Unpub. BIA Categorical Approach Victory: Matter of Calderon

"Upon de novo review, we conclude that a conviction under 18 PA. CONS. STAT. § 6312(d) does not qualify categorically as a conviction for an aggravated felony under section 101 (a)(43)(1) of the Act, such that it would render the respondent removable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii).  In particular, we concur with the respondent's appellate contention that the minimum conduct that has a realistic probability of being prosecuted under 18 PA. CONS. STAT. § 63 I2(d) is not punishable under the corresponding federal statute at 18 U.S.C. § 2252(a)(4)(B) (Respondent's Brief at 13-14). ... [W]e agree with the respondent's appellate assertion that 18 PA. CONS. STAT. § 6312(d) is categorically overbroad relative to section 101 (a)(43)(1) of the Act, and we will vacate the Immigration Judge's determination that the respondent was convicted of an offense that is categorically an aggravated felony, as defined thereunder (1.1. at 4; Respondent's Brief at 13-14)." - Matter of Calderon, Jan. 30, 2015, unpub.  [Hats off to Tracey M. Hubbard!]