          United States Court of Appeals
                      For the First Circuit


No. 13-2432

                       PETER HEINZ KAUFMANN,

                            Petitioner,

                                v.

   ERIC H. HOLDER, JR., Attorney General of the United States,

                            Respondent.


                  PETITION FOR REVIEW OF AN ORDER
                OF THE BOARD OF IMMIGRATION APPEALS


                              Before

                        Lynch, Chief Judge,
              Torruella and Thompson, Circuit Judges.



     Justin Conlon on brief for petitioner.
     Karen L. Melnik, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Assistant Attorney General, Civil
Division, and Douglas E. Ginsburg, Assistant Director, on brief for
respondent.



                           July 14, 2014
               LYNCH, Chief Judge.         Petitioner Peter Heinz Kaufmann, a

native    of    Germany,    was     convicted       under        Connecticut      law    for

possession       of     child     pornography.                 This     had   immigration

consequences.         The Board of Immigration Appeals ("BIA") found him

removable under 8 U.S.C. §§ 1101(a)(43)(I) and 1227(a)(2)(A)(iii).

He petitions for review, arguing that his admission in the state

proceeding       to    having     images     of     children          "having    sex"     is

insufficient to bring him within the federal statute's definition

of an aggravated felony of child pornography because the relevant

state law of conviction encompasses other conduct. His argument is

meritless, and we deny the petition for review.

                                            I.

               Petitioner, born in Germany in 1948, lawfully entered the

United States in 1959.              In 1999, petitioner downloaded child

pornography onto his computer, paying for the images with a credit

card.     In 2002, Connecticut police officers armed with a search

warrant    entered      petitioner's        house        and    found    at    least    five

pornographic       images       involving        known     minors       on    petitioner's

computer.

               Petitioner pleaded guilty to state charges of possession

of child pornography under Connecticut law on November 22, 2004.

During the plea colloquy, the prosecutor explained to the judge

that petitioner had admitted that the images were of "children

having sex and it came from Russia."                           Petitioner was given a


                                           -2-
suspended sentence of five years along with ten years of probation.

Petitioner does not deny making the admission.

            On April 8, 2013, the Department of Homeland Security

("DHS"), based on the Connecticut conviction, charged petitioner

with   removability   under     8   U.S.C.   §   1227(a)(2)(A)(iii),       which

provides that "[a]ny alien who is convicted of an aggravated felony

at any time after admission is deportable."               See also 8 U.S.C.

§ 1101(a)(43)(A), (I).

            In an oral decision on June 4, 2013, an Immigration Judge

("IJ") found that petitioner was removable as an aggravated felon

and ordered his deportation to Germany. Petitioner appealed to the

BIA, which dismissed the appeal and affirmed the order of removal

on October 17, 2013.       This petition for review followed.

                                      II.

            Ordinarily, courts lack jurisdiction to review the BIA's

finding that an alien is removable on the basis of having committed

a criminal offense.        See 8 U.S.C. § 1252(a)(2)(C).         However, we

retain jurisdiction to review constitutional claims or questions of

law raised in such a case.       See id. § 1252(a)(2)(D). This petition

for    review   presents    a   single   question    of   law,   so   we   have

jurisdiction to address only that question.

            We review the BIA's legal conclusion de novo, granting

some deference to its reasonable interpretation of the statutes and

regulations within its purview. See Liu v. Holder, 714 F.3d 56, 59


                                      -3-
(1st Cir.     2013).     Because the       BIA   "conducted      an    independent

evaluation of the record and rested its decision on a self-

generated rationale," our review is focused on the BIA's decision

rather than the IJ's.       Gonzalez v. Holder, 673 F.3d 35, 38 (1st

Cir. 2012) (quoting Zheng v. Holder, 570 F.3d 438, 440 (1st Cir.

2009)) (internal quotation mark omitted).

            The BIA concluded that petitioner was removable for

having been convicted of an aggravated felony of child pornography

as described in 18 U.S.C. §§ 2251, 2251A, or 2252.1                   See 8 U.S.C.

§ 1101(a)(43)(I).       Those provisions, in relevant part, outlaw the

possession of "any visual depiction . . . of a minor engaging in

sexually explicit conduct."        18 U.S.C. § 2252.        "Sexually explicit

conduct" is defined as "graphic sexual intercourse," "bestiality,"

"masturbation," "sadistic or masochistic abuse," or "exhibition of

the genitals or pubic area of any person."             Id. § 2256(2).        The BIA

concluded that petitioner's conviction necessarily fell within that

definition.

