
moral turpitude, we employ the categorical approach, which requires us to
examine the elements of the State statute of conviction, rather than the facts
underlying the respondent’s particular violation, and to see whether those
elements categorically “fit[] within the generic definition of a crime
involving moral turpitude.” Matter of Silva-Trevino, 26 I&N Dec. at 831.
“An element of a statute is what the ‘prosecution must prove to sustain a
conviction’ and the jury must find beyond a reasonable doubt.” Matter of
Kim, 

 (BIA 2017) (quoting Mathis v. United States,

 (2016)).
    When faced with a statute that does not categorically fit within the
definition of a crime involving moral turpitude, we must consider whether
the statute sets forth “multiple alternative elements” and is therefore
divisible. Matter of Silva-Trevino, 

 n.8 (quoting
Mathis, 

). If the statute is divisible, we may examine the
record of conviction to “identify the statutory provision that the respondent
was convicted of violating.” Id. at 833. We may then consider whether
that “portion of the statute is a categorical match to the federal generic
definition.” Larios-Reyes v. Lynch, 

 (4th Cir. 2016).
    We conclude that the respondent’s violation of sections 3-307(a) and
3-324(b) is categorically a crime involving moral turpitude. Section


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3-324(b) requires that a violator “knowingly solicit a minor,” 1 a culpable
mental state that fits within the generic definition of a crime involving
moral turpitude. See Matter of Silva-Trevino, 

 n.2, 834.
    Further, moral turpitude inheres in all violations of section 3-307.
Sections 3-307(a)(1) and (2) necessarily involve sexual contact with a
victim whose lack of consent is either explicit or implicit. See Travis
v. State, 

 (Md. Ct. Spec. App. 2014). It is well settled that
such crimes are turpitudinous. See Matter of Z-, 

, 254–55
(BIA 1956) (holding that taking indecent liberties with a woman without
her consent is a crime involving moral turpitude); Matter of M-, 

, 19–20 (BIA 1944) (holding that having sexual relations with a
woman with the knowledge that her “mental powers are impaired to an
extent negativing the idea of consent” is a crime involving moral turpitude).
    Moreover, to violate section 3-307(a)(3), (4), or (5), a perpetrator must
engage in an intentional sexual act or other contact with a minor victim
under 16 years of age. In the past, we have held that such conduct is
morally turpitudinous as long as the perpetrator knew or should have
known that the victim was under the age of 16. See Matter of
Silva-Trevino, 

 & n.9 (citing Matter of Guevara Alfaro,

, 420–21 (BIA 2011)). However, as noted, a defendant
can be convicted under sections 3-307(a)(3), (4), and (5) even if there was a
reasonable mistake as to the victim’s age. See Moore v. State, 

 (Md. 2005). Because these sections do not require the perpetrator
to have a culpable mental state regarding the age of the victim, the
respondent contends that the prohibited offenses do not categorically fit
within the generic definition of a crime involving moral turpitude.
    We have yet to decide whether sexual crimes that do not require a
perpetrator to possess a culpable mental state with respect to the age of the
victim are crimes involving moral turpitude. See Matter of Silva-Trevino,

 n.9 (reserving the question whether statutory rape
offenses that “do not require a perpetrator to have knowledge of the age of
the victim . . . are crimes involving moral turpitude”). While we held in
Matter of Silva-Trevino that moral turpitude was inherent in a sexual
offense against a minor if an alien knew or should have known that the

1
   Although section 3-324(b) also requires that a violation of section 3-307 be with the
“intent to commit [such] a violation,” the plain language of sections 3-307(a)(3), (4), and
(5) indicates that a defendant need not have known the age of the victim. Each section
makes it unlawful to have sexual contact or commit a sexual act “if” the victim is a
certain age, regardless of whether the perpetrator knew or reasonably should have known
the victim’s actual age. See Moore v. State, 

 (Md. 2005) (noting that
sections 3-307(a)(4) and (5) do not contain a mistake of age defense).


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victim was a minor, our 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 the victim’s age. Id. at 834.
    The United States Court of Appeals for the Fourth Circuit, in whose
jurisdiction this case arises, has not directly addressed this issue. However,
we find instructive the Third Circuit’s reasoning in Mehboob v. Attorney
General of the U.S., 

 (3d Cir. 2008), where the court
concluded that indecent assault involving a minor under 16 years of age
was a crime involving moral turpitude, despite the fact that a perpetrator
need not have a culpable mental state regarding the victim’s age.

       The absence of a mens rea as to a particular element in the statute of conviction
     does not necessarily connote an absence of moral culpability on the part of the
     violator. Strict liability morality offenses, like indecent assault . . . , are crimes
     involving moral turpitude because of the community consensus that such offenses,
     which are enacted for the protection of the child, are inherently antisocial and
     depraved. . . .
       Legislatures often remove mens rea elements from sex offenses on the basis of
     community consensus that certain conduct should not be permitted with children
     under a certain age. . . .
       Thus, the same community consensus that obviates the need to prove knowledge
     of the actual age of the victim at a criminal trial also categorizes [indecent assault]
     as a crime involving moral turpitude.

