Shan Chaudhary v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 21-2951 ___________ SHAN CHAUDHARY, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ________________ On Petition for Review of a Final Order of the Board of Immigration Appeals (No. A072-762-476) Immigration Judge: Robert M. Lewandowski ________________ Submitted Under Third Circuit L.A.R. 34.1(a) November 14, 2022 Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges (Opinion filed November 22, 2022) ___________ OPINION* ___________ AMBRO, Circuit Judge, * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Shan Chaudhary petitions us to review the denial by the Board of Immigration Appeals (“BIA”) of his attempt to overturn his removal order. We deny his petition. I. Chaudhary, a citizen and native of Pakistan, arrived in the United States in 1986 at age five and became a permanent resident in 1995. In August 2019, he pled guilty to five counts of possession of child pornography in violation of 11 Del. C. § 1111 and was sentenced to three years in prison. In August 2020, the Department of Homeland Security (“DHS”) took Chaudhary into immigration custody and issued a Notice to Appear that charged him with removability for being convicted of an aggravated felony relating to his possession of child pornography. 8 U.S.C. § 1227(a)(2)(A)(iii). In October 2020, DHS filed an additional charge of removability based on Chaudhary’s conviction of “a crime of child abuse, child neglect, or child abandonment.” 8 U.S.C § 1227(a)(2)(E)(i). The Immigration Judge (“IJ”) denied the aggravated felony charge of removability because the state statute was overbroad and not a categorial match of the federal statute. However, he sustained the child abuse charge of removability because the BIA’s definition of child abuse covers the conduct criminalized in § 1111. The IJ then determined that, although Chaudhary was statutorily eligible for discretionary cancellation of removal, his circumstances did not warrant a favorable grant. In making this decision, the IJ considered a wide array of factors, including the length of time Chaudhary has lived in the United States, his family connections in the United States, his lack of family connections in Pakistan, the care he provided to his parents with serious health problems, the sexual abuse he experienced as a child, his employment history, and his remorse for the crimes he committed. The IJ also considered Chaudhary’s testimony that he watched child pornography “a few days a week” for four or five 2 years as well as his admitted 25-year history of marijuana use, which also involved a prior possession conviction. App. at 52. Chaudhary appealed the IJ’s decision to the BIA, which dismissed the appeal, ruling that the IJ properly held possession of child pornography is a crime of child abuse and defending the IJ’s decision as a matter of discretion in denying cancellation of removal. The BIA had jurisdiction to review the IJ’s removal decision under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. Because only the BIA can …

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