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)
2

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 
3

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).
4

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 child pornography; and (3) a crime of child 

abuse, child neglect, or child abandonment.4

 The Immigration 

Judge (“IJ”) concluded that the possession of child 

pornography offense was not categorically an aggravated 

felony for sexual abuse of a minor, but was categorically an 

 3 A child for the purposes of the statute is “any person 

under 16 years of age.” Id. § 2C:24-4(b)(1).

4 The INA includes as a class of deportable aliens “[a]ny 

alien who is convicted of an aggravated felony at any time after 

admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The statute defines 

“aggravated felony” by reference to a list of offenses. Id. 

§ 1101(a)(43). The INA also includes as a class of deportable 

aliens “[a]ny alien who at any time after admission is convicted 

of a crime of domestic violence, a crime of stalking, or a crime 

of child abuse, child neglect, or child abandonment.” Id.

§ 1227(a)(2)(E)(i). While a conviction for either a crime of 

child abuse or aggravated felony renders a lawful permanent 

resident removable, only an aggravated felony conviction 

makes an individual ineligible for cancellation of removal. See

id. § 1229b(a)(3), (b)(1)(C).
5

aggravated felony for child pornography and a crime of child 

abuse. 

Salmoran appealed the IJ’s decision and order removing 

him to Mexico. On de novo review, the Board agreed that a 

conviction under section 2C:24-4(b)(5)(b) “categorically 

constitutes a crime of child abuse, so as to subject him to 

removal on that basis.” It therefore did not address whether the 

state conviction was categorically an aggravated felony for an 

offense relating to child pornography. 

In his motion to reconsider, Salmoran requested that the 

BIA also determine his removability for having been convicted 

of an aggravated felony relating to child pornography because, 

but for the aggravated felony bar, he would be eligible for 

cancellation of removal. 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. This timely petition 

followed.5

II. Jurisdiction and Standard of Review

The BIA had jurisdiction pursuant to 8 C.F.R. §§ 

1003.1(b)(3) and 1240.15, and it exercised jurisdiction over the 

 5

 Salmoran has already been removed to Mexico. See 

Pet’r’s Br. 8; Resp’t’s Br. 8 n.5. “[A]n alien’s removal from 

the United States,” however, “does not divest a federal court of 

appeals from considering the claims raised in a petition for 

review.” Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir. 2003).
6

motion to reconsider under 8 C.F.R. § 1003.2(b). We have 

appellate jurisdiction over final orders of removal under 8 

U.S.C. § 1252(a)(1).6

“Where, as here, the BIA issues a written decision on 

the merits, we review its decision and not the decision of the 

IJ.” Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014) 

(quoting Bautista v. Att’y Gen., 744 F.3d 54, 57 (3d Cir. 2014)). 

“[W]e review the BIA’s legal determinations de novo, subject 

to Chevron principles of deference.” Denis v. Att’y Gen., 633 

F.3d 201, 205–06 (3d Cir. 2011).

III. Discussion

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.7 See, e.g., Mondragon-Gonzalez v. Att’y 

 6

 Section 1252(a)(2)(C) strips courts of jurisdiction “to 

review an order to remove an alien who commits an aggravated 

felony,” but we nonetheless retain jurisdiction “to hear 

‘constitutional claims and questions of law presented in 

petitions for review of final removal orders,’ even for those 

aliens convicted of an aggravated felony.” Restrepo v. Att’y 

Gen., 617 F.3d 787, 790 (3d Cir. 2010) (quoting Papageorgiou 

v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005)); see 8 U.S.C. 

§ 1252(a)(2)(C), (D).

7

 There are departures to our presumptive application 

of the categorical approach, but none applies here. First, there 

is no dispute as to the indivisibility of the statute of conviction 

so as to warrant the use of the modified categorical approach. 

See Descamps v. United States, 570 U.S. 254, 261-62 (2013) 
7

Gen., 884 F.3d 155, 159-60 (3d Cir. 2018) (applying the 

categorical approach in a crime of child abuse case); Singh v. 

