Receipt of Child Pornography Under 18 U.S.C. § 2252A(a)(2)(A) Categorically Constitutes a CIMT Because Post–Free Speech Coalition Prosecutions Require Images of Actual Minors

Case: Jean Buteau Remarque v. Attorney General United States of America (3d Cir. July 20, 2026) (not precedential)
Agency: Board of Immigration Appeals; Immigration Judge William H. McDermott
Posture: Petitions for review of (1) BIA dismissal of appeal from removal order and (2) BIA denial of motion for reconsideration (consolidated).

1. Introduction

Jean Buteau Remarque, a Haitian citizen admitted as a conditional lawful permanent resident in 2017, was convicted in federal court in 2021 of receipt of child pornography (18 U.S.C. § 2252A(a)(2)(A)) and possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)), receiving a 90-month sentence. DHS charged him as removable, including under 8 U.S.C. § 1227(a)(2)(A)(i) (crime involving moral turpitude committed within five years of admission with a potential sentence of one year or more) and 8 U.S.C. § 1227(a)(2)(E)(i) (crime of child abuse, child neglect, or child abandonment).

The litigation also featured procedural disputes: DHS issued a corrected Notice to Appear (NTA) changing the location of the initial hearing from Baltimore to Philadelphia; Remarque argued this undermined jurisdiction/venue and due process. He also challenged the admission of criminal judgments obtained from PACER as “unauthenticated,” and asserted the IJ acted arbitrarily by not adjudicating a pending I-751 waiver request.

2. Summary of the Opinion

The Third Circuit denied both petitions for review. It held:

• The service/venue objections failed: Remarque did not rebut the presumption that officials properly served the corrected NTA, and he did not show prejudice from the venue change.
• The PACER-sourced federal judgments were adequately authenticated and properly admitted.
• Remarque’s conviction for receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A) categorically qualifies as a CIMT; therefore, removability under 8 U.S.C. § 1227(a)(2)(A)(i) was sustained.
• The court did not need to reach whether the conviction also qualifies as “child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i).
• The BIA did not abuse its discretion in denying reconsideration because it considered and addressed the material arguments.

3. Analysis

3.1 Precedents Cited

Procedural regularity, service, and prejudice

• United States v. Armstrong, 517 U.S. 456 (1996): The court invoked the presumption of regularity—“in the absence of clear evidence to the contrary,” officials are presumed to have properly discharged duties. This presumption defeated Remarque’s unsupported claim that DHS falsified the certificate of service for the corrected NTA.
• Serrano-Alberto v. Att'y Gen., 859 F.3d 208 (3d Cir. 2017): Used for the due process requirement of showing prejudice. Even if a regulatory venue transfer error existed, Remarque offered no concrete explanation why Fourth Circuit law would change the outcome.
• Cheruku v. Att'y Gen., 662 F.3d 198 (3d Cir. 2011): Cited to reject equitable estoppel absent “affirmative misconduct” and detrimental reliance. With no proof of misrepresentation or misconduct, estoppel could not lie.

Authentication and admissibility of conviction records

• In re Velasquez, 25 I. & N. Dec. 680 (BIA 2012): Central to the evidentiary holding. The panel accepted the BIA’s view that the authentication routes in § 240(c)(3)(C) and 8 C.F.R. § 1003.41 “are not mandatory or exclusive,” and IJs may admit other reliable, authenticated records.
• Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006): Reinforced the “guiding principle” that authentication requires proof the document is what it purports to be. PACER filing metadata, signatures, and an officer declaration sufficed here.

Discretionary relief and due process

• Urena- Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir. 2004): Supported the conclusion that the I-751 waiver path under 8 U.S.C. § 1186a(c)(4) is committed to discretion.
• United States v. Torres, 383 F.3d 92 (3d Cir. 2004): Supplied the principle that there is no due process liberty interest in purely discretionary relief.

