Emilio Moreno v. Attorney General United States , 887 F.3d 160 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1974
_____________
EMILIO FABIAN MORENO,
AKA Emilio Fabian Acuna Moreno,
AKA Emilio Fabian Acuna,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
_____________
On Petition for Review of an Order of
the Board of Immigration Appeals
(Agency Case No. A204-209-869)
Immigration Judge:
Honorable Kuyomars Q. Golparvar
______________
Argued November 14, 2017
______________
Before: VANASKIE, SHWARTZ, and FUENTES
Circuit Judges
(Opinion Filed: April 9, 2018)
Wayne P. Sachs, Esq. [Argued]
1518 Walnut Street
Suite 702
Philadelphia, PA 19102
Counsel for Petitioner
Jefferson B. Sessions, III, Esq.
Jaclyn E. Shea, Esq. [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________
OPINION
________________
VANASKIE, Circuit Judge.
Petitioner Emilio Fabian Moreno was ordered removed
to his native country of Argentina after the Board of
Immigration Appeals found that his conviction for possession
of child pornography under 18 Pa. Cons. Stat. § 6312(d)
constituted a crime involving moral turpitude (“CIMT”). In
his petition for review, Moreno argues that, under the
categorical approach, the least culpable conduct hypothetically
2
necessary to sustain a conviction under § 6312(d) is not
morally turpitudinous. We disagree. Pennsylvania’s
community consensus, as gauged by case law and legislative
enactments, condemns the least culpable conduct punishable
under § 6312(d) as morally turpitudinous. We therefore will
deny Moreno’s petition for review.
I.
Forty-nine-year-old petitioner Emilio Fabian Moreno, a
native and citizen of Argentina, was admitted to the United
States under a grant of humanitarian parole in May of 1980. 1
On August 4, 2015, Moreno pleaded guilty to one count of
possession of child pornography under subsection (d) of
Pennsylvania’s “Sexual abuse of children” statute, 18 Pa.
Cons. Stat. § 6312. The Philadelphia County Court of
Common Pleas sentenced Moreno to five years of probation,
ordered that he forfeit his computer, and required him to
register as a sex offender. Moreno does not challenge his
conviction.
The Department of Homeland Security (“DHS”)
initiated removal proceedings against Moreno on April 5,
2016, charging him as removable for having been convicted of
a crime involving moral turpitude under 8 U.S.C. §
1
Pursuant to 8 U.S.C. § 1182(d)(5)(A), “[t]he Attorney
General may . . . in his discretion parole into the United States
temporarily under such conditions as he may prescribe only on
a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to
the United States . . . .”
3
1182(a)(2)(A)(i)(I). 2 Moreno thereafter filed a Motion to
Terminate Proceedings, challenging his removability on the
ground that a conviction under § 6312(d) does not rise to the
level of a CIMT. The Immigration Judge (“IJ”) denied
Moreno’s motion and ordered him removed to Argentina.
Moreno then filed an appeal with the Board of
Immigration Appeals (“BIA”). In a single-member,
unpublished, non-precedential decision, the BIA rejected
Moreno’s contention that his conviction did not qualify as a
CIMT. This timely appeal followed.
II.
The BIA had appellate jurisdiction to review the IJ’s
order of removal pursuant to 8 C.F.R. § 1003.1(b)(3). We have
jurisdiction to review Moreno’s legal and constitutional
challenges under 8 U.S.C. § 1252(a)(1).
Moreno’s petition presents two issues for our
consideration: (1) whether his conviction for possession of
child pornography under 18 Pa. Cons. Stat. § 6312(d) renders
him removable as an alien convicted of a CIMT; and (2)
whether the statutory provision deeming aliens convicted of a
CIMT inadmissible, as set forth in 8 U.S.C. §
2
“[A]ny alien convicted of, or who admits having
committed, or who admits committing acts which constitute
the essential elements of--(I) a crime involving moral turpitude
(other than a purely political offense) or an attempt or
conspiracy to commit such a crime . . . is inadmissible.” 8
U.S.C. § 1182(a)(2)(A)(i)(I).
4
1182(a)(2)(A)(i)(I), is void for vagueness under the Due
Process Clause of the Fifth Amendment.
