No. 23-1318 ___________________________

Nguyen Chi Cuong Nmn Huynh

Petitioner

v.

Merrick B. Garland, Attorney General of the United States

Respondent ____________

Petition for Review of an Order of the Board of Immigration Appeals ____________

Submitted: December 12, 2023 Filed: May 28, 2024 ____________ Before GRUENDER, GRASZ, and KOBES, Circuit Judges. ____________ 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. 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).

-2- 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