Att’y Gen., 839 F.3d 273, 278 (3d Cir. 2016) (applying the 

categorical approach in an aggravated felony case). Under the 

categorical approach, “we look ‘not to the facts of the 

particular prior case,’ but instead to whether ‘the state statute 

defining the crime of conviction’ categorically fits within the 

‘generic’ federal” offense. Moncrieffe v. Holder, 569 U.S. 184, 

190 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 

183, 186 (2007)). Only where “a conviction of the state 

offense ‘“necessarily” involved . . . facts equating to [the] 

generic [federal offense]’” is there a categorical match. Id.

(quoting Shepard v. United States, 544 U.S. 13, 24 (2005)). 

The Supreme Court of the United States, however, has 

cautioned that this approach “is not an invitation to apply ‘legal 

imagination’ to the state offense; [rather] there must be ‘a 

realistic probability, not a theoretical possibility, that the State 

would apply its statute to conduct that falls outside the generic 

definition of a crime.’” Id. at 191 (quoting Gonzales v. 

Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

 

(describing a divisible statute as one that “comprises multiple, 

alternative versions of the crime”). Second, the terms of 

section 2C:24-4(b)(5)(b) do not “invite inquiry into the facts 

underlying the conviction at issue.” Singh v. Ashcroft, 383 

F.3d 144, 161 (3d Cir. 2004) (including as examples where the 

statute includes a qualifier like “in which the loss to the victim 

or victims exceeds $10,000” or specifies crimes “committed 

within the last two years”). 
8

A. Aggravated Felony

1. Facial Overbreadth

As a threshold matter, in considering Salmoran’s claim 

that the BIA erred in its aggravated felony determination, we 

note that Chevron deference is not implicated in our analysis. 

Under our precedent, Chevron deference is limited to the 

BIA’s reasonable interpretations of the INA and does not 

extend to its categorical approach determinations. Singh v. 

Att’y Gen., 677 F.3d 503, 508 (3d Cir. 2012). We have in some 

cases noted the “confusion surrounding the proper standard of 

review” with respect to “the role of Chevron deference in cases 

interpreting the [INA] generally, and the aggravated felony 

statute of 8 U.S.C. § 1101(a)(43) in particular.” Singh v. 

Ashcroft, 383 F.3d at 150 (quoting Patel v. Ashcroft, 294 F.3d 

465, 467 (3d Cir. 2002)). Indeed, there may be some open 

questions concerning Chevron deference to the BIA’s 

interpretation of ambiguous terms as used in section

1101(a)(43). See id. at 151–52 (“[W]e . . . expressly reserve 

decision on whether some BIA interpretations of § 1101(a)(43) 

are entitled to deference.”).

Any such concerns about deference generally, however, 

are not present in this case. Section 1101(a)(43)(I) 

incorporates by reference sections of Title 18 of the U.S. Code, 

and the BIA’s interpretations of federal criminal provisions 

outside the INA are not entitled to deference. See Francis v. 

Reno, 269 F.3d 162, 168 (3d Cir. 2001); accord Singh v. 

Gonzales, 432 F.3d 533, 538 (3d Cir. 2006). Even if there were 

a question as to the interpretation of 18 U.S.C. § 2252 in this 

case, then, it would not be “necessary [or] appropriate to defer 

to the BIA’s or IJ’s interpretation.” Singh v. Ashcroft, 383 F.3d 

at 151. Moreover, “we owe no deference to the BIA’s 
9

interpretation of a state criminal statute,” which does not entail 

the BIA’s special expertise and which the INA does not even 

incorporate by reference. Javier v. Att’y Gen., 826 F.3d 127, 

130 (3d Cir. 2016).

We therefore start on a blank slate in comparing the 

state statute of conviction and the federal offense. Salmoran’s

argument hinges in particular on the state statute’s definition 

of “prohibited sexual act” as: sexual intercourse, anal 

intercourse, masturbation, bestiality, sadism, masochism, 

fellatio, cunnilingus, “[n]udity, if depicted for the purpose of 

sexual stimulation or gratification of any person who may view 

such depiction,” or “[a]ny act of sexual penetration or sexual 

contact as defined in N.J.S.2C:14-1.” N.J. Stat. Ann. § 2C:24-

4(b)(1). Sexual contact, in turn, is defined as:

an intentional touching by the victim or actor, 

either directly or through clothing, of the 

victim’s or actor’s intimate parts for the purpose 

of degrading or humiliating the victim or 

sexually arousing or sexually gratifying the 

actor. Sexual contact of the actor with himself 

must be in view of the victim whom the actor 

knows to be present . . . . 