Where, as here, the BIA issues a written decision on the
merits, “we review its decision, not that of the IJ.” Catwell v.
Att’y Gen., 623 F.3d 199, 205 (3d Cir. 2010) (citing Sheriff v.
Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009)). We exercise de
novo review over the BIA’s determination that a conviction
under 18 Pa Cons. Stat. § 6312(d) qualifies as a CIMT, Baptiste
v. Att’y Gen., 841 F.3d 601, 606 (3d Cir. 2016), as well as
Moreno’s due process challenge to the definition of CIMT,
Abdulrahman v. Ashcroft, 330 F.3d 587, 595–96 (3d Cir. 2003)
(citing Lee Moi Chong v. I.N.S., 264 F.3d 378, 386 (3d Cir.
2001)). And while we ordinarily accord deference to “the
BIA’s determination that a certain crime involves moral
turpitude,” Mehboob v. Att’y Gen., 549 F.3d 272, 275 (3d Cir.
2008) (footnote omitted) (citing Knapik v. Ashcroft, 384 F.3d
84, 88 (3d Cir. 2004)), such deference is not required where, as
here, “we are asked to review an unpublished, non-precedential
decision issued by a single BIA member.” Mahn v. Att’y Gen.,
767 F.3d 170, 173 (3d Cir. 2014). “At most,” the BIA’s
decision is “persuasive authority.” Id. (citing Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944)).
III.
A.
Under our precedent, we apply the categorical approach
to determine whether moral turpitude inheres in a particular
offense. Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir.
2005) (internal citations omitted). Our inquiry proceeds in two
steps. First, we must “ascertain the least culpable conduct
hypothetically necessary to sustain a conviction under the
5
statute.” Jean-Louis v. Att’y Gen., 582 F.3d 462, 471 (3d Cir.
2009) (citing Partyka, 417 F.3d at 411). After making this
determination, we must then ask whether the identified conduct
is morally turpitudinous, i.e., whether it is “inherently base,
vile, or depraved; contrary to the accepted rules of morality and
the duties owed other persons, either individually or to society
in general.” Mehboob, 549 F.3d at 275 (citing Partyka, 417
F.3d at 413). If so, then a conviction under 18 Pa. Cons. Stat.
§ 6312(d) qualifies as a CIMT.3
3
We pause here to echo the concerns recently expressed
by several of our colleagues about the application of the
categorical approach. See, e.g., United States v. Lewis, No. 16-
4378, 2018 WL 317776, at *5 (3d Cir. Jan. 8, 2018) (Roth, J.,
concurring in the judgment) (emphasizing the incongruity of
applying the categorical approach when the defendant has
already admitted to the underlying facts in a guilty plea);
United States v. Chapman, 866 F.3d 129, 136 (3d Cir. 2017)
(Jordan, J., concurring in the judgment) (calling attention to “a
consistently troubling feature” of the categorical approach,
namely: “its requirement that judges ignore the real world”);
Lewis, 2018 WL 317776, at *2 n.7 (majority opinion)
(expressing agreement with Judge Roth’s view concerning the
“lack of reality” entailed in applying the categorical approach);
United States v. Oliver, No. 17-2747, slip op. at n.3 (March 27,
2018) (noting the “lack of reality” associated with the
categorical approach). As applied in the immigration context,
the categorical approach requires us to undertake an academic
thought experiment that bears no relation to the factual premise
for the petitioner’s underlying conviction. Here, it is not
disputed that the Petitioner possessed child pornography. Yet,
to quote Judge Jordan, we must nevertheless “ignore facts
6
Moreno’s statute of conviction provides that a person is
guilty of possessing child pornography if he or she
“intentionally views or knowingly possesses or controls any
book, magazine, pamphlet, slide, photograph, film, videotape,
computer depiction or other material depicting a child under
the age of 18 years engaging in a prohibited sexual act or in the
simulation of such act . . . .” 18 Pa. Cons. Stat. § 6312(d).
