Victor Frutis Salmoran v. Attorney General United States , 909 F.3d 73 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2683
_____________
VICTOR MANUEL FRUTIS SALMORAN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of an Order of the Board of
Immigration Appeals
(Agency No. A095-475-043)
Immigration Judge: Honorable Silvia Arellano
______________
Argued
June 19, 2018
______________
Before: GREENAWAY, JR., RESTREPO, and BIBAS,
Circuit Judges.
(Opinion Filed: November 26, 2018)
Matthew J. Archambeault [Argued]
Law Office of Michael J. Archambeault
1420 Walnut Street
Suite 1188
Philadelphia, PA 19102
Counsel for Petitioner
Brianne W. Cohen
Lindsay Dunn [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
Victor Manuel Frutis Salmoran seeks review of the
determination of the Board of Immigration Appeals (“BIA” or
“the Board”) that he committed both an aggravated felony and
a crime of child abuse pursuant to the Immigration and
Nationality Act (“INA”), see 8 U.S.C. §§ 1101(a)(43)(I),
1227(a)(2)(E)(i) (2012). For the reasons below, we hold that a
conviction under section 2C:24-4(b)(5)(b) of the New Jersey
Statutes Annotated for possession of child pornography
qualifies as a crime of child abuse, but does not qualify as an
2
aggravated felony relating to child pornography. 1
Accordingly, while Salmoran is removable, he may still file an
application for cancellation of removal. We will therefore
grant the petition for review in part, deny it in part, and remand
the case for further proceedings consistent with this opinion.
I. Background
Salmoran is a native and citizen of Mexico who was
granted lawful permanent resident status in 2004. In 2015, he
pled guilty to a September 2012 violation of section 2C:24-
4(b)(5)(b). 2 The statute provides that:
Any person who knowingly possesses or
knowingly views any photograph, film,
videotape, computer program or file, video game
1
Because Salmoran’s offense occurred in September
2012, the version of section 2C:24-4(b)(5)(b) at issue in this
case is that which was in effect from December 28, 2001 to
June 30, 2013.
2
Whether Salmoran has any other criminal arrests or
convictions is irrelevant to the legal questions before us
because the U.S. Department of Homeland Security (“DHS”)
only charged him as removable in relation to the 2012
possession of child pornography offense. See Pet’r’s Br. 4;
Resp’t’s Br. 3 & n.2. Compare A.R. 112 (“The defendant has
no history of prior delinquency or criminal activity . . . .”), with
A.R. 118 (identifying arrests and a conviction relating to
prostitution).
3
or any other reproduction or reconstruction
which depicts a child engaging in a prohibited
sexual act or in the simulation of such an act,
including on the Internet, is guilty of a crime of
the fourth degree.
N.J. Stat. Ann. § 2C:24-4(b)(5)(b) (amended 2013 and 2017). 3
In 2016, DHS initiated removal proceedings charging
Salmoran as removable for having been convicted of: (1) the
aggravated felony crime of sexual abuse of a minor; (2) an
offense relating to child pornography; and (3) a crime of child
abuse, child neglect, or child abandonment. 4 The Immigration
Judge (“IJ”) concluded that the possession of child
pornography offense was not categorically an aggravated
felony for sexual abuse of a minor, but was categorically an
3
A child for the purposes of the statute is “any person
under 16 years of age.” Id. § 2C:24-4(b)(1).
4
The INA includes as a class of deportable aliens “[a]ny
alien who is convicted of an aggravated felony at any time after
admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The statute defines
“aggravated felony” by reference to a list of offenses. Id.
§ 1101(a)(43). The INA also includes as a class of deportable
aliens “[a]ny alien who at any time after admission is convicted
of a crime of domestic violence, a crime of stalking, or a crime
of child abuse, child neglect, or child abandonment.” Id.
