Colorado “Erotic Nudity” Overbreadth Defeats Categorical Aggravated-Felony Child-Pornography Match (8 U.S.C. § 1101(a)(43)(I))

1. Introduction

In Woode v. Bondi (10th Cir. Dec. 30, 2025), a pro se petitioner, Henry Kwame Woode, a citizen of Ghana, sought review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ’s) removal order and denial of relief. The case turned largely on whether Woode’s Colorado conviction for sexual exploitation of a child—possession with intent to deal in, sell, or distribute child pornography under Colo. Rev. Stat. § 18-6-403(3)(c) qualifies as an aggravated felony “relating to child pornography” under 8 U.S.C. § 1101(a)(43)(I).

That classification matters because an aggravated-felony determination can (and here did) lead the agency to pretermit (deny without reaching the merits) applications for cancellation of removal and asylum. Woode also sought withholding of removal and Convention Against Torture (CAT) protection, but those claims were rejected on procedural grounds (waiver/forfeiture) rather than revisited on the merits.

2. Summary of the Opinion

The Tenth Circuit granted the petition in part and denied it in part:

• Granted and remanded as to cancellation of removal and asylum because the court held Colo. Rev. Stat. § 18-6-403(3)(c) is not a categorical match to the relevant federal child-pornography analog (as discussed through 18 U.S.C. §§ 2252(a)(4)(B), 2256(2)(B)) and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(I).
• Denied as to withholding of removal and CAT protection because Woode failed to preserve challenges to dispositive agency findings and also failed to challenge the BIA’s waiver determinations before the court of appeals.

3. Analysis

A. Precedents Cited

1) Appellate review framework (BIA/IJ decisions; standards of review)

• Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010): The court relied on this for the proposition that when a single BIA member affirms in a brief order, the court reviews the BIA decision and any IJ portions the BIA relied upon, applying de novo review to legal issues and substantial evidence review to factfinding.
• Zarate-Alvarez v. Garland, 994 F.3d 1158 (10th Cir. 2021): Used to clarify that although discretionary denials of cancellation are typically unreviewable, the court retains jurisdiction to review the legal question whether the applicant is statutorily eligible (e.g., whether a conviction is an aggravated felony).

2) The categorical approach and “realistic probability”

• Bedolla-Zarate v. Sessions, 892 F.3d 1137 (10th Cir. 2018): Anchors the categorical approach as comparing the state statute to the generic federal offense, focusing on “the least of the acts criminalized.”
• De Leon v. Lynch, 808 F.3d 1224 (10th Cir. 2015): Supplies the “realistic probability” requirement—showing the state actually prosecutes (or would prosecute) conduct that falls outside the generic federal definition.

3) Asylum/withholding/CAT doctrinal framing

• Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015): Cited for core asylum/withholding concepts, including protected grounds and the higher burden for withholding.
• Ritonga v. Holder, 633 F.3d 971 (10th Cir. 2011): Cited for the definition of persecution and for the CAT point that no nexus to a protected ground is required.

4) Prior child-pornography categorical-match discussion (distinguished)

• Serrato-Navarrete v. Holder, 601 F. App'x 734 (10th Cir. 2015) (unpublished): The government urged reliance on this case as support for treating Colorado sexual-exploitation provisions as categorical matches to federal child-pornography crimes. The court declined to treat it as controlling (unpublished) and, critically, found it addressed a different Colorado subsection and different alleged overbreadth (“participating in, observing, or being used for” vs “engaging in”), not the “erotic nudity” breadth presented here.

5) Colorado prosecution demonstrating overbreadth

• People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999): Central to the “realistic probability” showing. The Tenth Circuit used Gagnon to demonstrate Colorado prosecutes “erotic nudity” involving images displaying a minor’s breasts posed for sexual gratification, which the court held is not proscribed by the relevant federal analog as framed in the opinion.

6) Waiver/forfeiture, exhaustion, and issue preservation

• Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007): The court used this to hold issues omitted from an opening brief are generally forfeited, supporting denial of review of withholding/CAT challenges.
• Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010), abrogated in part on other grounds by Santos- Zacaria v. Garland, 598 U.S. 411 (2023): Cited for the administrative-law principle that the agency should have the first opportunity to address arguments (issue exhaustion), with a note that later Supreme Court law altered some aspects not central to the disposition here.

B. Legal Reasoning

1) The new rule applied: Colorado § 18-6-403(3)(c) is not a categorical match to the federal child-pornography analog

The agency treated Woode’s conviction as an aggravated felony under 8 U.S.C. § 1101(a)(43)(I) (offenses described in 18 U.S.C. §§ 2251, 2251A, or 2252 “relating to child pornography”), which in turn barred (or was treated as barring) relief. The Tenth Circuit rejected that legal conclusion under the categorical approach.

The court’s comparison focused on the breadth of Colorado’s definitions incorporated into § 18-6-403(3)(c). Colorado criminalizes possessing “sexually exploitative material,” defined to include depictions of a child used for “explicit sexual conduct,” which itself includes “erotic nudity” and “erotic fondling.” The court emphasized the “erotic nudity” definition includes, among other things, display of “the human breasts, or the undeveloped or developing breast area of the human child” for the purpose of sexual gratification.