Moreno argues that the least culpable conduct hypothetically
necessary to sustain a conviction under § 6312(d) is consensual
“sexting” between an eighteen-year-old and a seventeen-year-
old. 4
A review of case law makes clear that an adult may
indeed be convicted under § 6312(d) if found to be in
possession of sexually explicit images of minor, even if the
minor consents to the adult’s possession of the images. See
Commonwealth v. Kitchen, 814 A.2d 209, 211 (Pa. Super. Ct.
2002), aff’d, 839 A.2d 184 (Pa. 2003) (adult convicted under §
6312(d) for possessing “sexually explicit photographs of his
already known and proceed with eyes shut[,]” a course that
requires us to theorize about hypothetical conduct that may or
may not fall within the reach of the underlying statute at issue.
Chapman, 866 F.3d at 138 (Jordan, J., concurring in the
judgment). The categorical approach’s disregard of the actual
facts of a conviction fosters inconsonant results, and we would
be remiss if we did not note our dismay at having to employ
the categorical approach in this case.
4
Sexting is “the practice of sending or posting sexually
suggestive text messages and images, including nude or semi-
nude photographs, via cellular telephones or over the Internet.”
Miller v. Mitchell, 598 F.3d 139, 143 (3d Cir. 2010).
7
sixteen-year-old paramour”). And although we have not
uncovered a Pennsylvania decision that addresses the precise
scenario outlined above––i.e., where an eighteen-year-old is
found to possess consensual, sexually explicit images of a
seventeen-year-old––such exactitude is not required under our
precedent; instead, we need only “ascertain the least culpable
conduct hypothetically necessary to sustain a conviction”
under § 6312(d). Jean-Louis, 582 F.3d at 471 (internal citation
omitted) (emphasis added). To this end, it is sufficient that an
eighteen-year-old, at the very least, faces the possibility of
being charged under § 6312(d) for sexting with a minor. See,
e.g., Miller v. Mitchell, 598 F.3d 139, 143 (3d Cir. 2010)
(addressing threats made by a District Attorney to bring felony
charges against high school students suspected of sexting).
Having identified the least culpable conduct necessary
for conviction under § 6312(d), we must now assess whether
such conduct qualifies as a CIMT under the INA. Moreno
contends that possession of child pornography under § 6312(d)
cannot be regarded as a crime involving moral turpitude
because society would not find sexting between an eighteen-
year-old and a seventeen-year-old to be morally reprehensible.
A review of Pennsylvania case law and the Pennsylvania
General Assembly’s legislative enactments, however, suggests
otherwise.
The Pennsylvania legislature has long held that “the
inexperience of youth prevent[s] . . . intelligent judgment in
matters of morality.” Commonwealth v. Collin, 335 A.2d 383,
386 (Pa. 1975) (quoting Commonwealth v. Blauvelt, 140 A.2d
463, 467 (Pa. Super. Ct. 1958)); see also Commonwealth v.
Davidson, 938 A.2d 198, 215 (Pa. 2007) (“There clearly is a
compelling state interest in the protection and safeguarding of
minors. The purpose of Section 6312 is plainly to protect
8
children, end the abuse and exploitation of children, and
eradicate the production and supply of child pornography.”).
Indeed, the court in Kitchen relied upon this “protective”
principle in rendering its decision, ultimately concluding that
the defendant’s “relationship with the victim . . . [was] no
excuse for his behavior.” 814 A.2d at 213–14. There, the
defendant was charged with possession of child pornography
after taking “pornographic pictures” of his then-sixteen-year-
old girlfriend. Id. at 211–13. In upholding his conviction, the
court observed that, under Pennsylvania law, “the consent of a
child victimized by having pornographic pictures taken of
him/her [was] . . . ‘of no moment.’” Id. at 213 (quoting Collin,
335 A.2d at 386). “Clearly,” the court wrote, “no one can
legally take pornographic photographs of a child, regardless of
whether the child consents.” Id.
The notion that Pennsylvania considers an adult’s act of
sexting with a minor to be morally turpitudinous is reinforced
by the General Assembly’s enactment of 18 Pa. Cons. Stat. §
6321. Passed in 2012, § 6321 downgraded the transmission
and possession of “sexually explicit images” from a felony to
a misdemeanor or summary offense if the crime is committed
by a minor between the ages of twelve and seventeen. Notably
absent from the statute’s purview are eighteen-year-olds. Had
the legislature viewed an eighteen-year-old’s possession of
sexually explicit images of a minor to be deserving of a lesser
charge, it could have crafted the sexting statute accordingly.
