Monday, July 17, 2006

Stubbs: NJ Endangering Children's Welfare Not Aggravated Felony

Stubbs v. Gonzales
Filed 06/29/06, No. 04-4316

Congratulations to Tom Moseley for his victory in convincing the Third Circuit that a conviction for endangering welfare of children under NJSA 2C:24-4(a) is not sexual abuse of a minor where there is no indication in the record of conviction of sexual abuse.

A conviction under NJ 2C:24-4(a) could be for one several types of conduct -- therefore, the BIA properly considered the document listing the charges against Stubbs in his criminal case. But that document did not clarify whether Stubbs was convicted for sexual abuse of a minor or for merely impairing a minor's morals. The NJ criminal statute (and the accusing document) charged Stubbs with sexual conduct which would impair or debauch the morals of a child -- which does not necessarily mean that Stubbs engaged in the sexual conduct with that child.

The key difference is that NJ punishes a broad range of conduct, including conduct that would coerce or entice a child. To be an aggravated felony for sexual abuse of a minor, immigration law requires a conviction where by definition sexual conduct must have taken place (not merely would coerce or would entice the child).

The point here is that the NJ Legislature decided to define a crime broadly to punish those who would coerce or entice a child to debauch his or her morals. An unintended consequences of defining that crime broadly is that a conviction that does not specify whether sexual conduct actually took place cannot be used to trigger the aggravated felony penalties in immigration law. But that is probably a minor consequences considering the NJ Legislature's intention to impose criminal penalties on conduct it finds punishable.


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