Larry Mero v. William Barr, 957 F.3d 1021

Larry Mero was charged as removable under the INA based on a Nevada conviction for "possession of visual presentation depicting sexual conduct of person under 16 years of age" (N.R.S. § 200.730).
An immigration judge and the BIA concluded the Nevada offense constituted "sexual abuse of a minor" (an aggravated felony), making Mero removable; Mero petitioned the Ninth Circuit for review.
The Ninth Circuit applied the categorical approach, comparing N.R.S. § 200.730’s elements to the federal generic definition of "sexual abuse of a minor" (for non-statutory-rape offenses: (1) sexual conduct, (2) with a minor, (3) that constitutes abuse).
N.R.S. § 200.730 criminalizes knowing and willful possession of images depicting persons under 16 engaged in sexual conduct; it does not require the possessor to have engaged in sexual conduct with the minor depicted.
The court concluded a possession-only offense is broader than the federal generic offense because the minor is not the direct object of the possessor’s conduct, and thus the Nevada statute does not qualify as "sexual abuse of a minor."
The government sought—and the Ninth Circuit granted—a voluntary remand to the BIA to consider an alternative aggravated-felony theory (offenses described in 18 U.S.C. §§ 2251, 2251A, 2252).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether conviction under N.R.S. § 200.730 qualifies as "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A)	Mero: statute does not require the offender to participate in sexual conduct with the minor, so it is broader than the federal generic offense	Gov/BIA: possession of images depicting minors in sexual conduct falls within the generic "sexual abuse of a minor" definition	Court: Held the Nevada possession-only offense is broader and does not qualify as "sexual abuse of a minor."
Whether N.R.S. § 200.730 is an aggravated felony under the child-pornography provisions (8 U.S.C. § 1101(a)(43)(I))	Mero: statute differs from federal child-porn statutes and thus is not necessarily an aggravated felony	Gov/BIA: BIA held alternatively that statute fits within offenses described in 18 U.S.C. §§ 2251/2252; government asked for remand	Court: Granted voluntary remand to the BIA for further analysis of the alternative aggravated-felony theory

Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc; de novo review and categorical-approach guidance)
Descamps v. United States, 570 U.S. 254 (U.S. 2013) (categorical-approach requirement that state elements be same as or narrower than generic offense)
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (U.S. 2017) (definition of "sexual abuse of a minor" under categorical approach)
Quintero-Cisneros v. Sessions, 891 F.3d 1197 (9th Cir. 2018) (elements for non-statutory-rape "sexual abuse of a minor")
United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009) (elements of sexual-abuse definition used by Ninth Circuit)
United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) (statute requiring child as direct object qualified under sexual-abuse analysis)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. 2002) (possession of child pornography harms child’s reputation and well-being)
Paroline v. United States, 572 U.S. 434 (U.S. 2014) (recognition of ongoing injury from child pornography possession)
Oouch v. DHS, 633 F.3d 119 (2d Cir. 2011) (distinguishing production-based offenses from possession-only offenses)
California Communities Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012) (permitting voluntary remand when not frivolous)