            The   Connecticut      statute     under    which    petitioner     was

convicted     criminalized        the    knowing       possession       of    child

pornography.2      It   defined    child      pornography   as    "any material


     1
        The BIA did not reach the IJ's separate conclusion that
petitioner's same conviction would also qualify as an aggravated
felony under 8 U.S.C. § 1101(a)(43)(A) as "sexual abuse of a
minor."
     2
        The statute was amended after petitioner's indictment but
before his conviction. He was tried and convicted under the old

                                        -4-
involving . . . photographic or other visual reproduction of a live

performance which depicts a minor in a prohibited sexual act."

Conn. Gen. Stat. § 53a-193(13) (2003). "Prohibited sexual act," in

turn, was defined as "erotic fondling, nude performance, sexual

excitement,     sado-masochistic        abuse,     masturbation     or    sexual

intercourse."      Id.   §   53a-193(3).         Petitioner focuses       on    the

definition of "erotic fondling," as "touching a person's clothed or

unclothed genitals, pubic area, buttocks, or if such person is a

female, breast."     Id. § 53a-193(5).           His argument is that this

fondling of clothed areas makes the Connecticut statute broader

than the federal statute.       Specifically, the Connecticut statute

criminalizes possession of depictions involving touching of a

minor's clothed buttocks or female breasts, while the federal

statute does not.    From this he says the government did not meet

its burden of showing the state conviction fell under the federal

statute.

           Ordinarily, we use a "categorical approach" to determine

whether a state conviction fits within the federal definition for

purposes of the Immigration and Nationality Act.              See Campbell v.

Holder, 698 F.3d 29, 34 (1st Cir. 2012).            Under that approach, we

examine whether the elements of the state crime of conviction




version of the statute,         which    was     operative   at   the    time   he
committed the crime.

                                    -5-
necessarily indicate that the elements of the federal crime were

present. See Taylor v. United States, 495 U.S. 575, 600-01 (1990).

            However,    when    a    statute     is    divisible   into       multiple

offenses or theories of liability, some of which satisfy the

definition under the federal statute and some of which do not, we

apply a "modified categorical approach."                      Descamps v. United

States, 133 S. Ct. 2276, 2283-84 (2013).                      Under the modified

categorical approach, we may look to the record of conviction to

determine whether the petitioner was convicted under one of the

provisions that does satisfy the federal definition.                See Patel v.

Holder, 707 F.3d 77, 80-81 (1st Cir. 2013).                      When using this

approach, we will find that a state conviction fits the federal

definition only if the record shows as much through "necessary"

inferences; merely "reasonable" inferences are insufficient.                         Id.

at 82-83 (quoting Renteria-Morales v. Mukasey, 551 F.3d 1076, 1085

(9th Cir. 2008)) (internal quotation marks omitted).                     Petitioner

argues that the government's inference is no more than reasonable.

            We may appropriately review the transcript of the plea

colloquy.    See Shepard v. United States, 544 U.S. 13, 16 (2005).

That is the source of petitioner's admission that the images

portrayed children "having sex."

            Petitioner    argues          that   the   term    "having        sex"   is

ambiguous, and that the BIA could not necessarily conclude that his

conviction    fits     within       the    definition     found    in     8     U.S.C.


                                          -6-
§ 1101(a)(43)(I).   Petitioner supports his argument with multiple

social science studies concluding that people ascribe a range of

meanings to the term "sex" or "have sex."

           Petitioner's argument misses the point.      The fact that a

term may carry multiple meanings does not render it meaningless.3

His real and equally fallacious argument is that the admission that

the children photographed were "having sex" could reasonably mean

he was convicted under the clothed sexual fondling part of the

statute.   But no reasonable person would ascribe that meaning to

the term "have sex."     Further, none of the social science sources

petitioner relies on support that definition.

           Since the plea colloquy established that the pictures

showed children "having sex," the BIA correctly concluded that it

necessarily established as well that the conviction did not fall

outside    the   scope    of   the      federal   statute,   8   U.S.C.

§ 1101(a)(43)(I).      Petitioner is removable.      The petition for

review is denied.




     3
         The term "vehicle" in the context of theft laws, for
instance, may be subject to reasonable disagreement with respect to
some things (for example, would a non-motorized scooter qualify?),
but it is entirely clear as to others (for example, a car is a
vehicle, and a suitcase is not).     The fact that it is unclear
whether a scooter is a vehicle does not change the fact that a
suitcase is not one. Cf. Massachusetts v. U.S. Dep't of Transp.,
93 F.3d 890, 893-94, 896-97 (D.C. Cir. 1996) (explaining that
statutory ambiguities "may be unclear in only one direction," and
concluding that even though statute was arguably ambiguous, it
nonetheless could not have the meaning the agency ascribed to it).

                                  -7-
