Background
Jesus Gonzalez-Godinez, a Mexican citizen and lawful permanent resident, pleaded guilty in Oregon in 2013 to using a child in a display of sexually explicit content, in violation of Oregon Revised Statutes § 163.670. The charge arose from conduct involving a 15-year-old girl he met at church. He received a 70-month prison sentence.
In 2018, the Department of Homeland Security charged Gonzalez as removable based on an aggravated-felony conviction and a crime-of-child-abuse conviction. The immigration judge rejected the aggravated-felony ground but found him removable under 8 U.S.C. § 1227(a)(2)(E)(i), denied cancellation of removal and voluntary departure, and ordered removal. The Board of Immigration Appeals dismissed Gonzalez’s appeal.
The Court’s Holding
The Ninth Circuit denied Gonzalez’s petition for review. Applying its recent decision in Leon-Briviesca v. Blanche, the court held that Oregon Revised Statutes § 163.670 is categorically a crime of child abuse, child neglect, or child abandonment for purposes of the removability statute.
Oregon courts interpret the statute to require intentional or knowing conduct undertaken for observation or visual recording, satisfying the required mens rea. Its requirement that a child participate in sexually explicit conduct, including actual or simulated lewd exhibition of intimate parts, categorically creates a likelihood of physical or emotional harm, the court held. Gonzalez did not establish a realistic probability that Oregon would apply the statute to consensual conduct between older minors.
Key Takeaways
- An Oregon conviction under § 163.670 is categorically a removable child-abuse offense under 8 U.S.C. § 1227(a)(2)(E)(i).
- The categorical inquiry focuses on the offense’s elements, not the particular defendant’s conduct.
- Hypothetical applications do not establish overbreadth without a realistic probability of actual prosecution.
Why It Matters
The decision confirms that Oregon’s child-sexual-exploitation statute supplies both the culpable mental state and harm-producing conduct required by the Ninth Circuit’s federal generic definition of child abuse. Noncitizens with convictions under § 163.670 therefore face removability on that ground.
The ruling also narrows the usefulness of comparisons to Menendez v. Whitaker where the elements relevant there do not answer whether the offense inherently places a child at risk of physical or emotional harm.