[00:00:00] Speaker 03:
19-71322 and I believe that counsel in both cases are on both sides are appearing remotely and so

[00:00:27] Speaker 00:
right so we're uh each side has 10 minutes we're ready thank you good morning your honors uh may it please the court my name is octavian jumanka counsel for petitioner mr gonzalez cadenas i would like to reserve two minutes for rebuttal possible before the court there are two questions one is whether mr gonzalez cadenas is removable from the united states for his conviction under or as Oregon Revised Statute 163.670, and if so, if the immigration judge erred in precluding relief through cancellation of removal on account of his conviction despite finding the petitioner as rehabilitated.

[00:01:09] Speaker 00:
I believe the court need not afford any change in deference under Skidmore to the agency's interpretation of a crime of child abuse to hold that this statute is not a crime of child abuse. That is because this statute mostly mirrors the language and scope of CPC 288 , which this court had previously held in Menendez is not a crime of child abuse under the previous Chevron difference. and that it did not require proof of an actual injury or a sufficiently high risk of harm as an element of the offense, and it did not require that a defendant act with a mens rea of at least criminal negligence.

[00:01:46] Speaker 00:
First, this statute criminalizes using a child in a display of sexually explicit conduct, including lewd exhibition for someone to observe or record. These elements do not require the government to prove actual injury, and they do not require to prove a sufficiently high risk of harm as an element.

[00:02:04] Speaker 00:
That absence under Menendez, Menendez did not turn on whether the conduct is morally troubling. In the ordinary case, it turned on what the statute requires to convict. Here, Oregon can obtain a conviction based on the existence of a display that fits the statute's definition without litigating injury and without litigating high-risk endangerment as a required element. Second, it does not contain the kind of mens rea floris that Menendez uses as a dividing line. The statutes operating verbs employ, authorize, permit, compel, induce, do not themselves impose a mens rea of at least criminal negligence with respect to harm or risk of harm.

[00:02:43] Speaker 00:
And critically, the statute is not an endangerment statute. does not ask whether the defendant created a danger to the child's well-being. It asks whether the defendant used, caused, or allowed participation in a statutorily defined display. So even if the government characterizes the offense as intentional sexual wrongdoing, the point under Menendez is the statute still does not require that the prosecution prove the defendant acted with at least criminal negligence as to the injury or endangerment, because injury endangerment is not an element the jury must find at all.

[00:03:20] Speaker 00:
As you may have noticed, I sometimes use the past tense in referring to the statute, and that is because this statute presents a unique situation in which the Oregon Court of Appeals has actually issued a ruling narrowing the precise statutory text that issued before this court, specifically regarding the admittedly excessively broad definition that Oregon had previously afforded to the term lewd exhibition. And that was in 2023 in State v. Paris Sanchez, where they focused on the display term.

[00:03:51] Speaker 00:
There, the counts were not based on photographs, recordings, or staging a child for an audience. They were based on repeated intrusive live viewing of the defendant's minor daughter in ordinary undressed contexts. Conduct that the state argued became lewd solely because of the defendant's own subjective sexual motivation. The Court of Appeals recognized that to decide the statutory question, the facts sparkly presented, does sexual gratification alone transform passive observation into lewd exhibition.

[00:04:30] Speaker 00:
Those facts mattered because adopting a purely subjective test would mean the same objectively ordinary nudity could become felony display depending entirely on what's in the viewer's head. A move the court said could not support and raises constitutional and due process problems. Chair Sanchez squarely acknowledged the pitfalls created by Oregon by earlier Oregon cases that drifted towards subjective conception of lewd exhibition, where the observer's intent could do too much work.

[00:05:03] Speaker 00:
The court explained why that approach created over-breath. When a minor's nudity or sexual activity is self-initiated, another person's unexpected observation or recording of it does not automatically transform the situation into lewd exhibition or mean that the observer permitted the child to engage in it. What Parasens just does is recognize this glaring hole in the statute and corrects that by making the inquiry objective.

[00:05:32] Speaker 00:
The defendant permitted the child's actual participation in the conduct.

