The Third Circuit has determined that a New Jersey conviction for possession of child pornography is a crime of child abuse but not an aggravated felony relating to child pornography.

With respect to the aggravated felony charge, the court noted that “among the conduct that the state statute criminalizes, by means of its definition of ‘sexual contact,’ is the knowing possession of a visual depiction of an intentional touching, ‘either directly or through clothing,’ of the inner thigh, breasts, or buttocks by either the minor victim or adult actor for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.’ By contrast, in terms of conduct other than sexual acts and sadistic or masochist abuse, the federal offense prohibits the ‘lascivious exhibition’ of only the ‘genitals or pubic area of any person.’” In addition, there are depictions of nudity criminalized by the New Jersey statute that would not fall within the ambit of the federal statute.

With respect to the crime of child abuse charge of removability, the court noted that “[t]he conviction at issue here categorically matches the part of the BIA’s definition of child abuse that includes ‘any act that involves the use or exploitation of a child as an object of sexual gratification.’ Although Salmoran argues that possession of child pornography does not entail exploitation of the child, this position is untenable. “

The full text of Salmoran v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/172683p.pdf

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