 (emphases added) (footnote and citations omitted).
    We therefore clarify our decision in Matter of Silva-Trevino and now
hold that 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.
    Because such offenses contravene society’s interest in protecting
children from sexual exploitation, we conclude that they are reprehensible.
See Matter of Olquin, 

 (BIA 2006) (“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 also Castle v. INS, 

, 1065 n.1, 1066
(4th Cir. 1976) (holding that an adult “man’s carnal knowledge of a fifteen
year old girl . . . is so basically offensive to American ethics and accepted
moral standards as to constitute moral turpitude per se”). We also conclude


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that as the age gap between a victim under 16 and an older perpetrator
increases, the more reprehensible the offense becomes. 2
    Further, where a statute criminalizing sexual conduct with a minor
necessarily involves either a particularly young victim or a significant age
difference between the perpetrator and a victim under 16 years of age, the
culpable mental state element for a crime involving moral turpitude is
implicitly satisfied by the commission of the proscribed act. See Garnett
v. State, 

 (Md. 1993) (adopting “the traditional view of
statutory rape as a strict liability crime designed to protect young persons
from the dangers of sexual exploitation by adults, loss of chastity, [and]
physical injury”).
    In this regard, our holding in Matter of Silva-Trevino is distinguishable.
The Texas statute at issue there criminalized sexual contact between a
minor who is 16 years old or younger and a perpetrator who is more than
3 years older. By contrast, under section 3-307(a)(3) of the Maryland
Criminal Law, the victim is much younger (no older than 13) and the
perpetrator must be at least 4 years older. While sections 3-307(a)(4) and
(5) reach relatively older victims (under 16 years of age), these provisions
also require that the perpetrator be an adult who is significantly older than
the victim—specifically, at least 6 years older. We therefore conclude that
all of the conduct proscribed by section 3-307 categorically fits within the
generic definition of a crime involving moral turpitude.
    Finally, we note that a defendant may be convicted under section
3-324(b) for knowingly soliciting a law enforcement officer who is posing
as a minor to engage in sexual activity. We understand such an act to be
equivalent to an attempt to engage an actual minor in unlawful sexual
activity. Cf. Hernandez-Alvarez v. Gonzales, 

 (7th Cir.
2005) (holding that solicitation of an undercover investigator who was
posing as a minor qualified as attempted sexual abuse of a minor).
    It is well established that we only look to the underlying crime “to
determine whether inchoate offenses, such as attempt . . . or solicitation,
constitute crimes involving moral turpitude.” Matter of Vo, 

 (BIA 2011); see also, e.g., Reyes v. Lynch, 

 (6th
Cir. 2016) (holding that solicitation of prostitution is a crime involving
2
    In the aggravated felony context, we emphasized that a substantial age differential “is
the key consideration in determining whether” an alien who has engaged in sexual
intercourse with a victim who is 16 or 17 years old has committed sexual abuse of a
minor under the Act. Matter of Esquivel-Quintana, 

 (BIA 2015),
aff’d, 

 (6th Cir. 2016), cert. granted, 

 (mem.) (2016); see
also Larios-Reyes, 

 n.7 (according deference to our conclusion in Matter
of Esquivel-Quintana that “the generic federal offense of ‘sexual abuse of a minor’
requires a meaningful age difference between the victim and the perpetrator”).


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moral turpitude because the underlying offense of prostitution is
turpitudinous); Gomez-Gutierrez v. Lynch, 

, 1058–59 (8th
Cir. 2016) (same); Perez v. Lynch, 

, 872–73 (10th Cir.
2015) (same); Rohit v. Holder, 

, 1089–90 (9th Cir. 2012)
(same).
    Because the respondent pled guilty under section 3-324(b) of the
Maryland Criminal Law to knowingly soliciting a minor, or a police officer
who was posing as a minor, with the intent to engage in unlawful sexual
activity in violation of section 3-307, we conclude that he has been
convicted of an offense that is categorically a crime involving moral
turpitude. We therefore agree with the Immigration Judge that the
respondent is removable pursuant to section 212(a)(2)(A)(i)(I) of the Act
and we will dismiss his appeal.
    The Immigration Judge granted the respondent voluntary departure
conditioned upon the posting of a voluntary departure bond and informed
him in writing of his obligation to provide the Board with timely proof that
the bond had been posted. The respondent has not submitted proof that the
voluntary departure bond has been paid. Accordingly, the voluntary
departure period granted by the Immigration Judge will not be reinstated.

(c)(3)(ii) (2016); see also Matter of Gamero, 

, 166–67 (BIA 2010). The respondent will therefore be ordered
removed from the United States pursuant to the Immigration Judge’s
alternate order of removal.
    ORDER: The appeal is dismissed.
    FURTHER ORDER: The respondent is ordered removed from the
United States to Mexico pursuant to the Immigration Judge’s alternate
order of removal.




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