Id. § 2C:14-1(d). Intimate parts are “sexual organs, genital 

area, anal area, inner thigh, groin, buttock or breast of a 

person.” Id. § 2C:14-1(e). 

The federal analog to Salmoran’s fourth-degree 

possession of child pornography conviction is found in 18 

U.S.C. § 2252(a)(4)(B), a violation of which the INA lists as 

an aggravated felony. See 8 U.S.C. § 1101(a)(43)(I) (stating 

that “an offense described in section 2251, 2251A, or 2252 of 
10

Title 18 (relating to child pornography)” is an aggravated 

felony). Section 2252 in relevant part renders it a punishable 

offense to: 

knowingly possess[], or knowingly access[] with 

intent to view, 1 or more books, magazines, 

periodicals, films, video tapes, or other matter 

which contain any visual depiction that has been 

mailed, or has been shipped or transported using 

any means or facility of interstate or foreign 

commerce or in or affecting interstate or foreign 

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 

involves the use of a minor engaging in sexually 

explicit conduct; and

(ii) such visual depiction is of such conduct . . . .

18 U.S.C. § 2252(a)(4)(B).

8, 9

 Sexually explicit conduct means 

actual or simulated “sexual intercourse, including genital-

 8

 A minor is “any person under the age of eighteen 

years.” Id. § 2256(1).

9

 As the IJ recognized, the federal offense’s inclusion 

of interstate or foreign commerce element is of no moment for 

purposes of our analysis. See Torres v. Lynch, 136 S. Ct. 1619, 

1623 (2016) (holding that a state crime qualifies as an 

aggravated felony under the INA if it “corresponds to a 

specified federal offense in all ways but one—namely, the state 
11

genital, oral-genital, anal-genital, or oral-anal”; bestiality; 

masturbation; sadistic or masochistic abuse; or “lascivious 

exhibition of the genitals or pubic area of any person.” Id.

§ 2256(2)(A). 

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.

First, among the conduct that the state statute 

criminalizes, by means of its definition of “sexual contact,” is 

the knowing possession of a visual depiction of an intentional 

touching, “either directly or through clothing,” of the inner 

thigh, breasts, or buttocks by either the minor victim or adult 

actor “for the purpose of degrading or humiliating the victim 

or sexually arousing or sexually gratifying the actor.” N.J. 

Stat. Ann. § 2C:14-1(d). By contrast, in terms of conduct other 

than sexual acts and sadistic or masochist abuse, the federal 

offense prohibits the “lascivious exhibition” of only the 

“genitals or pubic area of any person.”10 18 U.S.C. §

 

crime lacks the interstate commerce element used in the federal 

statute to establish legislative jurisdiction”).

10 We have explained that:

[A]s used in the child pornography statute, the 

ordinary meaning of the phrase “lascivious 

exhibition” means a depiction which displays or 

brings forth to view in order to attract notice to 
12

2256(2)(A). Because the statute of conviction would then, for 

example, criminalize possession of a video depicting an adult 

actor intentionally touching the breasts of a minor victim for 

the purpose of sexually gratifying the actor, it does not 

categorically fall within the federal child pornography 

definition. Cf. United States v. Gleich, 397 F.3d 608, 614 (8th 

Cir. 2005) (concluding that “taking pictures of a non-pubic 

area such as the buttocks does not meet the definition of 

‘sexually explicit conduct,’” as set forth in 18 U.S.C. § 

2256(2)(A)).

Second, Salmoran asserts that section 2C:24-4(b)(5)(b) 

is categorically over inclusive for another reason: the state 

statutory provision criminalizes “[n]udity, if depicted for the 

 

the genitals or pubic area of children, in order to 

excite lustfulness or sexual stimulation in the 

viewer. Such a definition does not contain any 

requirement of nudity . . . . Nor does such a 

definition contain or suggest a requirement that 

the contours of the genitals or pubic area be 

discernible or otherwise visible through the child 

subject’s clothing. 