§ 1227(a)(2)(E)(i). While a conviction for either a crime of
child abuse or aggravated felony renders a lawful permanent
resident removable, only an aggravated felony conviction
makes an individual ineligible for cancellation of removal. See
id. § 1229b(a)(3), (b)(1)(C).
4
aggravated felony for child pornography and a crime of child
abuse.
Salmoran appealed the IJ’s decision and order removing
him to Mexico. On de novo review, the Board agreed that a
conviction under section 2C:24-4(b)(5)(b) “categorically
constitutes a crime of child abuse, so as to subject him to
removal on that basis.” It therefore did not address whether the
state conviction was categorically an aggravated felony for an
offense relating to child pornography.
In his motion to reconsider, Salmoran requested that the
BIA also determine his removability for having been convicted
of an aggravated felony relating to child pornography because,
but for the aggravated felony bar, he would be eligible for
cancellation of removal. The BIA granted his request but
ultimately rejected his argument that the state statute was
broader than the federal offense. The Board consequently
found that Salmoran was “statutorily precluded from applying
for cancellation of removal under section 240A(a)(3) of the
[INA]” and dismissed his appeal. This timely petition
followed. 5
II. Jurisdiction and Standard of Review
The BIA had jurisdiction pursuant to 8 C.F.R. §§
1003.1(b)(3) and 1240.15, and it exercised jurisdiction over the
5
Salmoran has already been removed to Mexico. See
Pet’r’s Br. 8; Resp’t’s Br. 8 n.5. “[A]n alien’s removal from
the United States,” however, “does not divest a federal court of
appeals from considering the claims raised in a petition for
review.” Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir. 2003).
5
motion to reconsider under 8 C.F.R. § 1003.2(b). We have
appellate jurisdiction over final orders of removal under 8
U.S.C. § 1252(a)(1). 6
“Where, as here, the BIA issues a written decision on
the merits, we review its decision and not the decision of the
IJ.” Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014)
(quoting Bautista v. Att’y Gen., 744 F.3d 54, 57 (3d Cir. 2014)).
“[W]e review the BIA’s legal determinations de novo, subject
to Chevron principles of deference.” Denis v. Att’y Gen., 633
F.3d 201, 205–06 (3d Cir. 2011).
III. Discussion
The questions of whether the New Jersey child
pornography conviction constitutes an aggravated felony or a
crime of child abuse both require the application of the
categorical approach. 7 See, e.g., Mondragon-Gonzalez v. Att’y
6
Section 1252(a)(2)(C) strips courts of jurisdiction “to
review an order to remove an alien who commits an aggravated
felony,” but we nonetheless retain jurisdiction “to hear
‘constitutional claims and questions of law presented in
petitions for review of final removal orders,’ even for those
aliens convicted of an aggravated felony.” Restrepo v. Att’y
Gen., 617 F.3d 787, 790 (3d Cir. 2010) (quoting Papageorgiou
v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005)); see 8 U.S.C.
§ 1252(a)(2)(C), (D).
7
There are departures to our presumptive application
of the categorical approach, but none applies here. First, there
is no dispute as to the indivisibility of the statute of conviction
so as to warrant the use of the modified categorical approach.
See Descamps v. United States, 570 U.S. 254, 261-62 (2013)
6
Gen., 884 F.3d 155, 159-60 (3d Cir. 2018) (applying the
categorical approach in a crime of child abuse case); Singh v.
Att’y Gen., 839 F.3d 273, 278 (3d Cir. 2016) (applying the
categorical approach in an aggravated felony case). Under the
categorical approach, “we look ‘not to the facts of the
particular prior case,’ but instead to whether ‘the state statute
defining the crime of conviction’ categorically fits within the
‘generic’ federal” offense. Moncrieffe v. Holder, 569 U.S. 184,
190 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S.
183, 186 (2007)). Only where “a conviction of the state
offense ‘“necessarily” involved . . . facts equating to [the]
generic [federal offense]’” is there a categorical match. Id.
