Serrato-Navarrete v. Holder
601 F. App'x 734
10th Cir.2015Background
- Petitioner Oscar Serrato-Navarrete, a Mexican national and lawful permanent resident, pled guilty in Colorado to possession of child pornography under Colo. Rev. Stat. § 18-6-403(3)(b.5) in 2013.
- DHS charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground his conviction was an aggravated felony for child pornography under 8 U.S.C. § 1101(a)(43)(I), which references offenses described in 18 U.S.C. § 2252.
- Petitioner argued the Colorado statute is broader than the federal statute § 2252(a)(4)(B) because it criminalizes material depicting a child "engaged in, participating in, observing, or being used for" explicit sexual conduct, while the federal text uses "engaging in."
- The IJ and a single-member BIA opinion concluded the Colorado statute categorically matches § 2252(a)(4)(B) and thus qualifies as an aggravated felony; the BIA rejected Petitioner’s claim Colorado’s wording is broader.
- Petitioner also moved to reopen removal proceedings based on a state post-conviction motion to withdraw his guilty plea; the BIA denied the motion to reopen.
- Petitioner filed two consolidated petitions for review challenging (1) the aggravated-felony determination and (2) denial of the motion to reopen; the Tenth Circuit denied both petitions.
Issues
| Issue | Petitioner’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether Colorado § 18-6-403(3)(b.5) categorically fits § 2252(a)(4)(B) (aggravated felony) | Colorado’s statute is broader because it criminalizes depiction of a minor "participating in, observing, or being used for" explicit sexual conduct, which may not be the same as "engaging in" | Colorado wording is functionally equivalent; the broader adjectives fall within the meaning of "engaging in" as used in § 2252(a)(4)(B) | The court held the Colorado statute is a categorical match to § 2252(a)(4)(B); conviction is an aggravated felony |
| Whether BIA should have done a modified categorical analysis | Serrato argued a modified categorical analysis was required if the statute is divisible and broader | Government maintained the statute categorically matches and modified analysis not needed | Court accepted the BIA’s categorical conclusion and did not reach modified-categorical analysis |
| Whether there is a realistic probability Colorado would prosecute non-generic conduct under § 18-6-403 | Serrato contended there is a realistic possibility courts would apply the statute to non-"engaging in" conduct (e.g., mere observing) | Government argued no realistic probability; dictionaries and context show "engaging in" covers the adjectives | Court found no realistic probability and agreed "engaging in" encompasses "participating in, observing, or being used for" |
| Whether denial of motion to reopen was an abuse of discretion | Serrato sought reopening based on post-conviction motion to withdraw plea | Government argued BIA acted within discretion; petitioner did not advance arguments on appeal | Court held petitioner waived appellate challenge to denial; affirmed denial |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (Sup. Ct.) (categorical approach and "realistic probability" standard)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (Sup. Ct.) (requiring state-court application showing realistic probability of nongeneric coverage)
- United States v. Trent, 767 F.3d 1046 (10th Cir.) (explaining modified categorical approach for divisible statutes)
- Waugh v. Holder, 642 F.3d 1279 (10th Cir.) (scope of appellate review for aggravated-felon removal orders)
- Maatougui v. Holder, 738 F.3d 1230 (10th Cir.) (standard of review for BIA denial of motion to reopen)
- Iliev v. Holder, 613 F.3d 1019 (10th Cir.) (argument waiver doctrine on appeal)
- Brue v. Gonzales, 464 F.3d 1227 (10th Cir.) (de novo review of legal issues in immigration appeals)