[00:05:39] Speaker 01:
Can you go back to your mens rea argument? You're saying that it doesn't meet the criminal negligence standard?

[00:05:47] Speaker 00:
Yes, for the injury requirement.

[00:05:51] Speaker 00:
So much like in Menendez, this statute does not require any mens rea as to an actual injury to the child or pricing the child at a high risk of harm.

[00:06:06] Speaker 01:
But you have to agree that it's intent or knowledge that you're using a child in a display of sexually explicit conduct, correct? Correct.

[00:06:14] Speaker 00:
Well, that sort of really bleeds into this Paris Sanchez case because it sort of goes into the whole... But the Oregon case, the Oregon courts have repeatedly interpreted the statute to require immense ray of intent or knowledge.

[00:06:29] Speaker 03:
Am I wrong?

[00:06:33] Speaker 00:
As to the conduct or the age...

[00:06:40] Speaker 00:
No, Your Honor, I'm not saying that you're wrong. What I am saying is that at the very least, when it comes to the actual harm or risk There has been a glaring change in the way this statute is now being prosecuted after 2023 and the way it was previously prosecuted, which goes to the actual risk of harm or any actual harm to the child. And that would be the second reason.

[00:07:08] Speaker 01:
But if you intentionally or with knowledge use a child in the display of sexually explicit conduct, how does that not lead to a risk of harm?

[00:07:16] Speaker 00:
Well, that's what Paracenture's exemplified there, is that a child, I mean, the whole issue was that if the conduct is self-initiated by the child, and there's a view of...

[00:07:41] Speaker 00:
The courts in Oregon have prosecuted cases in which there was – the display included just self-initiated undressing and then just by virtue of the fact that a defendant was – I just don't think kids can consent to their being sexually displayed, even if it's consensual.

[00:08:00] Speaker 01:
It's still harmful to them, even if they don't understand it.

[00:08:04] Speaker 00:
Well, that's exactly what this case in Oregon recognizes, that there can be a prosecution, and there was a prosecution where there was a self-initiated undressing, somebody observed, and then the court or the jury had to determine whether the viewer subjectively was aroused, and if so, he was punishable under the statute. And the question was, well, does that really create a risk or a harm to that child? And if you read the concurrence in that case, the court recognizes that at most something like this would qualify as an invasion of privacy under a different statutory law.

[00:08:40] Speaker 00:
And that's why they chose to restrain the definition of this element within the statute and adopt the federal generic definition and an objective definition as well. And I'll let Your Honor have any more questions for me. Otherwise, I'll reserve my time.

[00:08:58] Speaker 03:
All right. You can do that. Thank you.

[00:09:01] Speaker 03:
All right, we'll hear from the government.

[00:09:08] Speaker 02:
Thank you, Your Honor. Good morning. May it please the court. Kylie Kane on behalf of the Attorney General.

[00:09:14] Speaker 02:
Your Honors, Mr. Gonzalez was convicted of what the Oregon State Court described as one of the most serious crimes in the state. It is one of only four that are described as major felony sex crimes, a Class A felony.

[00:09:28] Speaker 02:
And the minimum conduct criminalized under this statute is knowingly causing a child to engage in lewd exhibition of their intimate parts for a person to observe or record. And it's what the Oregon state courts essentially call production of child pornography for display.

[00:09:47] Speaker 02:
I think the Paris Sanchez case that my friend is referring to doesn't have that much impact on whether or not this case conviction falls under the generic definition of child abuse, it probably has pretty big impact for a criminal defendant that might be facing this charge, state court, because it goes to what the prosecution has to show. But under the old interpretation and under the new interpretation, it went from like a subjective, defendant's intent to more objective criteria.

[00:10:19] Speaker 02:
Both of them require that you're showing a child sexual or other intimate parts for a salacious intent or focused on sex. So all the Paris Sanchez case really did was change sort of the, I guess, evidentiary inquiry into the prosecution's burden to show what sexual explicit conduct really means. And I take Judge Fudime's point, and we made this point in the brief, that essentially, I mean, all over these Oregon state court decisions indicate that a child cannot consent to this kind of conduct.

