Receipt of Child Pornography Under 18 U.S.C. § 2252A(a)(2)(A) Is Categorically a CIMT Because Conviction Requires Images of Actual Children

Introduction

In Jean Buteau Remarque v. Attorney General United States of America (3d Cir. July 20, 2026) (not precedential), the Third Circuit denied consolidated petitions for review challenging two Board of Immigration Appeals (BIA) decisions: (1) dismissal of Remarque’s appeal from an Immigration Judge’s (IJ) removal order, and (2) denial of reconsideration.

The petitioner, Jean Buteau Remarque, a Haitian citizen admitted as a conditional lawful permanent resident in 2017, was convicted in federal court of receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A) and possession under 18 U.S.C. § 2252A(a)(5)(B), and sentenced to 90 months’ imprisonment. DHS charged removability, including under 8 U.S.C. § 1227(a)(2)(A)(i) (crime involving moral turpitude committed within five years of admission) and 8 U.S.C. § 1227(a)(2)(E)(i) (“crime of child abuse, child neglect, or child abandonment”).

The key issues were: (i) whether proceedings properly vested in (and could proceed in) the Philadelphia Immigration Court after a corrected Notice to Appear (NTA); (ii) whether PACER-sourced criminal judgments were properly authenticated; (iii) whether receipt of child pornography under § 2252A(a)(2)(A) categorically constitutes a CIMT; (iv) whether due process was violated by venue change or by failure to adjudicate a pending I-751; and (v) whether the BIA abused its discretion in denying reconsideration.

Summary of the Opinion

  • Jurisdiction/venue and service: The court upheld the agency’s rejection of Remarque’s claim that service of the corrected NTA was fraudulent, applying a presumption that officials properly perform duties and finding no clear contrary evidence.
  • Due process prejudice: Even assuming procedural irregularity in venue change, Remarque failed to show prejudice (including any meaningful difference between Third and Fourth Circuit law that would alter the outcome).
  • Authentication of conviction records: The court upheld admission of PACER-obtained judgments supported by a supervisory deportation officer’s declaration and indicia of reliability (case numbers, filing dates, judicial signatures).
  • Removability (CIMT): The court held that receipt of child pornography under § 2252A(a)(2)(A) is categorically a CIMT because, after the Supreme Court’s invalidation of “virtual child pornography” provisions, conviction requires images of actual children.
  • Alternative ground not reached: Because CIMT removability sufficed, the court did not decide whether the conviction also qualifies as a “crime of child abuse.”
  • Reconsideration: The court found no abuse of discretion; the BIA adequately addressed the arguments and was not required to respond to every contention at length.

Analysis

Precedents Cited

The opinion’s reasoning rests on several established doctrinal pillars—presumptions regarding official acts and service, due process prejudice, evidentiary reliability in immigration proceedings, the categorical approach to removability, and deference in reconsideration review. The following cited authorities were central:

1) Presumption of regularity; service disputes; equitable estoppel

  • United States v. Armstrong, 517 U.S. 456, 464 (1996): The court invoked the presumption that, absent “clear evidence to the contrary,” government officials properly discharge their duties. This presumption undercut Remarque’s unsupported assertion that the certificate of service was falsified.
  • Cheruku v. Att'y Gen., 662 F.3d 198, 208 (3d Cir. 2011): The court used Cheruku to reject equitable estoppel, emphasizing the need to show misrepresentation, reasonable detrimental reliance, and “affirmative misconduct”—a demanding standard unmet by bare allegations.

2) Due process in removal proceedings; prejudice requirement

  • Serrano-Alberto v. Att'y Gen., 859 F.3d 208, 212-13 (3d Cir. 2017): Cited for de novo review of due process claims and for the principle that a due process violation requires a showing of prejudice. The court applied this to venue-change complaints.
  • Urena- Tavarez v. Ashcroft, 367 F.3d 154, 160-61 (3d Cir. 2004): Supported the proposition that I-751 hardship waivers under 8 U.S.C. § 1186a(c)(4) are committed to discretion by statute.
  • United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004): Used to dispose of Remarque’s due process claim about the I-751, holding that there is no due process liberty interest in discretionary relief (“a matter of grace rather than of right”).

3) Authentication and admissibility of conviction records

  • In re Velasquez, 25 I. & N. Dec. 680, 684 (BIA 2012): Key administrative precedent: the listed methods of authenticating criminal records in § 240(c)(3)(C) and 8 C.F.R. § 1003.41 are “not mandatory or exclusive”; IJs may admit other reliable, authenticated evidence.
  • Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1196- 97 (9th Cir. 2006): Cited for the “guiding principle” that authentication requires proof the document is what it purports to be—supporting the PACER-plus-declaration approach.

