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Salmoran v. AG United States

Facts

Salmoran, a native of Mexico, was granted lawful permanent resident status in 2004. In 2015, he pled guilty to a violation of New Jersey's child pornography statute, specifically N.J. Stat. Ann. 2C:24-4(b)(5)(b). Following this conviction, the Department of Homeland Security initiated removal proceedings against him, citing his conviction as an aggravated felony and a crime of child abuse. The Immigration Judge concluded that the conviction was not an aggravated felony but was a crime of child abuse, which led to Salmoran's appeal to the Board of Immigration Appeals.

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). 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.

Issue

Did Salmoran's conviction under New Jersey law for possession of child pornography constitute an aggravated felony under federal law, and was he removable based on that conviction?

Did Salmoran's conviction under New Jersey law for possession of child pornography constitute an aggravated felony under federal law, and was he removable based on that conviction?

Rule

The court applied the categorical approach to determine whether the state statute defining the crime of conviction categorically fits within the generic federal offense of child pornography as defined in 18 U.S.C. 2252.

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.

Analysis

The court analyzed the definitions of 'prohibited sexual act' under New Jersey law and 'sexually explicit conduct' under federal law, concluding that the New Jersey statute encompassed a broader range of conduct than its federal counterpart. The court noted that the state statute criminalized possession of depictions that included nudity for sexual gratification, which did not necessarily align with the federal definition that focused on lascivious exhibitions of genitals or pubic areas.

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.

Conclusion

The court concluded that Salmoran was removable based on his conviction for child abuse, as it matched the BIA's definition, but his conviction did not qualify as an aggravated felony under federal law.

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.

Who won?

The government prevailed in part, as the court upheld the removal based on the child abuse conviction, but Salmoran succeeded in arguing that his conviction did not constitute an aggravated felony.

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.

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