UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

OSCAR SERRATO-NAVARRETE, a/k/a Oscar Serrato-Navarette, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. Nos. 14-9559 & 14-9578 (Petitions for Review)

ORDER AND JUDGMENT *

Before MORITZ , PORFILIO , and BALDOCK , Circuit Judges.

Petitioner Oscar Serrato-Navarrete, a native and citizen of Mexico, seeks review of the decision by the Board of Immigration Appeals (BIA) upholding the order of removal by the immigration judge (IJ) based on Petitioner’s conviction for an aggravated felony. In a consolidated petition, Petitione r also seeks review of the

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 11, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - BIA’s order denying his moti on to reopen. We have jurisdiction under 8 U.S.C. § 1252(a)(1), as limited by § 1252(a)(2)(C ), (D), and we deny the consolidated petitions.
B ACKGROUND Petitioner became a lawful permanent re sident of the United States in 2001 through adjustment of status. In 2013, he pleaded guilty in Colorado to possession of child pornography in violation of Colo . Rev. Stat. § 18-6-403(3)(b.5) (sexual exploitation of a child, possession of ma terial). The Department of Homeland Security charged him with being rem ovable under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his conviction of an aggravated fe lony of child pornogra phy. As relevant here, an “aggravated felony” includes a conviction for child pornography “as described in [18 U.S.C. §§] 2251, 2251A or 2252.” 8 U.S.C. § 1101(a)(43)(I). Petitioner argued before the IJ and the BIA that his conviction for possession of child pornography was not an aggravated felony. The IJ rejected his argument, relying on the BIA’s decision in Matter of R-A-M- , 25 I. & N. Dec. 657, 658-59 (BIA 2012), which held that a Califor nia conviction for possession of child pornography is an aggravated felony because it is fundamentally the same as an offense described in 18 U.S. C. § 2252(a)(4)(B). The BIA, in a decision by a single Board member, dismissed Petitioner’s appeal. It concluded Petiti oner’s conviction of sexual exploitation of a chil d in violation of § 18-6- 403(3)(b.5) categorically qualified as an offense described in § 2 252(a)(4)(B), knowingly possessing material- 3 - visually depicting the use of a minor enga ging in sexually explicit conduct. The BIA rejected Petitioner’s argument that the Colorado statute is broader than the federal statute. Petitioner filed a pe tition for review, No. 14-9559, and also moved to reopen his removal proceedings on the ground that he had filed a post-conviction motion in state court to withdraw his guilty plea. The BIA denied his motion to reopen. Petitioner filed a second petition for review to challenge that decision, No. 14-9578, and the two petitions have been consolidated.
D ISCUSSION In No. 14-9559, Petitioner argue s the BIA erred in concluding § 18-6-403(3)(b.5) constitutes an aggravat ed felony under § 1101(a)(43)(I). He contends Colorado’s statute is broader th an, and thus not a ca tegorical match to, § 2252(a)(4)(B). Thus he contends the BIA should have, but did not, conduct an alternative modified categorical analysis of the two statut es. “[O]ur jurisdiction to review an order of removal against an a ggravated felon is significantly limited: we may review the removal order only to th e extent [P]etitioner raises constitutional or legal challenges to the order[.]” Waugh v. Holder , 642 F.3d 1279, 1281 (10th Cir. 2011). We review these legal a nd constitutional issues de novo. See Brue v. Gonzales , 464 F.3d 1227, 1232 (10t h Cir. 2006). Because the BIA issued its own decision, we review only its decision. Rivera-Barrientos v. Holder , 666 F.3d 641, 645 (10th Cir. 2012).- 4 - Courts generally use what is referred to as the “‘ categorical approach’ to determine whether [a] state offense is comparable to an offense listed [as an aggravated felony under § 1101(a)(43)].” Moncrieffe v. Holder , 133 S. Ct. 1678, 1684 (2013). Under the categorical appro ach, courts “look not to the facts of the particular prior case, but instead to whet her the state statute defining the crime of conviction categorically fits within the ge neric federal definiti on of a corresponding aggravated felony” Id . (internal quotation marks omitted); see also Ibarra v. Holder , 736 F.3d 903, 907 (10th Ci r. 2013) (“The categorical approach first requires ignoring a petitioner’s actual conduct a nd examining only the minimum conduct needed for a conviction under the relevant state law.”). Petitioner argues Colorado’s possession-of-child-pornography statute criminalizes conduc t broader than the federal statute, and therefore is not a categorical match. Specifically, he argues that Colorado’s § 18-6-403 criminalizes posse ssion of material depicting a minor “engaged in, participating in, observing, or being used for” sexually explicit conduct, whereas § 2252(a)(4)(B) only refers to th e depiction of a minor “engaging in” sexually explicit conduct. The Colorado statute under which Petiti oner was convicted criminalizes the knowing possession or control of “any sexually exploitative material for any purpose,” with exceptions not relevant here for peace o fficers, licensed physicians, psychologists and the like. § 