Victor Frutis Salmoran v. Attorney General United States

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