Background
Jesus Adame Garcia, a Mexican citizen who entered the United States without inspection as a child, was convicted in 2012 after pleading nolo contendere to California Penal Code § 288.2(b). The conviction arose from sending lewd and sexually explicit messages to a minor. He received a 14-day jail sentence.
After the Department of Homeland Security began removal proceedings, Adame sought cancellation of removal. The immigration judge pretermitted the application, concluding that the offense was both a crime involving moral turpitude and a crime of child abuse. The Board of Immigration Appeals dismissed his appeal on the child-abuse ground and did not reach the moral-turpitude issue.
The Court’s Holding
The Ninth Circuit denied the petition for review. Applying its intervening decision in Leon-Briviesca v. Blanche, the court held that a conviction under § 288.2(b) is categorically a crime of child abuse, child neglect, or child abandonment under 8 U.S.C. § 1227(a)(2)(E)(i), making Adame ineligible for cancellation of removal.
The statute requires knowing and intentional conduct, including an intent to seduce a minor. The court rejected Adame’s claimed overbreadth: the generic federal definition requires a risk of physical or emotional harm rather than actual injury; § 288.2(b) cannot rest solely on consensual communications because it requires “harmful matter”; and Adame did not establish a realistic probability that California prosecutes completed violations involving an adult posing as a minor or a minor who never received or knew of the communication. He also abandoned the latter argument in his reply brief.
Key Takeaways
- California Penal Code § 288.2(b) is categorically a removable child-abuse offense under the Ninth Circuit’s framework.
- A categorical-match challenge requires more than theoretical overbreadth; the noncitizen must show a realistic probability of prosecution for the asserted conduct.
- The court did not decide whether Adame’s conviction was also a crime involving moral turpitude.
Why It Matters
The decision confirms that distributing sexually harmful material to a minor with the intent required by § 288.2(b) triggers the immigration child-abuse removal ground in the Ninth Circuit. It also applies Leon-Briviesca to reject arguments based on hypothetical applications of the California statute absent evidence of actual or realistic prosecutorial practice.