                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 11, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
OSCAR SERRATO-NAVARRETE,
a/k/a Oscar Serrato-Navarette,

             Petitioner,

v.                                                   Nos. 14-9559 & 14-9578
                                                      (Petitions for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.


      Petitioner Oscar Serrato-Navarrete, a native and citizen of Mexico, seeks

review of the decision by the Board of Immigration Appeals (BIA) upholding the

order of removal by the immigration judge (IJ) based on Petitioner’s conviction for

an aggravated felony. In a consolidated petition, Petitioner also seeks review of the

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BIA’s order denying his motion to reopen. We have jurisdiction under 8 U.S.C.

§ 1252(a)(1), as limited by § 1252(a)(2)(C), (D), and we deny the consolidated

petitions.

                                    BACKGROUND

       Petitioner became a lawful permanent resident of the United States in 2001

through adjustment of status. In 2013, he pleaded guilty in Colorado to possession of

child pornography in violation of Colo. Rev. Stat. § 18-6-403(3)(b.5) (sexual

exploitation of a child, possession of material). The Department of Homeland

Security charged him with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii)

based on his conviction of an aggravated felony of child pornography. As relevant

here, an “aggravated felony” includes a conviction for child pornography “as

described in [18 U.S.C. §§] 2251, 2251A or 2252.” 8 U.S.C. § 1101(a)(43)(I).

       Petitioner argued before the IJ and the BIA that his conviction for possession

of child pornography was not an aggravated felony. The IJ rejected his argument,

relying on the BIA’s decision in Matter of R-A-M-, 25 I. & N. Dec. 657, 658-59

(BIA 2012), which held that a California conviction for possession of child

pornography is an aggravated felony because it is fundamentally the same as an

offense described in 18 U.S.C. § 2252(a)(4)(B). The BIA, in a decision by a single

Board member, dismissed Petitioner’s appeal. It concluded Petitioner’s conviction of

sexual exploitation of a child in violation of § 18-6-403(3)(b.5) categorically

qualified as an offense described in § 2252(a)(4)(B), knowingly possessing material


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visually depicting the use of a minor engaging in sexually explicit conduct. The BIA

rejected Petitioner’s argument that the Colorado statute is broader than the federal

statute. Petitioner filed a petition for review, No. 14-9559, and also moved to reopen

his removal proceedings on the ground that he had filed a post-conviction motion in

state court to withdraw his guilty plea. The BIA denied his motion to reopen.

Petitioner filed a second petition for review to challenge that decision, No. 14-9578,

and the two petitions have been consolidated.

                                     DISCUSSION

      In No. 14-9559, Petitioner argues the BIA erred in concluding

§ 18-6-403(3)(b.5) constitutes an aggravated felony under § 1101(a)(43)(I). He

contends Colorado’s statute is broader than, and thus not a categorical match to,

§ 2252(a)(4)(B). Thus he contends the BIA should have, but did not, conduct an

alternative modified categorical analysis of the two statutes. “[O]ur jurisdiction to

review an order of removal against an aggravated felon is significantly limited:

we may review the removal order only to the extent [P]etitioner raises constitutional

or legal challenges to the order[.]” Waugh v. Holder, 642 F.3d 1279, 1281 (10th Cir.

2011). We review these legal and constitutional issues de novo. See Brue v.

Gonzales, 464 F.3d 1227, 1232 (10th Cir. 2006). Because the BIA issued its own

decision, we review only its decision. Rivera-Barrientos v. Holder, 666 F.3d 641,

645 (10th Cir. 2012).




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      Courts generally use what is referred to as the “‘categorical approach’ to

determine whether [a] state offense is comparable to an offense listed [as an

aggravated felony under § 1101(a)(43)].” Moncrieffe v. Holder, 133 S. Ct. 1678,

1684 (2013). Under the categorical approach, courts “look not to the facts of the

particular prior case, but instead to whether the state statute defining the crime of

conviction categorically fits within the generic federal definition of a corresponding

aggravated felony” Id. (internal quotation marks omitted); see also Ibarra v. Holder,

736 F.3d 903, 907 (10th Cir. 2013) (“The categorical approach first requires

ignoring a petitioner’s actual conduct and examining only the minimum conduct

needed for a conviction under the relevant state law.”). Petitioner argues Colorado’s

possession-of-child-pornography statute criminalizes conduct broader than the

federal statute, and therefore is not a categorical match. Specifically, he argues that

Colorado’s § 18-6-403 criminalizes possession of material depicting a minor

“engaged in, participating in, observing, or being used for” sexually explicit conduct,

whereas § 2252(a)(4)(B) only refers to the depiction of a minor “engaging in”

sexually explicit conduct.

      The Colorado statute under which Petitioner was convicted criminalizes the

knowing possession or control of “any sexually exploitative material for any

purpose,” with exceptions not relevant here for peace officers, licensed physicians,

psychologists and the like. § 18-6-403(3)(b.5). “Sexually exploitative material,” in

turn, is defined as “any photograph, motion picture, video, video tape, print, negative,


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slide, or other mechanically, electronically, chemically, or digitally reproduced visual

material that depicts a child engaged in, participating in, observing, or being used for

explicit sexual conduct.” Colo. Rev. Stat. § 18-6-403(j) (emphasis added).