(quoting Shepard v. United States, 544 U.S. 13, 24 (2005)).
The Supreme Court of the United States, however, has
cautioned that this approach “is not an invitation to apply ‘legal
imagination’ to the state offense; [rather] there must be ‘a
realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic
definition of a crime.’” Id. at 191 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
(describing a divisible statute as one that “comprises multiple,
alternative versions of the crime”). Second, the terms of
section 2C:24-4(b)(5)(b) do not “invite inquiry into the facts
underlying the conviction at issue.” Singh v. Ashcroft, 383
F.3d 144, 161 (3d Cir. 2004) (including as examples where the
statute includes a qualifier like “in which the loss to the victim
or victims exceeds $10,000” or specifies crimes “committed
within the last two years”).
7
A. Aggravated Felony
1. Facial Overbreadth
As a threshold matter, in considering Salmoran’s claim
that the BIA erred in its aggravated felony determination, we
note that Chevron deference is not implicated in our analysis.
Under our precedent, Chevron deference is limited to the
BIA’s reasonable interpretations of the INA and does not
extend to its categorical approach determinations. Singh v.
Att’y Gen., 677 F.3d 503, 508 (3d Cir. 2012). We have in some
cases noted the “confusion surrounding the proper standard of
review” with respect to “the role of Chevron deference in cases
interpreting the [INA] generally, and the aggravated felony
statute of 8 U.S.C. § 1101(a)(43) in particular.” Singh v.
Ashcroft, 383 F.3d at 150 (quoting Patel v. Ashcroft, 294 F.3d
465, 467 (3d Cir. 2002)). Indeed, there may be some open
questions concerning Chevron deference to the BIA’s
interpretation of ambiguous terms as used in section
1101(a)(43). See id. at 151–52 (“[W]e . . . expressly reserve
decision on whether some BIA interpretations of § 1101(a)(43)
are entitled to deference.”).
Any such concerns about deference generally, however,
are not present in this case. Section 1101(a)(43)(I)
incorporates by reference sections of Title 18 of the U.S. Code,
and the BIA’s interpretations of federal criminal provisions
outside the INA are not entitled to deference. See Francis v.
Reno, 269 F.3d 162, 168 (3d Cir. 2001); accord Singh v.
Gonzales, 432 F.3d 533, 538 (3d Cir. 2006). Even if there were
a question as to the interpretation of 18 U.S.C. § 2252 in this
case, then, it would not be “necessary [or] appropriate to defer
to the BIA’s or IJ’s interpretation.” Singh v. Ashcroft, 383 F.3d
at 151. Moreover, “we owe no deference to the BIA’s
8
interpretation of a state criminal statute,” which does not entail
the BIA’s special expertise and which the INA does not even
incorporate by reference. Javier v. Att’y Gen., 826 F.3d 127,
130 (3d Cir. 2016).
We therefore start on a blank slate in comparing the
state statute of conviction and the federal offense. Salmoran’s
argument hinges in particular on the state statute’s definition
of “prohibited sexual act” as: sexual intercourse, anal
intercourse, masturbation, bestiality, sadism, masochism,
fellatio, cunnilingus, “[n]udity, if depicted for the purpose of
sexual stimulation or gratification of any person who may view
such depiction,” or “[a]ny act of sexual penetration or sexual
contact as defined in N.J.S.2C:14-1.” N.J. Stat. Ann. § 2C:24-
4(b)(1). Sexual contact, in turn, is defined as:
an intentional touching by the victim or actor,
either directly or through clothing, of the
victim’s or actor’s intimate parts for the purpose
of degrading or humiliating the victim or
sexually arousing or sexually gratifying the
actor. Sexual contact of the actor with himself
must be in view of the victim whom the actor
knows to be present . . . .
Id. § 2C:14-1(d). Intimate parts are “sexual organs, genital
area, anal area, inner thigh, groin, buttock or breast of a
person.” Id. § 2C:14-1(e).
