Emilio Moreno v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-1974 _____________ EMILIO FABIAN MORENO, AKA Emilio Fabian Acuna Moreno, AKA Emilio Fabian Acuna, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _____________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency Case No. A204-209-869) Immigration Judge: Honorable Kuyomars Q. Golparvar ______________ Argued November 14, 2017 ______________ Before: VANASKIE, SHWARTZ, and FUENTES Circuit Judges (Opinion Filed: April 9, 2018) Wayne P. Sachs, Esq. [Argued] 1518 Walnut Street Suite 702 Philadelphia, PA 19102 Counsel for Petitioner Jefferson B. Sessions, III, Esq. Jaclyn E. Shea, Esq. [Argued] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent ________________ OPINION ________________ VANASKIE, Circuit Judge. Petitioner Emilio Fabian Moreno was ordered removed to his native country of Argentina after the Board of Immigration Appeals found that his conviction for possession of child pornography under 18 Pa. Cons. Stat. § 6312(d) constituted a crime involving moral turpitude (“CIMT”). In his petition for review, Moreno argues that, under the categorical approach, the least culpable conduct hypothetically 2 necessary to sustain a conviction under § 6312(d) is not morally turpitudinous. We disagree. Pennsylvania’s community consensus, as gauged by case law and legislative enactments, condemns the least culpable conduct punishable under § 6312(d) as morally turpitudinous. We therefore will deny Moreno’s petition for review. I. Forty-nine-year-old petitioner Emilio Fabian Moreno, a native and citizen of Argentina, was admitted to the United States under a grant of humanitarian parole in May of 1980. 1 On August 4, 2015, Moreno pleaded guilty to one count of possession of child pornography under subsection (d) of Pennsylvania’s “Sexual abuse of children” statute, 18 Pa. Cons. Stat. § 6312. The Philadelphia County Court of Common Pleas sentenced Moreno to five years of probation, ordered that he forfeit his computer, and required him to register as a sex offender. Moreno does not challenge his conviction. The Department of Homeland Security (“DHS”) initiated removal proceedings against Moreno on April 5, 2016, charging him as removable for having been convicted of a crime involving moral turpitude under 8 U.S.C. § 1 Pursuant to 8 U.S.C. § 1182(d)(5)(A), “[t]he Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States . . . .” 3 1182(a)(2)(A)(i)(I). 2 Moreno thereafter filed a Motion to Terminate Proceedings, challenging his removability on the ground that a conviction under § 6312(d) does not rise to the level of a CIMT. The Immigration Judge (“IJ”) denied Moreno’s motion and ordered him removed to Argentina. Moreno then filed an appeal with the Board of Immigration Appeals (“BIA”). In a single-member, unpublished, non-precedential decision, the BIA rejected Moreno’s contention that his conviction did not qualify as a CIMT. This timely ...

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