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Department of Justice
Exccutiw Office for Immigration Re\iC\\

Board of/111migrntio11 .-1.ppeals

Office of the C '!erk
510- f_c,.1h11rg /'1ke .\1111, :111111
I ,1,'/1 ( )111rc Ii. I 1rg1111c1 _'0530

OHS LIT./York Co. Prison/YOR

TMH Law Offices, LLC

:321 Spruce Street, Suite 509
Scranton, PA 18503

3400 Concord Road

York, PA 17402

Name: CALDERON, JHOW WillY

A 056-122-271

Date of this notice: 1/30/2015

1 ncloscd is a cop; or the Board's decision and \lrdcr in the ab o\c-rckrcnccd case.
Sinccrch.

Donna Carr
Chief Clerk

l nclosurc
Panel Members:
!::)2u!e;1. RogP-r
C3uendelsberger, John
l\/lalphrus, Garry D

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jhow Willie Calderon, A056 122 271 (BIA Jan. 30, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Tracey M. Hubbard, Esq.

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia

File:

20530

A056 122 271 - York, PA

Date:

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ln re: JHOW WILLY CALDERON

PROCEEDINGS

AP PEAL
ON BEHALF O F RESPONDENT:
0:\ BEHALF OF DHS:

Tracey M. Hubbard, Esquire

Jeffrey F. Boy les

Assistant Chief Counsel

CHARGE:
Notice: Sec.

237(a)(2)(A)(iii), I&N Act [8 L .S.C. l 227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined under section 10l(a)(43)(I))
(sustained)

Sec.

237(a)(2)(A)(ii), I&N Act [8 U.S.C. 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude (not sustained)

AP PUCATION: Remand

The respondent, a native and citizen of the Dominican Republic and lawful permanent
nsident of the United States, appeals from the Immigration Judge's Ap ril 7, 2014, decision
_ordering his removal from the United States. The respondent's request for a waiver of the
appellate filing fee is granted; his request for oral argument is denied. See 8 C.F.R.
1003.l (e)(7), 1003.8(a)(3). The record will be remanded.
We review findings of fact, including credibility findings and (under the law of the Circuit
with jurisdiction over this case) detenninations as to the likelihood of future events, under the
''clearly erroneous" standard. See 8 C.F.R. 1003.l (d)(3)(i); see also Huang v. Atty Gen. o;'the
c.s., 620 F.3d 372, 382-83 (3d Cir. 2010); Kaplun v. Atr'y Gen. of the U.S., 602 F.3d 260,
272-73(3d Cir. 201O); Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Marrer of S-H-, 23 I&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues
de novo. See 8 C. F.R. 1003. l (d)(3)(ii).
The Immigration Judge concluded that the respondent was removable as an alien convicted
of an aggravated felony, as defined under section 101(a)(43)(1) of the Immigration and
Nationality Act, 8 U.S.C. 110l(a)(43)(I), because he had been convicted for violating
section 6312(d) of Title 18 of the Pennsylvania Consolidated Statutes ("PA. CONS. STA T.")
(1.J. at 3-4). In particular, the Immigration Judge determined that 18 PA. CONS. STAT. 6312(d)
contained the same essential elements as 18 U.S.C. 2252(a)(4)(B), a corresponding
federal statutory provision enumerated in section IOI(a)(43)(I) of the Act (I.I. at 2-3).
Cite as: Jhow Willie Calderon, A056 122 271 (BIA Jan. 30, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

I N RE M O VA L

A056 122 271

See generally section 10l (a)(43)(I) of the Act (including offenses "described in" 18 U.S.C.

2252 (relating to child pornography) as falling within the aggravated felony definition). The
Immigration Judge observed that the only notable difference between the state and federal
statutes was the jurisdictional element, which is contained in the federal statute (I.J. at 3).
However, the Immigration Judge concluded that, notwithstanding the jurisdictional element,
I 8 PA. CONS. STAT. 6312(d) qualifies as an aggravated felony because it is "an offense
described in" 18 U.S.C. 2252(a)(4)(B) (I.J. at 4). See section 10l(a)(43)(I) of the Act.

