In United States v. Pacheco, --- F.3d ---, No. 19-10014 (9th Cir. 2020), the Court affirmed the defendant's convictions for sexually abusing minors at a facility that housed unaccompanied noncitizen children.
The issue on appeal was whether the government proved the victims were in “official detention”-- a term that extends to detentions “pending . . . deportation” -- for purposes of 18 U.S.C. § 2246(5)(A).
The Court held the government met its burden.
At the time of the conduct, the minors were in a shelter that housed unaccompanied noncitizen children pursuant to a federal contract. They were also in deportation proceedings, although they had not been ordered removed and ultimately were not deported.
The Court concluded: "deportation is 'pending' for the purposes of 18 U.S.C. § 2246(5)(A) when the victims of the defendant’s conduct are in unresolved deportation or removal proceedings. We interpret “pending” by giving the term its ordinary meaning. Thus, where, as here, the government had issued Notices to Appear in Immigration Court, Pacheco’s victims were pending deportation until the completion of that process, whether it resulted in deportation or not. In other words, the case has not 'achieved final resolution,' and the victims are 'pending . . . deportation' insofar as the proceedings could result in their removal from the United States."