United States v. Knox, 32 F.3d 733, 745–46 (3d Cir. 1994). 

“‘[L]asciviousness is not a characteristic of the child 

photographed but of the exhibition which the photographer sets 

up for an audience that consists of himself or like minded 

pedophiles.’ . . . [T]he focus must be on the intended effect, 

rather [than] the actual effect, on the viewer.” United States v. 

Larkin, 629 F.3d 177, 184 (3d Cir. 2010) (alteration added)

(quoting United States v. Wiegand, 812 F.2d 1239, 1244 (9th 

Cir. 1987)). 
13

purpose of sexual stimulation or gratification of any person 

who may view such depiction,” even if there is no 

accompanying depiction of a sexual act or exhibition of the 

genitals or pubic area. The BIA rejected this argument in part 

by stating:

New Jersey’s definition appears to be more 

specific than the federal definition, 

differentiating exhibition of the genitalia and 

nudity, and requiring more than simple nudity 

but rather nudity depicted for the purpose of 

sexual stimulation or gratification. . . . [T]he 

Third Circuit . . . held in United States v. Knox, 

32 F.3d 733 (3d Cir. 1994), that the inclusion of 

“lascivious exhibition of the genitals or pubic 

area of any person” in the federal definition is 

broader than a similar Pennsylvania definition 

which requires actual nudity. “Notably, nudity 

alone is not enough for ‘lasciviousness,’ since, as 

the Third Circuit noted, the phrase ‘exhibition of 

the genitals or pubic area’ in § 2256(2) is 

qualified by the term ‘lascivious.’”

App. 7 (citation omitted) (quoting Doe v. Chamberlin, 139 F. 

Supp. 2d 637, 641 (M.D. Pa. 2001)). 

The BIA’s reasoning is flawed. Most importantly, the 

analysis fails to account for the express emphasis on “genitals 

or pubic area” contained in the federal definition. The state 

statute, meanwhile, applies to any nudity—and not necessarily 

that which shows genitals or the pubic area—depicted for the 

purpose of sexual stimulation or gratification. Furthermore, 

the statute of conviction’s purpose element does not undercut

Salmoran’s contention that there are depictions criminalized by 
14

the New Jersey statute that would not fall within the ambit of 

§ 2252. Despite the BIA’s statement, it need not be true that 

“images that depict nudity for the purpose of sexual stimulation 

or gratification under New Jersey law would necessarily depict 

lascivious exhibition of the genitals under the definition [at] 18 

U.S.C. § 2256(2)(A)(v).” Id. (emphasis added). 

The Government argues unpersuasively that the 

analysis this Court employs to determine whether there is 

“lascivious exhibition of the genitals or pubic area of any 

person,” see United States v. Villard, 885 F.2d 117, 122 (3d 

Cir. 1989), means that depictions that contain other “hallmarks 

of lascivious conduct” may be criminalized even in the absence 

of a focus on the genitals or pubic area.11 Resp’t’s Br. 30

 11 In Villard, we adopted the so-called Dost factors 

(taken from United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 

1986)) “as a means of determining whether a genital exhibition 

is ‘lascivious.’” 885 F.2d at 122. These factors are:

1) whether the focal point of the visual depiction 

is on the child’s genitalia or pubic area;

2) whether the setting of the visual depiction is 

sexually suggestive, i.e., in a place or pose 

generally associated with sexual activity;

3) whether the child is depicted in an unnatural 

pose, or in inappropriate attire, considering the 

age of the child;

4) whether the child is fully or partially clothed, 

or nude;
15

(quoting United States v. Larkin, 629 F.3d 177, 182 (3d Cir. 