CIMT categorical framework

• Moreno v. Att'y Gen., 887 F.3d 160 (3d Cir. 2018): Provided both the standard of review (de novo) and a substantive anchor: it is “readily apparent” that child-pornography possession crimes are morally turpitudinous.
• Sasay v. Att'y Gen., 13 F.4th 291 (3d Cir. 2021): Cited for the categorical approach requirement—compare statutory elements to the generic CIMT concept, not case-specific facts.
• Partyka v. Att'y Gen., 417 F.3d 408 (3d Cir. 2005): Supplied the “least culpable conduct” formulation.
• Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. 2009) and Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004): Used to define CIMTs as conduct “inherently base, vile, or depraved.”

Virtual images and the “least culpable conduct” rebuttal

• Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002): The pivotal constitutional constraint—virtual depictions (“appears to be” minors) in § 2256(8)(B) are overbroad and unconstitutional. The panel used this to narrow what conduct can actually sustain a § 2252A(a)(2)(A) conviction.
• United States v. Williams, 553 U.S. 285 (2008) (Souter, J., dissenting): Cited to emphasize the continuing protection for nonobscene virtual images and to underscore the child-safety rationale behind unprotected child pornography.
• United States v. Salcido, 506 F.3d 729 (9th Cir. 2007) (per curiam): Used for the proposition that, after Free Speech Coalition, the government must prove images depict actual children, not computer-generated images. This supports the court’s “least culpable conduct” conclusion.
• United States v. Santacruz, 563 F.3d 894 (9th Cir. 2009) (per curiam): Cited as an example of a federal child-pornography possession offense being treated as a CIMT, bolstering the panel’s conclusion that receipt likewise qualifies.

Issue avoidance once one removability ground is sustained

• Lopez v. Att'y Gen., 914 F.3d 1292 (11th Cir. 2019): Cited for the principle that a court may deny a petition based on one valid removability ground without addressing additional charged grounds (here, “child abuse”).

Reconsideration standard

• Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005): Provided the “arbitrary, irrational, or contrary to law” abuse-of-discretion benchmark.
• Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002): Confirmed the BIA need not address every contention in exhaustive detail so long as it shows it reviewed the record and grasped the claims.

3.2 Legal Reasoning

(A) Jurisdiction/venue and service challenges

The court treated Remarque’s “conflicting NTAs” theory as an evidentiary problem: he alleged fraud in service but supplied only assertion. Applying United States v. Armstrong, the panel presumed proper service and good-faith performance of official duties, and credited the deportation officer’s affidavit that Remarque was personally served but refused to accept.

Even reframed as a regulatory venue-transfer error, the claim still required prejudice under Serrano-Alberto v. Att'y Gen.. Remarque’s generalized claim—Philadelphia forced him under Third Circuit rather than Fourth Circuit law—failed because he did not identify any Fourth Circuit rule that would alter removability or evidentiary outcomes.

(B) Admission of PACER-derived conviction documents

The panel endorsed a functional reliability approach to authentication: the judgments had multiple “indicia of authenticity” (case numbers, filing dates, judicial signatures), plus a DHS supervisory officer declaration under penalty of perjury that they came from PACER. Under In re Velasquez, statutory and regulatory authentication pathways are nonexclusive; thus, “other ways” that establish reliability suffice.

(C) CIMT categorical analysis for § 2252A(a)(2)(A)

The key substantive holding turns on how the categorical approach interacts with constitutional narrowing. Remarque argued overbreadth: the definition of “child pornography” includes “computer-generated” images and depictions that “appear to be” minors (18 U.S.C. § 2256(8)(B)), so—he said—the least culpable conduct could involve purely virtual images, which he claimed would not be turpitudinous.

The panel’s answer: Ashcroft v. Free Speech Coal. invalidated the “appears to be”/virtual-image reach as unconstitutional; therefore, in real-world prosecutions, the government must prove the images depict actual minors (United States v. Salcido). That means the “least culpable conduct” that can sustain a § 2252A(a)(2)(A) conviction necessarily involves actual child sexual exploitation imagery. Given Third Circuit recognition that child-pornography possession is morally turpitudinous (Moreno v. Att'y Gen.) and the CIMT definition as “base, vile, or depraved” (Jean-Louis v. Att'y Gen.; Knapik v. Ashcroft), the receipt offense qualifies categorically.

