Judicial Endorsement of BIA’s Stance on Solicitation and Removability
Court Upholds Removal for Conviction of Online Solicitation of a Minor, following a decision by the Board of Immigration Appeals.
A recent court decision upheld the Board of Immigration Appeals’ (BIA) interpretation of what qualifies as a “crime of child abuse” under the Immigration and Nationality Act (INA) §237(a)(2)(E)(i).
The petitioner in this case had argued that his conviction should not be classified as a removable offense. He asserted this because no real child was harmed. The statute under which he was convicted criminalizes the attempt to solicit a minor through online communications. Law enforcement officers had posed as minors during the sting operation. Despite the absence of an actual child victim, the court found that the statute targets conduct creating a serious risk of harm to children. This aligns with Congress’s intent in drafting INA §237(a)(2)(E)(i).
In its reasoning, the court emphasized that the risk of harm, not the existence of actual harm, is the critical factor. Attempted solicitation demonstrates the offender’s intent to engage in criminal conduct against a child. Therefore, it qualifies as a removable offense. The decision makes clear that immigration law does not require the presence of an actual minor victim. This is to sustain a finding of removability for crimes of child abuse.
The court also upheld the BIA’s denial of the petitioner’s motion for reconsideration. It reaffirmed that the BIA acted within its discretion. This effectively closed the petitioner’s path to relief through administrative channels.
This decision carries important implications for noncitizens with criminal convictions related to child protection laws. For immigration practitioners, the case underscores the need to advise clients about the broad interpretation of child-related offenses. Additionally, it highlights the serious immigration consequences that may result from such convictions.
