Mero v. Barr, No. 17-70929 (9th Cir. 2020)
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The Ninth Circuit granted in part a petition for review of the BIA's finding that petitioner was removable based on his conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age, in violation of Nevada Revised Statutes (N.R.S.) 200.730.
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. The panel held 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. Therefore, petitioner's conviction did not qualify as sexual abuse of a minor. The panel explained that, 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.
Court Description: 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. MERO V. BARR 3
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