2010)). We did in United States v. Larkin conclude that two 

photographs that did not satisfy the first Dost factor of focusing 

on the minor’s genitalia were nonetheless lascivious. 629 F.3d 

177, 182-85 (3d Cir. 2010). There is a distinction, however, 

between depictions where the focus is not on the genitals or 

pubic area and those that do not at all feature those regions—

and in the photographs in Larkin, the minor is “completely 

nude.” Id. at 183, 185; see id. at 184 (“Nothing but B.L.’s 

entire nude body, with an emphasis on her breasts, is depicted 

in this photograph. Although the genitals are visible because 

the child is naked, factor one is not present because the focus 

is not on the genitalia.”). Indeed, we expressly held in Knox

that “the question whether the depiction at issue visually 

exhibits the genitals or pubic area is a threshold determination 

not necessarily guided by the Dost factors.” 32 F.3d at 751; 

see also United States v. McGrattan, 504 F.3d 608, 613–14 

(6th Cir. 2007) (considering a state statute that prohibited “all 

lewd exhibitions of nudity involving minors” and 

acknowledging that its application to “someone who possessed 

depictions of nudity which were lewd, but which did not 

involve the genitals” would be overbroad). We therefore agree 

 

5) whether the visual depiction suggests sexual 

coyness or a willingness to engage in sexual 

activity;

6) whether the visual depiction is intended or 

designed to elicit a sexual response in the viewer.

Id. “[N]o single factor should be given undue weight and . . . 

a depiction need not involve all the factors in order to be 

‘lascivious.’” Id.
16

with Salmoran that the BIA’s analysis as to overbreadth was 

erroneous.

2. Realistic Probability 

Although we have determined that the language of 

section 2C:24-4(b)(5)(b) plainly encompasses a broader range 

of conduct than the federal offense, the Government contends 

that Salmoran must still identify “a decision demonstrating that 

the State applies N.J. Stat. Ann. § 2C:24-4(b)(5)(b) to images 

beyond those contemplated by its federal counterpart.” 

Resp’t’s Suppl. Br. 3. Admittedly, this argument is not wholly 

baseless and finds some support in the language of DuenasAlvarez that “[t]o show . . . realistic probability, an offender . . 

. must at least point to his own case or other cases in which the 

state courts in fact did apply the statute in the special 

(nongeneric) manner for which he argues.” 549 U.S. 183, 193 

(2007); see also Moncrieffe, 569 U.S. at 205–06 (stating that if 

comparing “§ 1101(a)(43)(C), which refers to a federal 

firearms statute that contains an exception for ‘antique 

firearm[s],’” with a “state firearms law that lacks such an 

exception,” “a noncitizen would have to demonstrate that the 

State actually prosecutes the relevant offense in cases 

involving antique firearms” to “defeat the categorical 

comparison in this manner”). 

Indeed, we recognize that said language has caused 

some confusion in the courts of appeals. For example, the 

United States Court of Appeals for the Fifth Circuit, like the 

BIA, requires proof of actual prosecution even where the crime 

of conviction contains broader language. See, e.g., United 

States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir. 2017) 

(“There is no exception to the actual case requirement 

articulated in Duenas-Alvarez where a court concludes a state 
17

statute is broader on its face. Indeed, the Court in DuenasAlvarez emphasized that a defendant must ‘at least’ point to an 

actual state case . . . .” (quoting Duenas-Alvarez, 549 U.S. at 

193)); see also Matter of Ferreira, 26 I. & N. Dec. 415, 420–

21 (B.I.A. 2014) (“[T]he import of Moncrieffe and DuenasAlvarez is that even where a State statute on its face covers a 

type of object or substance not included in a Federal statute’s 

generic definition, there must be a realistic probability that the 

State would prosecute conduct falling outside the generic 

crime in order to defeat a charge of removability.”).

Our Court’s precedent, however, takes the alternative 

approach. In Singh v. Attorney General, we highlighted that 

the relevant elements of the statutes at issue in Moncrieffe and 

Duenas-Alvarez were identical.12 839 F.3d at 286 n.10. But 

 12 In Moncrieffe, the Court compared a Georgia crime 

of conviction for possession of marijuana with intent to 

distribute to a federal drug trafficking crime. 569 U.S. at 188–

89. The petitioner there argued that the state statute, which 

“punishe[d] all marijuana distribution without regard to the 

amount or remuneration,” was not categorically an aggravated 

felony because it proscribed conduct described by both 18 

U.S.C. § 841’s felony and misdemeanor provisions. Id. at 189–

90. 

