Nguyen Chi Cuong Nmn Huynh v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 23-1318
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Nguyen Chi Cuong Nmn Huynh
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 12, 2023
Filed: May 28, 2024
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Before GRUENDER, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Nguyen Chi Cuong Nmn Huynh petitions for review of a Board of
Immigration Appeals (BIA) order affirming that he is removable because he was
convicted of a state crime constituting “sexual abuse of a minor” under 8 U.S.C.
§ 1101(a)(43)(A). Because Huynh’s statute of conviction is plainly broader than this
generic federal offense, we grant his petition for review.

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I.
Huynh is a citizen of Vietnam. He was admitted to the United States as a
lawful permanent resident in 2017, and less than five years later, he was convicted
in Iowa of “knowingly purchas[ing] or possess[ing] a visual depiction of a minor
engaging in a prohibited sexual act or the simulation of a prohibited sexual act.”
Iowa Code § 728.12(3).
The Immigration and Nationality Act (INA) provides for the removal of
“[a]ny alien who is convicted of an aggravated felony at any time after admission.”
8 U.S.C. § 1227(a)(2)(A)(iii). It defines “aggravated felony” to include a host of
offenses, including those “described in” 18 U.S.C. § 2252 “relating to child
pornography.” 8 U.S.C. § 1101(a)(43)(I). But the Department of Homeland
Security did not charge him as removable under subparagraph (I). Instead, it sought
his removal under subparagraph (A) for committing a crime constituting “murder,
rape, or sexual abuse of a minor.” Id. § 1101(a)(43)(A). An immigration judge
found Huynh removable, and the BIA dismissed his appeal.
II.
We have jurisdiction to review de novo whether a state crime qualifies as
sexual abuse of a minor. Aguilar-Sanchez v. Garland, 87 F.4th 878, 880 (8th Cir.
2023). Under the “categorical approach,” we 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.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (cleaned up) (citation
omitted). Huynh is removable if the “least of the acts criminalized” by the Iowa
statute “are encompassed by the generic federal offense” of sexual abuse of a minor.
Id. at 191 (cleaned up) (citation omitted). But he is not removable if the Iowa statute
is unambiguously broader. Gonzalez v. Wilkinson, 990 F.3d 654, 661 (8th Cir.
2021).

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Huynh and the Government agree that Iowa Code § 728.12(3) has only two
elements: (1) the defendant knowingly purchased or possessed a visual depiction
that (2) showed a person under the age of 18 engaging in a prohibited sexual act or
the simulation of a prohibited sexual act. State v. Manning, No. 13-1111, 2014 WL
5243347, at *6 (Iowa Ct. App. Oct. 15, 2014); see also Iowa Crim. Jury Instructions
§ 910.3 (2022). So the least of the acts criminalized by § 728.12(3) is, as relevant
here, knowingly possessing a prohibited image. We hold that this conduct falls
outside the generic federal offense of sexual abuse of a minor.
“We begin, as always, with the text,” using “normal tools of statutory
interpretation.” Esquivel–Quintana v. Sessions, 581 U.S. 385, 391 (2017). Congress
did not define sexual abuse of a minor when it added the term to the INA in 1996,
but “reliable dictionaries” from that time “provide evidence” of its meaning. Id. at
391–92. In 1996, “the ordinary meaning of ‘sexual abuse’ included ‘the engaging
in sexual contact with a person who is below a specified age or who is incapable of
giving consent because of age or mental or physical incapacity.’” Id. at 391 (quoting
Merriam–Webster’s Dictionary of Law 454 (1996)); see also Sexual Abuse, Random
House Webster’s Unabridged Dictionary 1755 (2d ed. 1997) (“rape, sexual assault,
or sexual molestation”); Sexual Abuse, Black’s Law Dictionary 10 (7th ed. 1999)
(“[a]n illegal sex act, esp[ecially] one performed against a minor by an adult”).
Similarly, a closely related statute that Congress revised the same year defines sexual
abuse of a minor as “knowingly engag[ing] in a sexual act with another person” of
a prohibited age. 8 U.S.C. § 2243(a); see Esquivel–Quintana, 581 U.S. at 394–95
(“rely[ing] on § 2243(a) for evidence of the meaning of sexual abuse of a minor” but
declining to adopt it as the “complete or exclusive definition”). None of these
definitions captures simple possession of child pornography.
The BIA, for its part, “invoke[s]” 18 U.S.C. § 3509(a) “as a guide” in case-
by-case adjudications. In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA
1999); Garcia–Urbano v. Sessions, 890 F.3d 726, 728 (8th Cir. 2018). “Sexual
abuse” in § 3509(a)(8) “includes the employment, use, persuasion, inducement,
enticement, or coercion of a child to engage in, or assist another person to engage