4) Categorical approach and CIMT doctrine

  • Moreno v. Att'y Gen., 887 F.3d 160, 163 (3d Cir. 2018): Provided the standard of de novo review for removability and, critically, the Third Circuit’s prior observation that “crimes involving possession of child pornography are morally turpitudinous.”
  • Sasay v. Att'y Gen., 13 F.4th 291, 296 (3d Cir. 2021): Cited for applying the categorical approach—comparing statutory elements to the generic CIMT concept, not the case’s underlying facts.
  • Partyka v. Att'y Gen., 417 F.3d 408, 411 (3d Cir. 2005): Supplied the “least culpable conduct” formulation central to the overbreadth argument.
  • Jean-Louis v. Att'y Gen., 582 F.3d 462, 465 (3d Cir. 2009) (quoting Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004)): Defined CIMTs as requiring conduct “inherently base, vile, or depraved.”
  • Ashcroft v. Free Speech Coal., 535 U.S. 234, 256-57 (2002): Functioned as the opinion’s linchpin for narrowing the “least culpable conduct” under § 2252A(a)(2)(A). Because “virtual child pornography” provisions were held unconstitutional as overbroad, the statute’s enforceable reach in prosecutions requires actual children.
  • United States v. Williams, 553 U.S. 285, 313-14 (2008) (Souter, J., dissenting): Cited to reinforce that Free Speech Coal. protects nonobscene virtual images and that the child-safety rationale differentiates real from virtual depictions.
  • United States v. Salcido, 506 F.3d 729, 733 (9th Cir. 2007) (per curiam): Cited for the proposition that, post-Free Speech Coal., the government must prove the images were of “actual children, not computer-generated images.”
  • United States v. Santacruz, 563 F.3d 894, 896-97 (9th Cir. 2009) (per curiam): Used as supporting authority that knowing possession of child pornography is a CIMT, bolstering the conclusion that receipt of actual-child pornography is likewise turpitudinous.
  • Lopez v. Att'y Gen., 914 F.3d 1292, 1301 (11th Cir. 2019): Cited for judicial restraint: if removability is sustained on one ground, the court may deny the petition without reaching other grounds (here, “crime of child abuse”).

5) Motions for reconsideration; adequacy of BIA explanation

  • Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005): Provided the abuse-of-discretion standard (“arbitrary, irrational, or contrary to law”).
  • Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002): Cited to reject the claim that the BIA must exhaustively address every argument; it must show it reviewed the record and grasped the claims.

Legal Reasoning

A) Corrected NTA, service, and the “presumption of regularity”

Remarque’s jurisdiction/venue theory depended on proving improper or fraudulent service of the corrected NTA designating Philadelphia. The IJ credited an officer affidavit that Remarque was personally served and refused service; the BIA agreed. The Third Circuit then layered United States v. Armstrong over the factual finding: without “clear evidence to the contrary,” the court would not infer falsification or bad faith from mere accusation.

This reasoning also foreclosed equitable estoppel. Under Cheruku v. Att'y Gen., estoppel requires affirmative misconduct and detrimental reliance, which cannot be established by speculative claims about service documents.

B) Venue-change complaints fail without a prejudice showing

Even if there were procedural missteps in moving the matter from Baltimore to Philadelphia, the court treated the issue as one of due process requiring prejudice under Serrano-Alberto v. Att'y Gen.. Remarque alleged prejudice because Third Circuit law governed, but he did not identify any Fourth Circuit rule that would change the removability or evidentiary analysis. The court thus treated the claim as an abstract procedural objection insufficient for relief.

C) PACER judgments and flexible authentication in immigration proceedings

On the conviction record, the court aligned with the BIA’s evidentiary approach in In re Velasquez: the statutory and regulatory authentication methods are not exclusive, and reliability is the guiding criterion. By citing Sinotes-Cruz v. Gonzales, the court emphasized practical authentication— proof that the documents are what they purport to be.

Here, the combination of (i) PACER provenance attested under penalty of perjury by a supervisory deportation officer and (ii) internal indicia (case numbers, filing dates, judicial signatures) sufficed. The court treated Remarque’s objection as formalistic and not grounded in evidence of inaccuracy.

D) The core holding: § 2252A(a)(2)(A) receipt is categorically a CIMT because “least culpable conduct” still involves actual children

Remarque’s principal removability challenge was a categorical overbreadth argument: because “child pornography” in 18 U.S.C. § 2256(8)(B) includes “computer-generated” images, he claimed § 2252A(a)(2)(A) could be violated by receiving virtual images, which he argued would not be turpitudinous.

The Third Circuit’s response reframed the “least culpable conduct” inquiry under Partyka v. Att'y Gen. and Sasay v. Att'y Gen.: the least culpable conduct must be conduct that can actually sustain a conviction under enforceable law. After Ashcroft v. Free Speech Coal. struck down the virtual-image provision as unconstitutional, prosecutions cannot rest on protected “virtual” depictions alone. Consistent with United States v. Salcido, the government must prove beyond a reasonable doubt that the images depict actual children.