Yet, the legislature unequivocally excluded eighteen-year-olds
from § 6321’s reach, opting instead to leave them within the
felony-level ambit of § 6312.
What is clear from the foregoing analysis is that, in
Pennsylvania, courts and legislators alike have taken a hard-
lined stance when it comes to safeguarding minor victims of
9
sexual abuse. From this consensus, we conclude that,
regardless of the circumstance, Pennsylvania’s accepted rules
of morality are violated when an adult possesses sexually
explicit images of a minor. We therefore reject Moreno’s
argument and conclude that the least culpable conduct
hypothetically necessary to sustain a conviction under 18 Pa.
Cons. Stat. § 6312(d) constitutes a CIMT pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(I).
B.
Moreno next argues that his conviction for possession
of child pornography under 18 Pa. Cons. Stat. § 6312(d) cannot
serve as the basis for his removal because the definition of
CIMT is void for vagueness. We disagree.
“The Due Process Clause precludes the government
from taking away a person’s life, liberty, or property under a
statute ‘so vague that it fails to give ordinary people fair notice
of the conduct it punishes, or so standardless that it invites
arbitrary enforcement.’” Baptiste, 841 F.3d at 615 (quoting
Johnson v. United States, 135 S. Ct. 2551, 2556 (2015)).
Because vagueness challenges are evaluated “on a case by case
basis[,]” we must examine 8 U.S.C. § 1182(a)(2)(A)(i)(I) to
determine whether the statute “is vague as applied” to Moreno.
San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir.
1992) (citing United States v. Mazurie, 419 U.S. 544, 550
(1975)).
Our vagueness inquiry is guided by the Supreme
Court’s decision in Jordan v. De George, 341 U.S. 223 (1951).
There, an alien twice convicted of fraud and tax evasion was
subject to deportation pursuant to a predecessor version of the
INA that authorized removal for “crimes involving moral
10
turpitude.” Id. at 224–25. Raising the constitutional issue of
vagueness sua sponte, the Court held that the phrase “crime
involving moral turpitude” was not void for vagueness because
it complied with “[t]he essential purpose of the ‘void for
vagueness’ doctrine[,]” i.e., it “warn[ed]” the defendant that,
were he to commit a crime “in which fraud was an
ingredient[,]” then the “statutory consequence” of his
conviction would be deportation. Id. at 229–32. For the Court,
“the adequacy of [the CIMT] standard” in the immigration
context was strengthened by the “significant” fact that “the
phrase ha[d] been part of the immigration laws for more than
sixty years[,]” and no court had ever “[held] that the phrase
[was] vague” or otherwise suggested that “the phrase [was] so
meaningless as to be a deprivation of due process.” Id. at 229–
30, 232.
The same rationale holds true today. We have
consistently defined a morally turpitudinous offense to be one
“that is inherently base, vile, or depraved, contrary to the
accepted rules of morality and the duties owed other persons,
either individually or to society in general.” Knapik, 384 F.3d
at 89. Applying this definition here, it is clear that “[w]hatever
else the phrase ‘crime involving moral turpitude’ may mean in
peripheral cases,” Jordan, 341 U.S. at 232, it is readily
apparent that crimes involving possession of child
pornography and sexual abuse of children are morally
turpitudinous. See, e.g., Totimeh v. Att’y Gen., 666 F.3d 109,
116 (3d Cir. 2012) (“Sexual assault, child abuse, and spousal
abuse are no doubt inherently vile and elicit strong outrage.”);
United States v. Santacruz, 563 F.3d 894, 897 (9th Cir. 2009)
(“We hold that knowing possession of child pornography is a
crime involving moral turpitude.”). Thus, like the Supreme
Court in Jordan, we conclude “that Congress sufficiently
11
forewarned [the Petitioner] that the statutory consequence” of
possessing child pornography is deportation. 341 U.S. at 232.
IV.
For the foregoing reasons, Moreno’s petition for review
is denied.
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