Larry Mero v. William Barr ( 2020 )

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 other grounds by Descamps v.
United States, 570 U.S. 254 (2013).
4 MERO V. BARR
We use the categorical approach to determine whether
Mero’s offense of conviction constitutes “sexual abuse of a
minor” within the meaning of 8 U.S.C. § 1101(a)(43)(A).
See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1567–
68 (2017). Under the categorical approach, we compare the
elements of N.R.S. § 200.730 with the elements of the
federal generic offense of “sexual abuse of a minor.” Mero’s
conviction qualifies as “sexual abuse of a minor,” and thus
renders him removable, “only if the [state] statute’s elements
are the same as, or narrower than, those of the generic
offense.” Descamps, 570 U.S. at 257.
The elements of N.R.S. § 200.730 can readily be gleaned
from the text of the statute itself. The statute punishes
anyone who “knowingly and willfully has in his or her
possession for any purpose any film, photograph or other
visual presentation depicting a person under the age of
16 years as the subject of a sexual portrayal or engaging in
or simulating, or assisting others to engage in or simulate,
sexual conduct.” N.R.S. § 200.730. Although not relevant
for our purposes, the terms “sexual conduct” and “sexual
portrayal” are defined elsewhere. See N.R.S. § 200.700(3),
(4).
We have developed two different definitions of “sexual
abuse of a minor,” one applicable to statutory rape offenses,
the other applicable to all other offenses. Quintero-Cisneros
v. Sessions, 891 F.3d 1197, 1200 (9th Cir. 2018). We are
concerned here with the latter definition, which requires
proof of three elements: “(1) sexual conduct, (2) with a
minor, (3) that constitutes abuse.” Id. (citing United States
v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009)).
A comparison of the two sets of elements reveals that
N.R.S. § 200.730 punishes a broader range of conduct than
the federal generic offense. In particular, the Nevada statute
MERO V. BARR 5
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. That requirement
is grounded in the ordinary meaning of “sexual abuse.” As
the Supreme Court noted in Esquivel-Quintana, the term is
defined in relevant part as “the engaging in sexual contact
with a person who is below a specified age.” 137 S. Ct. at
1569 (emphasis added) (quoting Merriam-Webster’s
Dictionary of Law 454 (1996)).
Participation in some form of sexual conduct with a
minor is a requirement of every state offense we have held
to qualify as “sexual abuse of a minor.” See, e.g., Quintero-
Cisneros, 891 F.3d at 1199, 1202 (assault of a child in the
third degree with sexual motivation); Diego v. Sessions,
857 F.3d 1005, 1012–13, 1015 (9th Cir. 2017) (subjecting a
child who is less than 14 years old to sexual contact);
Medina-Villa, 567 F.3d at 511–13 (committing lewd and
lascivious acts with a child under the age of 14). It is true,
as the government notes, that the state statute need not
require actual physical contact between the offender and a
minor. In United States v. Baron-Medina, 187 F.3d 1144
(9th Cir. 1999), we held that a state offense qualified as a
categorical match for “sexual abuse of a minor” where the
conduct prohibited by the statute included coercing a child
to touch himself in a sexual manner. Id. at 1147. Critically,
though, the statute at issue in Baron-Medina still required
participation in sexual conduct in which the child was the
direct object of the offender’s actions.
The same pattern holds when we examine federal
criminal statutes addressing sexual abuse of minors, which,
while not controlling, can provide useful guidance when
identifying the elements of the federal generic offense.
Section 3509 of Title 18, for example, defines the term
6 MERO V. BARR
“sexual abuse” to include “the employment, use, persuasion,
inducement, enticement, or coercion of a child to engage in,
or assist another person to engage in, sexually explicit
conduct or the rape, molestation, prostitution, or other form
of sexual exploitation of children, or incest with children.”
18 U.S.C. § 3509(a)(8); see also In re Rodriguez-Rodriguez,
22 I. & N. Dec. 991, 995–96 (B.I.A. 1999). All of the
conduct covered by this definition involves the offender’s
participation in some form of sexual conduct in which a
minor is the person upon whom the offender’s actions are
performed, or the person toward whom the offender’s
actions are directed. The same is true of statutes defining
various criminal offenses involving sexual abuse of children.
See, e.g., 18 U.S.C. §§ 2241(c), 2243(a) (prohibiting
“knowingly engag[ing] in a sexual act with another person”
below a specified age or within a specified age range
(emphasis added)). We have relied on § 2243(a) in
particular when defining the federal generic offense
applicable to statutory rape offenses, which requires that the
offender engage in “a sexual act . . . with a minor between
the ages of 12 and 16.” Estrada-Espinoza, 546 F.3d at 1152
(emphasis added).
The offense prohibited by N.R.S. § 200.730 does not
qualify as “sexual abuse of a minor.” The Nevada statute
punishes possession of a visual depiction of a minor engaged
in sexual conduct, but knowing and willful possession of the
image alone renders an offender guilty. The offender
himself need not have participated in any form of sexual
conduct with the minor who is depicted in the image. To be
sure, even the act of possessing an image that permanently
records a child’s sexual abuse contributes to the ongoing
“injury to the child’s reputation and emotional well-being.”
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002);
see also Paroline v. United States, 572 U.S. 434, 457 (2014).
MERO V. BARR 7
But an offender guilty of possessing child pornography is not
performing any act upon the child or directing any act toward
the child. With a possession-only offense such as N.R.S.
§ 200.730, the minor depicted in the image is not the direct
object of the offender’s conduct, which is a necessary
predicate for the offense to qualify as “sexual abuse of a
minor.” 1
The BIA held in the alternative that N.R.S. § 200.730
qualifies as an “aggravated felony” under a separate
definition of that term, which encompasses “an offense
described in section 2251, 2251A, or 2252 of Title 18
(relating to child pornography).” 8 U.S.C. § 1101(a)(43)(I).
The government acknowledges that the Nevada statute may
prohibit a broader range of conduct than its federal
counterparts due to the state statute’s definition of “sexual
portrayal,” and asks that we remand the matter to the BIA
for further analysis. Because the government’s voluntary
request for remand is neither frivolous nor made in bad faith,
we grant the request. See California Communities Against
Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (per
curiam).
PETITION FOR REVIEW GRANTED in part;
REMANDED.
1
Offenses punishing an offender’s participation in the production
of child pornography, of course, stand on entirely different footing. See
Oouch v. DHS, 633 F.3d 119, 123–24 (2d Cir. 2011).