In Duenas-Alvarez, the petitioner was convicted of 

violating a California statutory provision that criminalizes the 

conduct of any person who drives or takes another’s vehicle 

(without consent and with intent to deprive the owner of title 

or possession) “or any person who is a party or an accessory to 

or an accomplice in the driving or unauthorized taking or 

stealing.” 549 U.S. at 187 (emphasis omitted) (quoting Cal. 

Veh. Code Ann. § 10851(a) (West 2000)). He argued that 
18

where “the elements of the crime of conviction are not the same 

as the elements of the generic federal offense,” we explained, 

we believe “the ‘realistic probability’ language” (or, the 

“‘realistic probability’ inquiry”) of Moncrieffe is “simply not 

meant to apply.” Id.; see id. at 286 (holding that the BIA “erred 

in conducting a ‘realistic probability’ inquiry” in ascertaining 

whether a Pennsylvania drug conviction was an aggravated 

felony); see also Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 

2017) (“The state crime at issue clearly does apply more 

broadly than the federally defined offense. Nothing in 

Duenas–Alvarez, therefore, indicates that this state law crime 

may be treated as if it is narrower than it plainly is.”); Ramos 

v. Att’y Gen., 709 F.3d 1066, 1071–72 (11th Cir. 2013)

(explaining that Duenas-Alvarez does not control where the 

statute’s language itself “creates the ‘realistic probability’ that 

a state would apply the statute to conduct beyond the generic 

definition”); United States v. Grisel, 488 F.3d 844, 850 (9th 

Cir. 2007) (“Where, as here, a state statute explicitly defines a 

crime more broadly than the generic definition, no ‘legal 

imagination’ is required to hold that a realistic probability 

exists that the state will apply its statute to conduct that falls 

outside the generic definition of the crime.” (citation omitted) 

(quoting Duenas-Alvarez, 549 U.S. at 193)).

Singh v. Attorney General, therefore, forecloses the 

Government’s contention and prevents placing an undue 

 

California caselaw “makes a defendant criminally liable for 

conduct that the defendant did not intend, not even as a known 

or almost certain byproduct of the defendant’s intentional 

acts,” and application of the state statute therefore “creates a 

subspecies of the Vehicle Code section crime that falls outside 

the generic definition of ‘theft.’” Id. at 191, 194. 
19

burden on petitioners of identifying cases of actual prosecution 

where the statute expressly authorizes the state government to 

enforce broader conduct.

13 In these situations, it is a matter of 

semantics as to whether we state that the realistic probability 

inquiry is not meant to apply, see Singh v. Att’y Gen., 839 F.3d 

at 286 n.10, or the realistic probability requirement is 

necessarily satisfied because “legal imagination” is not needed, 

 13 Despite the Government’s argument to the contrary, 

Singh’s application of the modified categorical approach and 

the controlled substance schedule context do not provide bases 

to distinguish when proof of actual prosecution is required for 

the realistic probability inquiry. See Singh v. Att’y Gen., 839 

F.3d at 279 n.2 (“The modified categorical approach is not 

distinct from the categorical approach, but rather a ‘tool for 

implementing the categorical approach.’” (quoting Descamps, 

570 U.S. at 262)). 

Moreover, our opinion in Lewin v. Attorney General, 

885 F.3d 165 (3d Cir. 2018), is consistent with the reasoning 

in Singh. In Lewin, we rejected the petitioner’s argument that 

his New Jersey conviction for receipt of stolen property was 

broader than the generic federal offense of receiving stolen 

property. Id. at 170. The petitioner challenged “the sufficiency 

of the mens rea element of [the state] offense,” id. at 167, but 

the statute of conviction “refer[red] to a specific defendant’s 

knowledge or belief,” which aligned with the intent element of 

the generic federal offense, see id. at 169-70. The elements of 

the statute of conviction and the generic offense were thus the 

same; our note that “[a]t most, [the petitioner] raise[d] a 

theoretical” claim that does not satisfy the Moncrieffe realistic 

probability requirement was appropriate in that context. Id. at 

170.
20

see Grisel, 488 F.3d at 850. Here, because section 2C:24-

4(b)(5)(b) plainly encompasses more conduct than its federal 

counterpart, Salmoran does not need to identify cases in which 

New Jersey actually prosecuted overbroad conduct. The 

statute of conviction does not constitute an aggravated felony. 