Upon de nova review, we conclude that a conviction under 18 PA. CONS. STAT. 6312(d)
does not qualify categorically as a conviction for an aggravated felony under
section 101(a)( 43)(I) of the Act, such that it would render the respondent removable under
section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii). In particular, we concur with
the respondent's appellate contention that the minimum conduct that has a realistic probability of
being prosecuted under 18 PA. CONS. STAT. 6312(d) is not punishable under the corresponding
federal statute at 18 U.S.C. 2252(a)(4)(B) (Respondent's Brief at 13-14). See .?vfatter of
Chairez, 26 I&N Dec. 349, 351 (BIA 2014) ("To determine whether the respondenfs offrnse
qualifies as an aggravated felony, we employ the categorical approach,' which requires us to
focus on the minimum conduct that has a realistic probability of being prosecuted under
[the state statute at issue] [.]") (citing Moncrie_ffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013)).
While 18 U.S.C. 2252(a)(4)(B) requires that a proscribed visual depiction involve 'the use
of a minor engaging in sexually explicit conduct," the respondent asserts that an individual may
be convicted under 18 PA. CONS. STAT. 6312(d) for the possession of images that do not
involve sexually explicit depictions of minors (Respondent's Brief at 14). To illustrate his point,
the respondent relies upon Commonwealth v. Savich, 716 A.2d 1251 (Pa. Super. Ct. 1 q98).
wherein the Superior Court of Pennsylvania upheld the appellant's con\ iction under
18 PA. CONS. STAT. 6312, based on a depiction of nude minors who were not engaged in sexual
activity (Respondent's Brief at 13-14). See Commonwealth v. Savich, supra, at 1255-56. In that
case, the appellant had secretly videotaped beach patrons, including children, as they were
undressing in a women's changing area (Respondent's Brief at 13-14). See id at 1254. The
Court concluded that the videotaping of nude children fell within the purview of the statute of
conviction because the videotape had been made for the appellant's own sexual gratification or
stimulation. See id at 1256-57 (stating that "the videotaping of nude children for the purpose of

Cite as: Jhow Willie Calderon, A056 122 271 (BIA Jan. 30, 2015)

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On appeal, the respondent argues that the Immigration Judge erred in sustaining the
aggravated felony charge of removability. Specifically, he asserts that a conviction under
l 8 PA. CONS. STAT. 6312(d) is not categorically a conviction for an aggravated felony under
section 1 0 1 ( a )(43)(I) of the Act be c au se it does not include the j uri sdictional element contained
in 18 U.S.C. 2252(a)(4)(B).
Ile also assens thm the cunJuct prohibit1.:J unJer
18 PA. CONS. STAT. 6312(d) is broader than that which is prohibited under 18 U.S.C.
2252(a)(4)(B).

A056 122 271

one's own sexual gratification or stimulation is a prohibited act under 18 PA. CONS. STAT.

6312(af) (emphasis in original).1

Although one of the relevant factors is "whether the visual depiction is intended or designed
to elicit a sexual response in the viewer," the Third Circuit has emphasized that the focus of the
inquiry is ''the photograph, rather than the viewer," and has cautioned against judging the
"actual effect of the [visual depiction] on the viewer." See United States v. Villard, supra, at 125
(emphasis in original). Moreover, the Third Circuit has concluded that an inquiry regarding the
intended effect on the viewer, by itself, is insufficient to establish "lasciviousness" for purposes
of 18 U.S.C. 2256(2)(A)(v). See id. at 122, 125 (observing that "more than one factor must be
present in order to establish 'lasciviousness[.]"'). In contrast, the Superior Court of Pennsylvania
in Commonwealth v. Savich, supra, concluded that a visual depiction of nudity was proscribed
under 18 PA. CONS. STAT. 6312 because of the appellant's personal intent to derive sexual
gratification or stimulation from viewing the depiction. See Commonwealth v. Savich, supra,
at 1256 (quoting Missouri v. Helgorh, 691 S.W.2d 281, 283 (Mo. 1985) ("It is the intent of the
photographer with which we are concerned[.]")).
Given that the Pennsylvania statute has been interpreted to apply to visual ci.epicti ons
involving nudity that may be proscribed based solely on the intent of the viewer, we conclude
that the respondent has established a realistic probability that it would reach minimum conduct
that is not punishable under 18 lJ.S.C. 2252(a)(4)(B). We base our conclusion on the
Third Circuit's construction of 18 U.S.C. 2252(a) and related statutory provisions, which
contemplate that a conviction will not be sustained based only on the effect that a visual
Subsection (a) of 18 PA. CONS. STAT. 6312, which included the definition of
"prohibited sexual act," was deleted in 2009, but the definitional language that was contained
therein appears verbatim in subsection (g) of 18 PA. CONS. STAT. 6312 (2013), which pertains
to the instant matter.