With that narrowing premise, the court concluded that the minimum conduct for a § 2252A(a)(2)(A) conviction is receipt of depictions of actual minors engaged in sexually explicit conduct, which the court (building on Moreno v. Att'y Gen. and the CIMT definitions in Jean-Louis v. Att'y Gen. and Knapik v. Ashcroft) treated as inherently vile and depraved. The court further supported this conclusion by citing United States v. Santacruz (possession as a CIMT), treating receipt as at least as turpitudinous as possession.

Having sustained removability on the CIMT ground, the court followed the approach reflected in Lopez v. Att'y Gen. and declined to reach whether the conviction also qualifies as a “crime of child abuse.”

E) Reconsideration: explanation sufficiency and deferential review

Applying Borges v. Gonzales, the court held the BIA’s denial of reconsideration was not arbitrary, irrational, or contrary to law. The court also relied on Sevoian v. Ashcroft to emphasize that the BIA need not write an “exegesis” on every point; it is enough to show it reviewed the record and understood the claims. The court found the BIA had indeed addressed the central themes (service presumption, authentication reliability, and the non-criminalization of virtual pornography post-Free Speech Coal.).

Impact

  • Categorical analysis “minimum conduct” anchored to constitutional reality: The most significant doctrinal move is treating unconstitutional statutory breadth (virtual-image language in § 2256(8)(B)) as irrelevant to the minimum conduct that can sustain conviction under § 2252A(a)(2)(A). In practice, this blunts overbreadth arguments that rely on text invalidated by Ashcroft v. Free Speech Coal..
  • Strengthening CIMT removability for federal child-pornography offenses: By reaffirming Moreno v. Att'y Gen. and extending its moral-turpitude logic to receipt of child pornography, the decision signals that federal child-pornography convictions will generally satisfy the CIMT prong in the Third Circuit, even where the statutory definition contains now-unenforceable language.
  • Practical evidentiary proof of convictions: The approval of PACER-sourced judgments with a sworn DHS declaration, combined with In re Velasquez, supports flexible authentication methods in immigration court and may reduce litigation over formal certification where reliability is strong.
  • Procedural/venue challenges face a prejudice barrier: The court’s emphasis on prejudice under Serrano-Alberto v. Att'y Gen. signals that venue-transfer disputes must be tied to a concrete outcome difference, not merely the application of different circuit precedent in the abstract.
  • Limits: The opinion is expressly “NOT PRECEDENTIAL,” so it does not bind future Third Circuit panels. Still, it may be persuasive to IJs and the BIA, particularly on the interaction between the categorical approach and Free Speech Coal..

Complex Concepts Simplified

Jurisdiction vs. venue (in immigration court)
“Jurisdiction” concerns the court’s authority to hear a case; “venue” concerns which location should hear it. Remarque argued the wrong immigration court handled his case due to conflicting NTAs. The court treated the corrected NTA and service evidence as adequate and rejected the claim absent strong proof of wrongdoing.
Presumption that officials did their job correctly
Under United States v. Armstrong, courts assume government officers properly performed official duties unless there is clear evidence otherwise. Bare accusations of falsified service typically will not overcome this presumption.
Due process “prejudice” requirement
Even if a procedural error occurred, the person must show it likely affected the outcome. Here, claiming that different circuit law applied was not enough without showing it would change removability or evidentiary rulings.
Authentication of records
Authentication means showing a document is genuine. Immigration courts may accept reliable records even if they are not authenticated by the exact methods listed in certain regulations, so long as there is sufficient proof (e.g., PACER origin, sworn declaration, signatures, case identifiers).
Categorical approach and “least culpable conduct”
The categorical approach asks what the statute of conviction necessarily covers at minimum—not what the person actually did. The “least culpable conduct” is the minimum behavior that can still produce a valid conviction. The court reasoned that behavior must be legally convictable after considering constitutional limits.
Crime involving moral turpitude (CIMT)
A CIMT generally involves conduct viewed as inherently base, vile, or depraved (per Jean-Louis v. Att'y Gen. and Knapik v. Ashcroft). The court treated receipt of actual-child pornography as meeting that standard.

Conclusion

The Third Circuit’s decision affirms removal where a conditional permanent resident was convicted of federal receipt and possession of child pornography, rejecting procedural challenges (service, venue) and evidentiary objections (PACER authentication), and upholding a categorical CIMT determination. The opinion’s most instructive contribution is its categorical-approach analysis: because Ashcroft v. Free Speech Coal. rendered “virtual child pornography” provisions unconstitutional, the minimum conduct sustaining a § 2252A(a)(2)(A) conviction necessarily involves actual minors—making the offense categorically turpitudinous under the court’s CIMT framework and consistent with Moreno v. Att'y Gen..

Although nonprecedential, the decision provides a clear roadmap for how the Third Circuit is likely to evaluate (1) overbreadth arguments tied to unconstitutional statutory language, (2) practical authentication of federal conviction records in removal proceedings, and (3) the prejudice threshold for procedural due process claims in the immigration context.