Having sustained removability under 8 U.S.C. § 1227(a)(2)(A)(i), the court declined to decide whether the conviction also fits the “child abuse” ground, invoking the logic reflected in Lopez v. Att'y Gen..

(D) Denial of reconsideration

Applying Borges v. Gonzales and Sevoian v. Ashcroft, the panel found the BIA did more than “repeat conclusions”: it re-explained why service presumptions were unrebutted, why the conviction record was properly authenticated, and why the CIMT analysis was not undermined by virtual-image arguments. That level of engagement was enough to defeat an abuse-of-discretion claim.

3.3 Impact

• Child-pornography CIMT litigation in the Third Circuit: Although nonprecedential, the opinion supplies a roadmap for rejecting “virtual image” overbreadth attacks on § 2252A(a)(2)(A) CIMT classification by anchoring “least culpable conduct” to post–Free Speech Coalition prosecutorial requirements. Future litigants will likely confront the court’s move: unconstitutional statutory breadth may not define the “minimum conduct” if it cannot support a conviction.
• Authentication practice: The decision reinforces that PACER-sourced judgments, supported by a sworn declaration and internal reliability cues, can satisfy authentication in immigration court under the flexible standard endorsed in In re Velasquez. This lowers the practical payoff of purely formal authentication objections when the documents are facially official.
• Venue/service challenges: The opinion underscores the evidentiary burden on respondents to produce “clear evidence” to overcome service presumptions, and the doctrinal requirement to articulate concrete prejudice from venue or regulatory irregularities.
• Strategic consequences: By sustaining removability on one charge and bypassing the “child abuse” question, the opinion reflects a common appellate dynamic: respondents may need to defeat every independent removability ground or show why one is outcome-determinative for relief eligibility.

4. Complex Concepts Simplified

• Categorical approach: A method that looks only at the statutory elements of the conviction, not what the person actually did. The question is whether the minimum conduct that can lead to conviction still matches the immigration-law category (here, CIMT).
• “Least culpable conduct”: The lowest-level behavior that could still violate the statute. If that minimum behavior is a CIMT, then all convictions under the statute count as CIMTs for immigration purposes.
• CIMT (crime involving moral turpitude): A judge-made immigration concept generally covering conduct that is “inherently base, vile, or depraved,” often involving fraud, intent to harm, or serious sexual exploitation.
• Presumption of regularity: Courts assume officials did their jobs correctly unless the challenger produces strong contrary proof. Here, it applied to service of the NTA and allegations of falsified certificates.
• Authentication of records: Proof a document is genuine. Immigration adjudicators may accept reliable proof beyond the enumerated regulatory methods, especially where official court documents have identifying markers and are supported by sworn declarations.
• Discretionary relief and due process: When a form of immigration relief is discretionary, denial (or non-consideration) typically does not create a constitutional due process violation because there is no protected entitlement to the relief.
• Motion for reconsideration: A request that the BIA re-examine its decision for legal or factual error; appellate review is highly deferential and looks for arbitrariness or legal irrationality.

5. Conclusion

The Third Circuit’s decision—while nonprecedential—crystallizes a practical rule for removal cases involving federal child-pornography receipt: because Ashcroft v. Free Speech Coal. invalidated the “virtual image” sweep, the minimum conduct that can support a conviction under 18 U.S.C. § 2252A(a)(2)(A) entails images of actual minors, making the offense categorically a CIMT under the court’s CIMT framework. The opinion also reinforces procedural guardrails in removal litigation: strong presumptions favor official service and regularity, prejudice is essential to procedural due process claims, PACER-based judgments can be sufficiently authenticated through reliable indicia and sworn declarations, and BIA reconsideration denials receive deferential review when the agency demonstrates meaningful engagement with the arguments.