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 ...
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