FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LARRY LLOYD MERO, No. 17-70929 Petitioner, Agency No. v. A011-698-387 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 23, 2020 * Las Vegas, Nevada Filed May 1, 2020 Before: William A. Fletcher, Jay S. Bybee, and Paul J. Watford, Circuit Judges. Opinion by Judge Watford * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 MERO V. BARR SUMMARY ** Immigration The panel granted in part Larry Mero’s petition for review of a decision of the Board of Immigration Appeals finding him removable, holding that Mero’s conviction for “[p]ossession of visual presentation depicting sexual conduct of person under 16 years of age,” in violation of Nevada Revised Statutes (N.R.S.) § 200.730, is not a “sexual abuse of a minor” aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Applying the categorical approach, the panel compared the elements of N.R.S. § 200.730 with the applicable definition of “sexual abuse of a minor,” which requires proof of three elements: (1) sexual conduct, (2) with a minor, (3) that constitutes abuse. The panel concluded that N.R.S. § 200.730 punishes a broader range of conduct because the Nevada statute does not require proof that the offender participated in sexual conduct with a minor, as required under the first two elements of the federal generic definition. Observing that the BIA held in the alternative that N.R.S. § 200.730 qualified as an aggravated felony under a separate definition, 8 U.S.C. § 1101(a)(43)(I), which encompasses certain offenses relating to child pornography, the panel granted the government’s request for remand on that issue. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MERO V. BARR 3 COUNSEL Dominique Geller, Law Office of Dominique Geller LLC, Las Vegas, Nevada, for Petitioner. Douglas E. Ginsburg, Assistant Director; Benjamin Mark Moss, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. OPINION WATFORD, Circuit Judge: The Immigration and Nationality Act authorizes the removal of any non-citizen who, after admission to the United States, “is convicted of an aggravated felony,” a term defined to include, among other offenses, “sexual abuse of a minor.” 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). The Department of Homeland Security charged petitioner Larry Mero with being removable based on his conviction for “[p]ossession of visual presentation depicting sexual conduct of person under 16 years of age,” in violation of Nevada Revised Statutes (N.R.S.) § 200.730. The government asserted that this offense constitutes “sexual abuse of a minor,” and over Mero’s objection both an immigration judge and the Board of Immigration Appeals (BIA) agreed. Mero petitions for review of the BIA’s decision, which we review de novo. See Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152, 1156–57 (9th Cir. 2008) (en banc), abrogated on ...
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