The federal analog to Salmoran’s fourth-degree
possession of child pornography conviction is found in 18
U.S.C. § 2252(a)(4)(B), a violation of which the INA lists as
an aggravated felony. See 8 U.S.C. § 1101(a)(43)(I) (stating
that “an offense described in section 2251, 2251A, or 2252 of
9
Title 18 (relating to child pornography)” is an aggravated
felony). Section 2252 in relevant part renders it a punishable
offense to:
knowingly possess[], or knowingly access[] with
intent to view, 1 or more books, magazines,
periodicals, films, video tapes, or other matter
which contain any visual depiction that has been
mailed, or has been shipped or transported using
any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign
commerce, or which was produced using
materials which have been mailed or so shipped
or transported, by any means including by
computer, if—
(i) the producing of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct; and
(ii) such visual depiction is of such conduct . . . .
18 U.S.C. § 2252(a)(4)(B). 8, 9 Sexually explicit conduct means
actual or simulated “sexual intercourse, including genital-
8
A minor is “any person under the age of eighteen
years.” Id. § 2256(1).
9
As the IJ recognized, the federal offense’s inclusion
of interstate or foreign commerce element is of no moment for
purposes of our analysis. See Torres v. Lynch, 136 S. Ct. 1619,
1623 (2016) (holding that a state crime qualifies as an
aggravated felony under the INA if it “corresponds to a
specified federal offense in all ways but one—namely, the state
10
genital, oral-genital, anal-genital, or oral-anal”; bestiality;
masturbation; sadistic or masochistic abuse; or “lascivious
exhibition of the genitals or pubic area of any person.” Id.
§ 2256(2)(A).
The BIA determined that “there is no meaningful
distinction between the statutory definitions” of “prohibited
sexual act” used in the state statute and “sexually explicit
conduct” used in the federal statute. We disagree and conclude
that the plain language of section 2C:24-4(b)(5)(b)
encompasses a broader range of conduct than its federal
counterpart.
First, among the conduct that the state statute
criminalizes, by means of its definition of “sexual contact,” is
the knowing possession of a visual depiction of an intentional
touching, “either directly or through clothing,” of the inner
thigh, breasts, or buttocks by either the minor victim or adult
actor “for the purpose of degrading or humiliating the victim
or sexually arousing or sexually gratifying the actor.” N.J.
Stat. Ann. § 2C:14-1(d). By contrast, in terms of conduct other
than sexual acts and sadistic or masochist abuse, the federal
offense prohibits the “lascivious exhibition” of only the
“genitals or pubic area of any person.” 10 18 U.S.C. §
crime lacks the interstate commerce element used in the federal
statute to establish legislative jurisdiction”).
10
We have explained that:
[A]s used in the child pornography statute, the
ordinary meaning of the phrase “lascivious
exhibition” means a depiction which displays or
brings forth to view in order to attract notice to
11
2256(2)(A). Because the statute of conviction would then, for
example, criminalize possession of a video depicting an adult
actor intentionally touching the breasts of a minor victim for
the purpose of sexually gratifying the actor, it does not
categorically fall within the federal child pornography
definition. Cf. United States v. Gleich, 397 F.3d 608, 614 (8th
Cir. 2005) (concluding that “taking pictures of a non-pubic
area such as the buttocks does not meet the definition of
‘sexually explicit conduct,’” as set forth in 18 U.S.C. §
2256(2)(A)).
Second, Salmoran asserts that section 2C:24-4(b)(5)(b)
is categorically over inclusive for another reason: the state
statutory provision criminalizes “[n]udity, if depicted for the
the genitals or pubic area of children, in order to
excite lustfulness or sexual stimulation in the
viewer. Such a definition does not contain any
requirement of nudity . . . . Nor does such a
definition contain or suggest a requirement that
the contours of the genitals or pubic area be
discernible or otherwise visible through the child
subject’s clothing.