Cite as: Jhow Willie Calderon, A056 122 271 (BIA Jan. 30, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

In light of the case identified by the respondent, we conclude that there is a realistic
probability that Pennsylvania authorities would apply 18 PA. CONS. STAT. 6312(d) to prosecute
conduct that is not punishable under 18 U.S.C. 2252(a)(4)(B) (Respondent's Brief at 13).
See ]\;fatter of Chairez, supra, at 358 (stating that "the relevant question is how the prosecuting
authority 'would apply its statute'' in actual practice") (citing Moncrieffe v. Holder, supra,
at 1685, and Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). In that regard, 18 U.S.C.
$i 2252(a)(4)(B) requires that the proscribed visual depiction involve "the use of a minor
engaging in sexually explicit conduct." See 18 U.S.C. 2252(a)(4)(B)(i). "Sexually explicit
conduct"' is defined to include, in pertinent part \is-a-\is Commomrealrh '" Smich. supra.
lasci\ious exhibition of tbe genitals or pubic area of any pc-rsun...
See 18 L .S.C.
2256(2)(A)(v). The United States Court of Appeals for the Third Circuit has adopted a
six-factor test to determine whether a depiction is of "lascivious exhibition of the genitals or
pubic area of any person." See United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989)
(citing the factors set forth in United States v. Dost, 636 F.Supp. 828, 831 (S.D. Cal. 1 986)) :
see also U.S. v. Franz, 772 F.3d 134, 156-57 (3d Cir. 2014) (applying the Dost factors).

A056 122 271

depiction has on the viewer.

States v. Villard, supra, at 125,

Therefore, we agree with the respondent's
appellate assertion that 18 PA. CONS. STAT. 6312(d) is categorically overbroad relative to
section 101(a)(43)(1) of the Act, and we will vacate the Immigration Judge's determination that
the respondent was convicted of an offense that is categorically an aggravated felony, as defined
2
thereunder (I.J. at 4; Respondent's Brief at 13-14).
Compare

United

with Commonwealth v. Savich, supra, at 1256.

Accordingly. the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

{/
Board Member Garry D.

FOR THE BOARD

Malphrus respectfully dissents without separate opinion.

Given this ruling, we need not reach the respondent's alternative appellate argument that a
conviction under 18 PA. CONS. STAT. 63l2(d) is n o t categorically a comiction for an
aggravated felony under section I 01(a)(43 )(I) of the Act because it does not include the
jurisdictional element contained in 18 U.S. C. 2252(a)(4)(B). (Respondent's Brief at 1 1- 13).
See generally Matter of S-H-, supra, at 465 (observing that a case may be resolved on the basis
of a dispositive issue alone).
3 Insofar as the respondent argues that the Immigration Judge was "prejudiced" against him in
denying him the right to an attorney, we find no basis in the record to support this assertion
(Attachment to Notice of Appeal). Furthermore, despite the respondent's request, he has not
asserted a sufficient ground to warrant the reassignment of this matter to a different Immigration
Judge (Attachment to Notice of Appeal). To the extent appropriate, the respondent will have the
opportunity on remand to seek any form of relief from removal for which he may be eligible.

Cite as: Jhow Willie Calderon, A056 122 271 (BIA Jan. 30, 2015)

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In view of the foregoing, we conclude that a remand is necessary for the Immigration Judge
to further consider whether the respondent is removable as charged, given that the charge of
removability under section 23 7(a)(2)(A)(iii) of the Act is not sustainable based on the grounds
identified. Moreover, the Immigration Judge declined to decide whether removability under
section 237(a)(2)(A)(ii) of the AcL as charged in the Notice to Appear (form I-862). has been
established (I.J. at 2. -L Exh. 1 ) Therefore. the issue of the res ondent s remO\ ability remams a
matter for the Immigration Judge to resolve in the first instance.