B. Crime of Child Abuse

Having concluded that section 2C:24-4(b)(5)(b) does 

not qualify as an aggravated felony as defined in 8 U.S.C. § 

1101(a)(43)(I), we next consider whether Salmoran is 

nevertheless removable because the conviction constituted a 

crime of child abuse. 

The INA does not define “crime of child abuse,” nor is 

the phrase’s meaning as used in the statute “plain and 

unambiguous”; as a result, under Chevron, we must defer to 

the BIA’s interpretation of the phrase if it is “based on a 

permissible construction of the statute.” MondragonGonzalez, 884 F.3d at 158 (quoting Florez v. Holder, 779 F.3d 

207, 211 (2d Cir. 2015)). We recently addressed that precise 

issue in Mondragon-Gonzalez, in which we held that the BIA’s 

broad interpretation of a crime of child abuse is reasonable and 

is owed deference.14 Id. at 158–59. The agency defines “crime 

of child abuse” as:

any offense involving an intentional, knowing, 

reckless, or criminally negligent act or omission 

 14 While we defer to the Board’s interpretation of 

“crime of child abuse,” we owe no deference to—and review 

de novo—its categorical approach determination. See Singh v. 

Att’y Gen., 677 F.3d at 508.
21

that constitutes maltreatment of a child or that 

impairs a child’s physical or mental well-being, 

including sexual abuse or exploitation. At a 

minimum, this definition encompasses 

convictions for offenses involving the infliction 

on a child of physical harm, even if slight; mental 

or emotional harm, including acts injurious to 

morals; sexual abuse, including direct acts of 

sexual contact, but also including acts that 

induce (or omissions that permit) a child to 

engage in prostitution, pornography, or other 

sexually explicit conduct; as well as any act that 

involves the use or exploitation of a child as an 

object of sexual gratification . . . .

Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (B.I.A.

2008); see also Matter of Soram, 25 I. & N. Dec. 378, 381 

(B.I.A. 2010) (holding that “proof of actual harm or injury to 

the child” is not required). 

The conviction at issue here categorically matches the 

part of the BIA’s definition of child abuse that includes “any 

act that involves the use or exploitation of a child as an object 

of sexual gratification.” Matter of Velazquez-Herrera, 24 I. & 

N. Dec. at 512. Although Salmoran argues that possession of 

child pornography does not entail exploitation of the child, this 

position is untenable. As the Supreme Court has noted, “[t]he 

harms caused by child pornography . . . are . . . extensive 

because child pornography is ‘a permanent record’ of the 

depicted child’s abuse, and ‘the harm to the child is 

exacerbated by [its] circulation.’” Paroline v. United States, 

572 U.S. 434, 440 (2014) (quoting New York v. Ferber, 458 

U.S. 747, 759 (1982)); cf. Osborne v. Ohio, 495 U.S. 103, 111 

(1990) (noting that the existence of the pornography “haunt[s] 
22

the children in years to come”). Possession of child 

pornography thus perpetuates the abuse of that child and 

amounts to “use or exploitation” because of the content, 

purpose, and effect of possessing the images. Salmoran’s state 

offense therefore falls squarely within the BIA’s definition of 

the generic offense.

IV. Conclusion

While Salmoran is removable for having committed a 

crime of child abuse,15 he may nevertheless file an application 

for cancellation of removal because his state child pornography 

conviction does not constitute an aggravated felony. We will 

accordingly grant the petition for review in part, deny it in part, 

and remand for further proceedings to allow Salmoran the 

opportunity to apply for cancellation of removal. 

 15 We consequently decline Salmoran’s request to 

order DHS to facilitate his return to the United States.