United States v. Knox, 32 F.3d 733, 745–46 (3d Cir. 1994).
“‘[L]asciviousness is not a characteristic of the child
photographed but of the exhibition which the photographer sets
up for an audience that consists of himself or like minded
pedophiles.’ . . . [T]he focus must be on the intended effect,
rather [than] the actual effect, on the viewer.” United States v.
Larkin, 629 F.3d 177, 184 (3d Cir. 2010) (alteration added)
(quoting United States v. Wiegand, 812 F.2d 1239, 1244 (9th
Cir. 1987)).
12
purpose of sexual stimulation or gratification of any person
who may view such depiction,” even if there is no
accompanying depiction of a sexual act or exhibition of the
genitals or pubic area. The BIA rejected this argument in part
by stating:
New Jersey’s definition appears to be more
specific than the federal definition,
differentiating exhibition of the genitalia and
nudity, and requiring more than simple nudity
but rather nudity depicted for the purpose of
sexual stimulation or gratification. . . . [T]he
Third Circuit . . . held in United States v. Knox,
32 F.3d 733 (3d Cir. 1994), that the inclusion of
“lascivious exhibition of the genitals or pubic
area of any person” in the federal definition is
broader than a similar Pennsylvania definition
which requires actual nudity. “Notably, nudity
alone is not enough for ‘lasciviousness,’ since, as
the Third Circuit noted, the phrase ‘exhibition of
the genitals or pubic area’ in § 2256(2) is
qualified by the term ‘lascivious.’”
App. 7 (citation omitted) (quoting Doe v. Chamberlin, 139 F.
Supp. 2d 637, 641 (M.D. Pa. 2001)).
The BIA’s reasoning is flawed. Most importantly, the
analysis fails to account for the express emphasis on “genitals
or pubic area” contained in the federal definition. The state
statute, meanwhile, applies to any nudity—and not necessarily
that which shows genitals or the pubic area—depicted for the
purpose of sexual stimulation or gratification. Furthermore,
the statute of conviction’s purpose element does not undercut
Salmoran’s contention that there are depictions criminalized by
13
the New Jersey statute that would not fall within the ambit of
§ 2252. Despite the BIA’s statement, it need not be true that
“images that depict nudity for the purpose of sexual stimulation
or gratification under New Jersey law would necessarily depict
lascivious exhibition of the genitals under the definition [at] 18
U.S.C. § 2256(2)(A)(v).” Id. (emphasis added).
The Government argues unpersuasively that the
analysis this Court employs to determine whether there is
“lascivious exhibition of the genitals or pubic area of any
person,” see United States v. Villard, 885 F.2d 117, 122 (3d
Cir. 1989), means that depictions that contain other “hallmarks
of lascivious conduct” may be criminalized even in the absence
of a focus on the genitals or pubic area. 11 Resp’t’s Br. 30
11
In Villard, we adopted the so-called Dost factors
(taken from United States v. Dost, 636 F. Supp. 828 (S.D. Cal.
1986)) “as a means of determining whether a genital exhibition
is ‘lascivious.’” 885 F.2d at 122. These factors are:
1) whether the focal point of the visual depiction
is on the child’s genitalia or pubic area;
2) whether the setting of the visual depiction is
sexually suggestive, i.e., in a place or pose
generally associated with sexual activity;
3) whether the child is depicted in an unnatural
pose, or in inappropriate attire, considering the
age of the child;
4) whether the child is fully or partially clothed,
or nude;
14
(quoting United States v. Larkin, 629 F.3d 177, 182 (3d Cir.
