Possession of Child Pornography Is An Aggravated Felony
On January 3, 2012, the Board of Immigration Appeals, in Matter of R-A-M-, held that a conviction for possession of child pornography is an aggravated felony and a particularly serious crime, barring withholding of removal.
The case involved a citizen of Honduras, who applied for asylum and withholding of removal based on his alleged mistreatment on account of his sexual orientation. While his asylum application was pending with the immigration court, the respondent was convicted of possession of child pornography in violation of the California Penal Code § 311.11(a), which makes it unlawful to knowingly possess or control any image or film that depicts a person under the age of 18 years engaging in or simulating sexual conduct. The respondent was convicted of possessing videos and images depicting child pornography on two computers, and he was sentenced to 280 days of imprisonment and three years' probation. At the conclusion of a removal hearing, the immigration judge denied asylum, finding that the respondent's offense was an aggravated felony, but he granted withholding of removal, holding that the respondent had not been convicted of a particularly serious crime. The Department of Homeland Security (DHS) appealed the Immigration Judge’s decision, arguing that the respondent's conviction was for a particularly serious crime and the respondent should be barred from the relief of withholding of removal. The Board of Immigration Appeals agreed with DHS and found the respondent’s conviction was for a particularly serious crime and remanded the case to the Immigration Judge.