      The relevant federal statute criminalizes the knowing possession of

      1 or more books, magazines, periodicals, films, video tapes, or other
      matter which contain any visual depiction that has been mailed, or has
      been shipped or transported using any means of facility of interstate or
      foreign commerce or in or affecting interstate commerce, or which was
      produced using materials which have been mailed or so shipped or
      transported, by any means including by computer, if—(i) the producing
      of such visual depiction involves the use of a minor engaging in
      sexually explicit conduct; and (ii) such visual depiction is of such
      conduct.

§ 2252(a)(4)(B) (emphasis added).

      The BIA rejected Petitioner’s argument. It concluded the broader adjectives in

the Colorado statute—“participating in, observing, or being used for”—do not

describe functionally different conduct than “engaging in” and that all of the

additional adjectives in Colorado’s statute are covered by the term “engaging in”

found in § 2252(a)(4)(B). The BIA determined there was no realistic probability that

an individual would be prosecuted in Colorado under § 18-6-403(3)(b.5) for conduct

that would not be described in § 2252(a)(4)(B) and it was clear that Congress and

Colorado seek to criminalize the same conduct.

      In undertaking a categorical analysis, “we must presume that the conviction

rested upon nothing more than the least of the acts criminalized, and then determine

whether even those acts are encompassed by the generic federal offense.”


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Moncrieffe, 133 S. Ct. at 1684 (internal quotation marks omitted). But the Supreme

Court has warned this “is not an invitation to apply ‘legal imagination’ to the state

offense; there must be ‘a realistic probability, not a theoretical possibility, that the

State would apply its statute to conduct that falls outside the generic definition of a

crime.’” Id. at 1684-85 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007)). To conclude there is such a realistic probability, there must “at least” be

“cases in which the state courts in fact did apply the statute in the special

(nongeneric) manner for which [Petitioner] argues.” Duenas-Alvarez, 549 U.S. at

193.

       We cannot conclude there is a realistic probability that a person would be

prosecuted under Colorado’s § 18-6-403(3)(b.5) for conduct that would not be

“described in” § 2252(a)(4)(B). We have found no case that supports Petitioner’s

theory that a minor shown “participating in, observing, or being used for” explicit

sexual conduct, or even most narrowly simply “observing” explicit sexual conduct, is

not “engaged in” such conduct. Black’s Dictionary defines “engage” as “[t]o employ

or involve oneself; to take part in . . . .” Black’s Law Dictionary 646 (10th ed. 2014).

In turn, Merriam-Webster’s Dictionary defines “involve” to include “to cause

(someone) to be included in some activity, situation, etc.: to cause (someone) to take

part in something” or “to cause (someone) to be associated with someone or

something.” http://www.merriam-webster.com/dictionary/involve. Thus, a minor

observing explicit sexual conduct is being involved in and associated with such


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conduct within the meaning of “engaging in” in § 2252(a)(4)(B). We agree with the

BIA that the Colorado statute criminalizes the same conduct as § 2252(a)(4)(B), and

that the additional descriptive adjectives of “participating in, observing, or being

used for” explicit sexual conduct are all covered by the phrase “engaged in” sexually

explicit conduct.

      Thus, we agree with the BIA’s determination that conviction of child

pornography under § 18-6-403(3)(b.5) is categorically an offense described in

§ 2252(a)(4)(B), and, thus, is an aggravated felony under § 1101(a)(43)(I).

Accordingly, we need not reach Petitioner’s alternative argument that the BIA erred

in not proceeding to conduct a modified categorical analysis. See United States v.

Trent, 767 F.3d 1046, 1052 (10th Cir. 2014) (explaining that if the state statute at

issue is a “divisible” statute that “sets out one or more elements of the offense in the

alternative,” some of which match the relevant definition of an aggravated felony and

some of which do not, courts proceed to a modified categorical analysis under which

they “examine[] certain definitive underlying documents to determine which

alternative the [petitioner’s] conviction satisfied” (internal quotations marks

omitted)), cert. denied, 2015 WL 732162 (U.S. Feb. 23, 2015) (No. 14-7762).

      In No. 14-9578, Petitioner seeks review of the BIA’s August 5, 2014 order

denying his motion to reopen. We review the BIA’s denial of a motion to reopen for

an abuse of discretion. Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013).

But Petitioner’s brief advances no argument that could be deemed a challenge to the


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BIA’s exercise of discretion. He does not offer any argument at all regarding the

denial of his motion to reopen and thus has waived any appellate challenge to that

order. See Iliev v. Holder, 613 F.3d 1019, 1026 n.4 (10th Cir. 2010) (invoking

waiver doctrine to bar review of inadequately developed argument).

      The petitions are denied.

                                              Entered for the Court


                                              Bobby R. Baldock
                                              Circuit Judge




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