2010)). We did in United States v. Larkin conclude that two
photographs that did not satisfy the first Dost factor of focusing
on the minor’s genitalia were nonetheless lascivious. 629 F.3d
177, 182-85 (3d Cir. 2010). There is a distinction, however,
between depictions where the focus is not on the genitals or
pubic area and those that do not at all feature those regions—
and in the photographs in Larkin, the minor is “completely
nude.” Id. at 183, 185; see id. at 184 (“Nothing but B.L.’s
entire nude body, with an emphasis on her breasts, is depicted
in this photograph. Although the genitals are visible because
the child is naked, factor one is not present because the focus
is not on the genitalia.”). Indeed, we expressly held in Knox
that “the question whether the depiction at issue visually
exhibits the genitals or pubic area is a threshold determination
not necessarily guided by the Dost factors.” 32 F.3d at 751;
see also United States v. McGrattan, 504 F.3d 608, 613–14
(6th Cir. 2007) (considering a state statute that prohibited “all
lewd exhibitions of nudity involving minors” and
acknowledging that its application to “someone who possessed
depictions of nudity which were lewd, but which did not
involve the genitals” would be overbroad). We therefore agree
5) whether the visual depiction suggests sexual
coyness or a willingness to engage in sexual
activity;
6) whether the visual depiction is intended or
designed to elicit a sexual response in the viewer.
Id. “[N]o single factor should be given undue weight and . . .
a depiction need not involve all the factors in order to be
‘lascivious.’” Id.
15
with Salmoran that the BIA’s analysis as to overbreadth was
erroneous.
2. Realistic Probability
Although we have determined that the language of
section 2C:24-4(b)(5)(b) plainly encompasses a broader range
of conduct than the federal offense, the Government contends
that Salmoran must still identify “a decision demonstrating that
the State applies N.J. Stat. Ann. § 2C:24-4(b)(5)(b) to images
beyond those contemplated by its federal counterpart.”
Resp’t’s Suppl. Br. 3. Admittedly, this argument is not wholly
baseless and finds some support in the language of Duenas-
Alvarez that “[t]o show . . . realistic probability, an offender . .
. must at least point to his own case or other cases in which the
state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues.” 549 U.S. 183, 193
(2007); see also Moncrieffe, 569 U.S. at 205–06 (stating that if
comparing Ҥ 1101(a)(43)(C), which refers to a federal
firearms statute that contains an exception for ‘antique
firearm[s],’” with a “state firearms law that lacks such an
exception,” “a noncitizen would have to demonstrate that the
State actually prosecutes the relevant offense in cases
involving antique firearms” to “defeat the categorical
comparison in this manner”).
Indeed, we recognize that said language has caused
some confusion in the courts of appeals. For example, the
United States Court of Appeals for the Fifth Circuit, like the
BIA, requires proof of actual prosecution even where the crime
of conviction contains broader language. See, e.g., United
States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir. 2017)
(“There is no exception to the actual case requirement
articulated in Duenas-Alvarez where a court concludes a state
16
statute is broader on its face. Indeed, the Court in Duenas-
Alvarez emphasized that a defendant must ‘at least’ point to an
actual state case . . . .” (quoting Duenas-Alvarez, 549 U.S. at
193)); see also Matter of Ferreira, 26 I. & N. Dec. 415, 420–
21 (B.I.A. 2014) (“[T]he import of Moncrieffe and Duenas-
Alvarez is that even where a State statute on its face covers a
type of object or substance not included in a Federal statute’s
generic definition, there must be a realistic probability that the
State would prosecute conduct falling outside the generic
crime in order to defeat a charge of removability.”).
Our Court’s precedent, however, takes the alternative
approach. In Singh v. Attorney General, we highlighted that
the relevant elements of the statutes at issue in Moncrieffe and
Duenas-Alvarez were identical. 12 839 F.3d at 286 n.10. But
12
In Moncrieffe, the Court compared a Georgia crime
of conviction for possession of marijuana with intent to
distribute to a federal drug trafficking crime. 569 U.S. at 188–
89. The petitioner there argued that the state statute, which
“punishe[d] all marijuana distribution without regard to the
amount or remuneration,” was not categorically an aggravated
felony because it proscribed conduct described by both 18
U.S.C. § 841’s felony and misdemeanor provisions. Id. at 189–
90.
