June 19, 2018
Petition for Review of an Order of the Board of Immigration
Appeals (Agency No. A095-475-043) Immigration Judge:
Honorable Silvia Arellano
Matthew J. Archambeault [Argued] Law Office of Michael J.
Archambeault Counsel for Petitioner
Brianne W. Cohen, Lindsay Dunn [Argued] United States
Department of Justice Counsel for Respondent
Before: GREENAWAY, JR., RESTREPO, and BIBAS, Circuit Judges.
GREENAWAY, JR., Circuit Judge.
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 aggravated felony relating
to child pornography.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.
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). The statute provides that:
Any person who knowingly possesses or knowingly views any
photograph, film, videotape, computer program or file, video
game 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
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. 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
aggravated felony for child pornography and a crime of child
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.
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
Jurisdiction and Standard of Review
had jurisdiction pursuant to 8 C.F.R. §§
1003.1(b)(3) and 1240.15, and it exercised jurisdiction over
the 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).
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).
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. See, e.g., Mondragon-Gonzalez
v. Att'y 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)).
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
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 interpretation of a state criminal statute,"