[00:10:55] Speaker 02:
Now, my friend on the other side is suggesting that what could happen is a child could self-initiate this sort of conduct and send it, I guess, to a defendant and they could be convicted. But that's not at all true because there has to be an intentional or knowing act that that induces or coerces or permits a child to engage in conduct that they cannot consent to under Oregon state law.

[00:11:20] Speaker 02:
And the Oregon Supreme Court has said, and this is in the... What would you say is the men's right?

[00:11:29] Speaker 02:
It's intentional or knowing.

[00:11:31] Speaker 03:
Okay, intent or knowledge, right?

[00:11:33] Speaker 02:
Yes, yes. And I didn't think that that was actually in dispute. And I think there's a little bit of blurring, I guess, about conduct versus the mens rea here. I think my friend probably does agree it's intentional or knowing. What we're actually fighting over is whether the act itself, I guess, meets the maltreatment definition under Velazquez or whatever the court may come up with. And the minimum conduct here has to be lewd. It has to be lewd. And all the Pereira Sanchez Oregon appellate court decision did was change its definition to an objective one rather than a subjective one.

[00:12:12] Speaker 02:
But that didn't change the mens rea for the statute. And I think that's where I can disagree with his argument a little bit.

[00:12:19] Speaker 02:
You know, one of the through lines through a lot of the Oregon state court decisions is that children cannot consent to this kind of conduct. And that itself makes the conduct harmful. So even under a very restrictive definition of crime of child abuse, generic definition that might require harm, would require intentionality or knowledge, this would easily clear that bar using Oregon State Law to support that. These convictions require harm to a child because a child producing themselves for child pornography is harmful per se.

[00:12:55] Speaker 02:
And that's where the government's position could clear even the highest.

[00:12:57] Speaker 01:
So you're saying in this case, we don't have to reach what's the definition of a crime of child abuse, child neglect, or child abandonment. Under any definition, it meets that threshold. Is that your position?

[00:13:10] Speaker 02:
I would think so. I mean, I could not imagine one, and Mr. Gonzalez's counsel is not advancing any definition that this wouldn't clear. Yes.

[00:13:19] Speaker 02:
It doesn't really implicate the endangerment offenses or the criminal negligence, those things that you've discussed in these other cases.

[00:13:29] Speaker 02:
If the court doesn't have further questions, I'm happy to yield my time. I think the Oregon state law clearly clears the bar here, and I have nothing further to add unless you have further inquiry.

[00:13:41] Speaker 03:
We do not have further questions. Thank you. Okay.

[00:13:44] Speaker 02:
Thank you very much.

[00:13:45] Speaker 03:
All right. We'll go back to your friend on the other side has a few, a little over a minute for rebuttal. Go ahead. Oh, we can't hear you.

[00:14:00] Speaker 00:
I would like to go back to the actual harm element here. I do think it's important to understand just how crucial the definition of subjective versus objective intent is here because we can imagine multiple scenarios where A subjective intent is just what the jury decides was in the mind of the person viewing or displaying or even seeing a child, even a fully clothed child, may have felt based on what the jury hears as evidence at the trial.

[00:14:38] Speaker 00:
It does not create a standard that is uniform. It opens the door for criminal conduct that falls way outside of the scope of what's recognized as a generic federal offense here. That is why this statute mirrors that within the one in Menendez where the court similarly said it was not a crime of child abuse because there is no actual harm and the statute as it was before this definition did not require a showing that this child was placed at a sufficiently high risk of harm.

[00:15:15] Speaker 00:
Now granted, after the court's redefinition of this case and change of the term of lewd and lavishness, One could say that, yes, this is now a crime of child abuse. However, this case shows that prior to this case, it fell outside of that scope, outside of the generic federal definition and criminalized conduct, outside of that scope. And that is why it's categorically not a crime of child abuse. Thank you, Your Honors.

[00:15:43] Speaker 03:
All right. Thank you both for your argument today. This matter will stand submitted.