In Duenas-Alvarez, the petitioner was convicted of
violating a California statutory provision that criminalizes the
conduct of any person who drives or takes another’s vehicle
(without consent and with intent to deprive the owner of title
or possession) “or any person who is a party or an accessory to
or an accomplice in the driving or unauthorized taking or
stealing.” 549 U.S. at 187 (emphasis omitted) (quoting Cal.
Veh. Code Ann. § 10851(a) (West 2000)). He argued that
17
where “the elements of the crime of conviction are not the same
as the elements of the generic federal offense,” we explained,
we believe “the ‘realistic probability’ language” (or, the
“‘realistic probability’ inquiry”) of Moncrieffe is “simply not
meant to apply.” Id.; see id. at 286 (holding that the BIA “erred
in conducting a ‘realistic probability’ inquiry” in ascertaining
whether a Pennsylvania drug conviction was an aggravated
felony); see also Swaby v. Yates, 847 F.3d 62, 66 (1st Cir.
2017) (“The state crime at issue clearly does apply more
broadly than the federally defined offense. Nothing in
Duenas–Alvarez, therefore, indicates that this state law crime
may be treated as if it is narrower than it plainly is.”); Ramos
v. Att’y Gen., 709 F.3d 1066, 1071–72 (11th Cir. 2013)
(explaining that Duenas-Alvarez does not control where the
statute’s language itself “creates the ‘realistic probability’ that
a state would apply the statute to conduct beyond the generic
definition”); United States v. Grisel, 488 F.3d 844, 850 (9th
Cir. 2007) (“Where, as here, a state statute explicitly defines a
crime more broadly than the generic definition, no ‘legal
imagination’ is required to hold that a realistic probability
exists that the state will apply its statute to conduct that falls
outside the generic definition of the crime.” (citation omitted)
(quoting Duenas-Alvarez, 549 U.S. at 193)).
Singh v. Attorney General, therefore, forecloses the
Government’s contention and prevents placing an undue
California caselaw “makes a defendant criminally liable for
conduct that the defendant did not intend, not even as a known
or almost certain byproduct of the defendant’s intentional
acts,” and application of the state statute therefore “creates a
subspecies of the Vehicle Code section crime that falls outside
the generic definition of ‘theft.’” Id. at 191, 194.
18
burden on petitioners of identifying cases of actual prosecution
where the statute expressly authorizes the state government to
enforce broader conduct. 13 In these situations, it is a matter of
semantics as to whether we state that the realistic probability
inquiry is not meant to apply, see Singh v. Att’y Gen., 839 F.3d
at 286 n.10, or the realistic probability requirement is
necessarily satisfied because “legal imagination” is not needed,
13
Despite the Government’s argument to the contrary,
Singh’s application of the modified categorical approach and
the controlled substance schedule context do not provide bases
to distinguish when proof of actual prosecution is required for
the realistic probability inquiry. See Singh v. Att’y Gen., 839
F.3d at 279 n.2 (“The modified categorical approach is not
distinct from the categorical approach, but rather a ‘tool for
implementing the categorical approach.’” (quoting Descamps,
570 U.S. at 262)).
Moreover, our opinion in Lewin v. Attorney General,
885 F.3d 165 (3d Cir. 2018), is consistent with the reasoning
in Singh. In Lewin, we rejected the petitioner’s argument that
his New Jersey conviction for receipt of stolen property was
broader than the generic federal offense of receiving stolen
property. Id. at 170. The petitioner challenged “the sufficiency
of the mens rea element of [the state] offense,” id. at 167, but
the statute of conviction “refer[red] to a specific defendant’s
knowledge or belief,” which aligned with the intent element of
the generic federal offense, see id. at 169-70. The elements of
the statute of conviction and the generic offense were thus the
same; our note that “[a]t most, [the petitioner] raise[d] a
theoretical” claim that does not satisfy the Moncrieffe realistic
probability requirement was appropriate in that context. Id. at
170.
