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Cite as 23 I&N Dec. 896 (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, 23 I&N Dec. 78 (BIA 2001); Matter of L-V-C-, 22 I&N

Dec. 594 (BIA 1999); Matter of Tran, 21 I&N Dec. 291 (BIA 1996); Matter

of Danesh, 19 I&N Dec. 669 (BIA 1988). In determining whether a crime

involves moral turpitude, the specific statute under which the conviction

occurred is controlling. See Matter of Khourn, 21 I&N Dec. 1041 (BIA

1997); Matter of Franklin, 20 I&N Dec. 867 (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,

20 I&N Dec. 136 (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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Cite as 23 I&N Dec. 896 (BIA 2006) Interim Decision #3529

knows to include any sexual conduct by a child.” Fla. Stat. Ann. § 827.071(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.”

Fla. Stat. Ann. § 827.071(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, 535 U.S. 234, 244 (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, 17 I&N Dec. 225 (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 Coalition, supra, at 244; New

York v. Ferber, 458 U.S. 747, 759 (1982).

The primary concern of statutes banning child pornography is to lessen the

harm suffered by children. United States v. Tillmon 195 F.3d 640, 643 (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, 590 So.2d 404, 410-11 (Fla. 1991).

1

In Schmitt v. State, 590 So.2d 404 (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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Cite as 23 I&N Dec. 896 (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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