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in, sexually explicit conduct or the rape, molestation, prostitution, or other form of
sexual exploitation of children, or incest with children.” But even the BIA’s
preferred definition requires something more than simple possession of child
pornography.
We have already held that possession of child pornography under 18 U.S.C.
§ 2252A(a)(5)(B) “does not require ‘the employment, use, persuasion, inducement,
enticement, or coercion of a child to engage in, or assist another person to engage
in, sexually explicit conduct or the rape, molestation, prostitution, or other form of
sexual exploitation of children, or incest with children.’” United States v. Coutentos,
651 F.3d 809, 817 (8th Cir. 2011) (quoting 18 U.S.C. § 3509(a)(8)). As in
Coutentos, so too here: § 2252A(a)(5)(B)’s prohibition of “knowingly possess[ing],
or knowingly access[ing] with intent to view, any . . . material that contains an image
of child pornography” is analogous to Iowa Code § 728.12(3)’s prohibition of
“knowingly purchas[ing] or possess[ing] a visual depiction of a minor engaging in a
prohibited sexual act or the simulation of a prohibited sexual act.” Under our
precedent, while § 3509(a)(8) requires “the employment, use, persuasion,
inducement, enticement, or coercion of a child to engage in” the sexually explicit
conduct, Iowa Code § 728.12(3) does not.
The Government zeroes in on § 3509(a)(8)’s catch-all reference to “other
form of sexual exploitation of children,” which includes “child pornography or child
prostitution.” See § 3509(a)(6) (defining “exploitation”). But “other form of sexual
exploitation” immediately follows rape, molestation, and prostitution, which all
require at least an act directed toward a minor. See Cir. City Stores, Inc. v. Adams,
532 U.S. 105, 114–15 (2001) (“[W]here general words follow specific words in a
statutory enumeration, the general words are construed to embrace only objects
similar in nature to those objects enumerated by the preceding specific words.”
(citation omitted)). While § 3509(a)(8) might cover production of child
pornography, it doesn’t cover mere possession. Cf. Coutentos, 651 F.3d at 817 (“No
more than the offense of possessing methamphetamine involves the act of producing

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it, does the offense of possessing child pornography involve the sexual abuse of a
child.”).
If that’s not enough, the placement of “sexual abuse of a minor” within
§ 1101(a)(43) confirms that the Iowa statute just doesn’t fit. Paragraph (43) “lists
sexual abuse of a minor in the same subparagraph as ‘murder’ and ‘rape,’ . . . among
the most heinous crimes it defines as aggravated felonies[,] . . . suggest[ing] that
sexual abuse of a minor encompasses only especially egregious felonies.” Esquivel–
Quintana, 581 U.S. at 394. Unlike sexual crimes performed upon or directed at a
minor, simple possession of child pornography doesn’t belong in the same
subparagraph as murder and rape. To be sure, victims of child pornography “suffer[]
continuing and grievous harm as a result of [their] knowledge that a large,
indeterminate number of individuals have viewed and will in the future view images
of the sexual abuse [they] endured.” Paroline v. United States, 572 U.S. 434, 457
(2014). But Congress recognized this by dedicating a later subparagraph to such
offenses. See 8 U.S.C. § 1101(a)(43)(I).
All told, Iowa Code § 728.12(3) is a mismatch for sexual abuse of a minor, so
the BIA erred in holding that it’s an aggravated felony under § 1101(a)(43)(A).
III.
DHS also charged Huynh as removable for committing a “crime involving
moral turpitude” within five years of his admission to the United States. 8 U.S.C.
§ 1227(a)(2)(A)(i). Huynh argued that the Iowa statute doesn’t call for the necessary
“vicious motive, corrupt mind, or evil intent,” see Chanmouny v. Ashcroft, 376 F.3d
810, 814–15 (8th Cir. 2004) (citation omitted), because it requires the defendant to
have known only that he possessed an image—not that the image depicted a minor.
The BIA rejected Huynh’s argument because he did not provide examples of courts
applying the Iowa statute to defendants who didn’t know the person in the image
was underage.

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The Government does not defend the BIA’s decision. Nor could it. We do
not require petitioners to “prove through specific convictions that unambiguous laws
really mean what they say.” Gonzalez, 990 F.3d at 660. Instead, it requests that we
remand for the BIA to “reconsider its decision.” See generally Limnia, Inc. v. U.S.
Dep’t of Energy, 857 F.3d 379, 386–87 (D.C. Cir. 2017) (Kavanaugh, J.) (discussing
voluntary remand for reconsideration).
We find that the Government’s request is neither frivolous nor made in bad
faith, so we grant its request for voluntary remand.
IV.
We grant Huynh’s petition for review, vacate, and remand for further
proceedings.
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