18-6-403(3)(b.5). “Sexually exploitative material,” in turn, is defined as “any photogr aph, motion picture, video, video tape, print, negative,- 5 - slide, or other mechanically , electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, obs erving, or being used for explicit sexual conduct.” Colo. Rev. Stat. § 18-6-403(j) (emphasis added). The relevant federal statute crim inalizes the knowing possession of 1 or more books, magazines, periodical s, films, video tapes, or other matter which contain any visual depiction that ha s been mailed, or has been shipped or transported using any means of facility of interstate or foreign commerce or in or affecti ng interstate 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 in volves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct. § 2252(a)(4)(B) (emphasis added). The BIA rejected Petitioner’s argument. It concluded the broader adjectives in the Colorado statute—“participating in, observing, or being used for”—do not describe functionally differe nt conduct than “engaging in” and that all of the additional adjectives in Co lorado’s statute are covere d by the term “engaging in” found in § 2252(a)(4)(B). Th e BIA determined there was no realistic probability that an individual would be prosecuted in Co lorado under § 18-6-403(3)(b.5) for conduct that would not be described in § 2252(a )(4)(B) and it was clear that Congress and Colorado seek to crimina lize the same conduct. In undertaking a categorical analysis, “we must presume that the conviction rested upon nothing more than the least of the acts crim inalized, and then determine whether even those acts are encompassed by the gene ric federal offense.”- 6 - Moncrieffe , 133 S. Ct. at 1684 (internal quotation marks omitted). But the Supreme Court has warned this “is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theo retical possibili ty, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’” Id . at 1684-85 (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193 (2007)). To conclude there is such a re alistic probability, there must “at least” be “cases in which the state c ourts in fact did apply th e statute in the special (nongeneric) manner for wh ich [Petitioner] argues.” Duenas-Alvarez , 549 U.S. at 193. We cannot conclude there is a realis tic probability that a person would be prosecuted under Colorado’s § 18-6-403(3)(b .5) for conduct that would not be “described in” § 2252(a)(4)(B). We have found no case that su pports Petitioner’s theory that a minor shown “participating in , observing, or being used for” explicit sexual conduct, or even most narrowly simply “observing” explicit sexual conduct, is not “engaged in” such conduct. Black’s Di ctionary defines “enga ge” as “[t]o employ or involve oneself; to take part in . . . .” Black’s Law Dictionary 646 (10th ed. 2014). In turn, Merriam-Webster’s Dictionary defines “involve” to include “to cause (someone) to be included in so me activity, situation, etc.: to cause (someone) to take part in something” or “to cause (someone) to be associated with someone or something.” http://www.merriam-webster.com/dictionary/involve . Thus, a minor observing explicit sexual conduc t is being involved in and associated with such- 7 - conduct within the meaning of “engaging in ” in § 2252(a)(4)(B). We agree with the BIA that the Colorado statut e criminalizes the same cond uct as § 2252(a)(4)(B), and that the additional descriptiv e adjectives of “participa ting in, observing, or being used for” explicit sexual c onduct are all covered by the phrase “engaged in” sexually explicit conduct. Thus, we agree with the BIA’s dete rmination that conviction of child pornography under § 18-6-403( 3)(b.5) is categorically an offense described in § 2252(a)(4)(B), and, thus, is an aggr avated felony under § 1101(a)(43)(I). Accordingly, we need not reach Petitioner’ s alternative argument that the BIA erred in not proceeding to conduct a m odified categorical analysis. See United States v.
Trent , 767 F.3d 1046, 1052 (10th Cir. 2014) (expl aining that if the state statute at issue is a “divisible” statute that “sets out one or more el ements of the offense in the alternative,” some of which match the relevant definition of an aggravated felony and some of which do not, courts proceed to a modified categorical analysis under which they “examine[] certain definitive unde rlying documents to determine which alternative the [pet itioner’s] conviction satisfied ” (internal quotations marks omitted)), cert. denied , 2015 WL 732162 (U.S. Feb. 23, 2015) (No. 14-7762). In No. 14-9578, Petitioner seeks review of the BIA’s August 5, 2014 order denying his motion to reopen. We review the BIA’s denial of a motion to reopen for an abuse of discretion. Maatougui v. Holder , 738 F.3d 1230, 1239 (10th Cir. 2013). But Petitioner’s brief advances no argument th at could be deemed a challenge to the- 8 - BIA’s exercise of discretion. He does not offer any argument at all regarding the denial of his motion to reope n and thus has waived any a ppellate challenge to that order. See Iliev v. Holder , 613 F.3d 1019, 1026 n.4 (10th Cir. 2010) (invoking waiver doctrine to bar review of inadequately developed argument). The petitions are denied. Entered for the Court
Bobby R. Baldock Circuit Judge