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Salmoran v. Attorney General United States of America

United States Court of Appeals, Third Circuit

November 26, 2018

VICTOR MANUEL FRUTIS SALMORAN, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

          Argued June 19, 2018

          On 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.

          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 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 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 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 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 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)).

         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 interpretation of a state criminal statute," ...


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