Is Possession of Child Pornography a Removable or Deportable Offense?


Is Virginia simple possession of child pornography a removable or deportable offense?

Virginia code VA 18.2–374.1:1 (A), simple possession of child pornography for a first time offender, states that any person who knowingly possesses child pornography is guilty of a class six felony. The statute punishes the mere possession of material which is defined as sexually explicit visual material which utilizes or has as a subject an identifiable minor. A class 6 felony in Virginia is punishable by up to 5 years in jail and/or a fine of up to $2500.

TIP: It is very important at the criminal stage to hire a very competent and able criminal defense attorney as well as an immigration attorney to advise and analyze the immigration consequences of the charge(s).

Is it a Crime Involving Moral Turpitude (CIMT)?

The Board of Immigration Appeals has addressed possession of child pornography in different contexts. In Matter of Olquin, 23 I&N Dec. 896 (BIA 2006) the Board held that possession of child pornography under the Florida Statute was a CIMT and it appears it will mostly likely continue to be in Virginia and other states aswell. Therefore, if you are not a permanent resident or one who has been a resident for less than five years, a conviction for possession will likely limit your options and may deem you removable from the United States.

Is it an Aggravated Felony (Agg Fel)?

In Matter of R-A-M, 25 I&N Dec. 657 (BIA 2012), the Board analyzed an overbroad California. The Board compared the statute to the definition of an aggravated felony as found at INA 101(a)(43)(i) which states that offenses relating to child pornography as defined by 18 United States Code (USC) 1962, 1084, or 1955 to be aggravated felonies. However, the difference between the Virginia statute and the California statute of R-A-M, is that the California statute punished conduct that involved engagement or simulation of sexual conduct. The Virginia statute does not require any engaging or simulating to obtain a conviction and so the reasoning of R-A-M does not apply. Further, analysis of the aggravated felony definition of INA(a)(43)(i) (sections of the United States Code (USC) as they relate to child pornography) punish activity relating to sexual exploitation of children, the selling or buying of children, and certain activities relating to material involving the sexual exploitation of minors; far more involved actions than simple possession.

The Virginia simple possession statute does not relate to the aggravated felony statute in the Immigration and Nationality Act (INA), nor does it fall within the conduct of the Board decision in R-A-M, and therefore it should be argued that it is not an aggravated felony.

If you are convicted under this statue, you are not an aggravated felon and you should be able to prevent your removal and apply for immigration benefits.

To schedule a consultation, please call the office at 703.686.9900