By contrast, as framed in the opinion, the federal analog (through 18 U.S.C. § 2252(a)(4)(B) and the definition in 18 U.S.C. § 2256(2)(B)) does not encompass the same breadth—specifically, the court held it does not reach “touching or display of a minor’s breasts or buttocks for the purpose of sexual gratification” in the manner the Colorado statute can.

2) “Realistic probability” satisfied through Colorado case law

The court did not stop at textual overbreadth; it also found the “realistic probability” requirement met. Woode relied on People v. Gagnon, where Colorado prosecuted and sustained a conviction based on photographs that displayed a substantial portion of a minor’s breasts posed for sexual gratification and held those images could qualify as “erotic nudity.” The Tenth Circuit treated Gagnon as concrete proof that Colorado applies its statute to conduct outside the federal analog.

The government’s attempt to characterize Woode’s argument as involving “any touching” or “any display” failed because the court read Woode’s briefing as consistently cabined to the statutory sexual-gratification context—and, in any event, Gagnon exemplified precisely that kind of contextual sexualization while still exceeding the federal analog’s reach as the court understood it.

3) The court’s treatment of the government’s reliance on unpublished authority

The government’s primary response was to invoke Serrato-Navarrete v. Holder. The court refused to extend that unpublished, factually distinct decision to a different asserted mismatch. This underscores a practical lesson: categorical-match litigation is definition-sensitive; small shifts in the state statute’s incorporated definitions (here, “erotic nudity”/breasts) can be decisive.

4) Withholding of removal and CAT: disposition by waiver/forfeiture (not merits)

On withholding, the IJ denied relief on multiple independent grounds (including adverse credibility, lack of nexus to a protected ground, and speculation). Woode did not challenge those dispositive findings before the BIA; the BIA deemed the issues waived; and Woode then failed to challenge the BIA’s waiver ruling in the Tenth Circuit. Under Bronson v. Swensen, the court treated this as waiver/forfeiture and denied review.

The CAT claim followed the same path: the IJ made a dispositive finding (no showing it was more likely than not he would be tortured by or with acquiescence of the Ghanaian government), the BIA deemed any challenge waived, and the petitioner did not squarely attack the BIA waiver ruling in the court of appeals. The court also noted (assuming without deciding) potential exhaustion problems under Garcia-Carbajal v. Holder (with the caveat that Santos- Zacaria v. Garland has altered some doctrine).

C. Impact

1) Immigration consequences for Colorado sexual-exploitation convictions

The opinion’s most important practical effect is its holding that Colo. Rev. Stat. § 18-6-403(3)(c) is not categorically an aggravated-felony child-pornography offense under 8 U.S.C. § 1101(a)(43)(I) as analyzed against the cited federal provisions. That removes (in this case) the agency’s stated basis for automatically pretermitting cancellation and asylum on aggravated-felony grounds and forces further proceedings on remand.

2) Litigation framing: overbreadth + state-case proof

Woode also demonstrates a durable template for categorical challenges: pair statutory text (here, “erotic nudity” including breasts) with a state appellate decision (People v. Gagnon) illustrating actual prosecution of the broader conduct to satisfy De Leon v. Lynch’s “realistic probability” inquiry.

3) Preservation remains outcome-determinative for protection claims

The decision is equally a cautionary tale: even potentially serious protection claims (withholding/CAT) may be effectively unreviewable if the applicant fails to contest each dispositive ground to the BIA and then fails to challenge the BIA’s waiver determination on petition for review.

4. Complex Concepts Simplified

• Aggravated felony (immigration law): A term of art that triggers severe immigration consequences, including mandatory removal consequences and categorical bars to certain relief. It does not always track state felony labels.
• Categorical approach: The court compares the elements of the state offense (the minimum conduct the statute criminalizes) to the elements of the federal generic offense—without looking at what the defendant actually did in the specific case.
• “Realistic probability” test: Even if overbreadth is argued, courts often require proof the state actually applies the statute in the broader way (commonly shown with state cases like People v. Gagnon).
• Pretermit: The agency ends the application without a merits hearing because it believes the applicant is legally ineligible.
• Waiver/forfeiture (appellate): If you do not raise and brief an issue at the right time (to the BIA and then to the court of appeals), the reviewing court typically will not reach it.
• Exhaustion (immigration petitions): Courts generally expect issues to be presented to the agency first, so the BIA has the chance to address them before judicial review.

5. Conclusion

Woode v. Bondi establishes (as a matter of the Tenth Circuit’s categorical analysis in this case) that Colorado’s § 18-6-403(3)(c) sweeps more broadly than the relevant federal child-pornography analog because it reaches “erotic nudity” involving breast display for sexual gratification, and Colorado has prosecuted that broader conduct (People v. Gagnon). Accordingly, the conviction could not be treated as an aggravated felony under 8 U.S.C. § 1101(a)(43)(I) for purposes of pretermitting cancellation of removal and asylum, requiring remand.

At the same time, the decision underscores that substantive protection claims (withholding and CAT) can rise or fall on procedure: failure to challenge dispositive grounds before the BIA—and failure to contest the BIA’s waiver ruling on petition for review—will generally foreclose appellate relief.