19
see Grisel, 488 F.3d at 850. Here, because section 2C:24-
4(b)(5)(b) plainly encompasses more conduct than its federal
counterpart, Salmoran does not need to identify cases in which
New Jersey actually prosecuted overbroad conduct. The
statute of conviction does not constitute an aggravated felony.
B. Crime of Child Abuse
Having concluded that section 2C:24-4(b)(5)(b) does
not qualify as an aggravated felony as defined in 8 U.S.C. §
1101(a)(43)(I), we next consider whether Salmoran is
nevertheless removable because the conviction constituted a
crime of child abuse.
The INA does not define “crime of child abuse,” nor is
the phrase’s meaning as used in the statute “plain and
unambiguous”; as a result, under Chevron, we must defer to
the BIA’s interpretation of the phrase if it is “based on a
permissible construction of the statute.” Mondragon-
Gonzalez, 884 F.3d at 158 (quoting Florez v. Holder, 779 F.3d
207, 211 (2d Cir. 2015)). We recently addressed that precise
issue in Mondragon-Gonzalez, in which we held that the BIA’s
broad interpretation of a crime of child abuse is reasonable and
is owed deference. 14 Id. at 158–59. The agency defines “crime
of child abuse” as:
any offense involving an intentional, knowing,
reckless, or criminally negligent act or omission
14
While we defer to the Board’s interpretation of
“crime of child abuse,” we owe no deference to—and review
de novo—its categorical approach determination. See Singh v.
Att’y Gen., 677 F.3d at 508.
20
that constitutes maltreatment of a child or that
impairs a child’s physical or mental well-being,
including sexual abuse or exploitation. At a
minimum, this definition encompasses
convictions for offenses involving the infliction
on a child of physical harm, even if slight; mental
or emotional harm, including acts injurious to
morals; sexual abuse, including direct acts of
sexual contact, but also including acts that
induce (or omissions that permit) a child to
engage in prostitution, pornography, or other
sexually explicit conduct; as well as any act that
involves the use or exploitation of a child as an
object of sexual gratification . . . .
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (B.I.A.
2008); see also Matter of Soram, 25 I. & N. Dec. 378, 381
(B.I.A. 2010) (holding that “proof of actual harm or injury to
the child” is not required).
The conviction at issue here categorically matches the
part of the BIA’s definition of child abuse that includes “any
act that involves the use or exploitation of a child as an object
of sexual gratification.” Matter of Velazquez-Herrera, 24 I. &
N. Dec. at 512. Although Salmoran argues that possession of
child pornography does not entail exploitation of the child, this
position is untenable. As the Supreme Court has noted, “[t]he
harms caused by child pornography . . . are . . . extensive
because child pornography is ‘a permanent record’ of the
depicted child’s abuse, and ‘the harm to the child is
exacerbated by [its] circulation.’” Paroline v. United States,
572 U.S. 434, 440 (2014) (quoting New York v. Ferber, 458
U.S. 747, 759 (1982)); cf. Osborne v. Ohio, 495 U.S. 103, 111
(1990) (noting that the existence of the pornography “haunt[s]
21
the children in years to come”). Possession of child
pornography thus perpetuates the abuse of that child and
amounts to “use or exploitation” because of the content,
purpose, and effect of possessing the images. Salmoran’s state
offense therefore falls squarely within the BIA’s definition of
the generic offense.
IV. Conclusion
While Salmoran is removable for having committed a
crime of child abuse, 15 he may nevertheless file an application
for cancellation of removal because his state child pornography
conviction does not constitute an aggravated felony. We will
accordingly grant the petition for review in part, deny it in part,
and remand for further proceedings to allow Salmoran the
opportunity to apply for cancellation of removal.
15
We consequently decline Salmoran’s request to
order DHS to facilitate his return to the United States.
22