Appellate Case: 24-9568 Document: 33-1 Date Filed: 12/30/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 30, 2025 _________________________________ Christopher M. Wolpert Clerk of Court HENRY KWAME WOODE,
Petitioner,
v. No. 24-9568 (Petition for Review) PAMELA J. BONDI, United States Attorney General, *
Respondent. _________________________________
ORDER AND JUDGMENT ** _________________________________
Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges. _________________________________
Pro se Petitioner Henry Kwame Woode, a native and citizen of Ghana,
petitions for review of the Board of Immigration Appeals’ (BIA) decision affirming
the immigration judge’s (IJ) final removal order denying his applications for relief
On February 5, 2025, Pamela Bondi became Attorney General of the United *
States. Consequently, her name has been substituted as Respondent, per Fed. R. App. P. 43(c)(2).
After examining the briefs and appellate record, this panel has determined **
unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-9568 Document: 33-1 Date Filed: 12/30/2025 Page: 2
from removal. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we grant the
petition for review in part and deny in part.
I. BACKGROUND
A. Underlying Facts
Petitioner was admitted to the United States in August 2012 as an F-1
academic student to attend Morehouse College. By October 2012, Petitioner’s F-1
status was terminated because he failed to maintain student status. Nevertheless, he
remained in the United States.
In October 2017, Petitioner married a United States citizen and filed an
application to adjust his status. The United States Citizenship and Immigration
Services (USCIS) denied the application because Petitioner was not legally free to
marry.
In June 2020, the Department of Homeland Security (DHS) initiated removal
proceedings against Petitioner by filing a Notice to Appear (NTA) in immigration
court. The NTA charged Petitioner with removability under § 1227(a)(1)(C)(i) as a
noncitizen who was admitted under § 1101(a)(15)(F)(i), and who failed to maintain
or comply with the conditions of the status under which he had been admitted.
In January 2021, Petitioner was arrested in Aurora, Colorado, and charged
with patronizing a prostituted child and sexual exploitation of a child—possession
with intent to deal in, sell, or distribute child pornography. In July 2021, Petitioner
pleaded guilty to sexual exploitation of a child—possession with intent to deal in,
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sell, or distribute child pornography in violation of § 18-6-403(3)(c) of the Colorado
Revised Statutes (the Conviction). Petitioner was sentenced to ten years’ probation.
B. Agency Proceedings
In November 2023, Petitioner appeared pro se before an immigration judge
and admitted the factual allegations in the NTA. The IJ sustained the charge of
removability and denied Petitioner’s applications for cancellation of removal,
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). In the final removal order, the IJ concluded that under the
categorical approach the Conviction was an aggravated felony offense relating to
child pornography as defined in 8 U.S.C. § 1101(a)(43)(I). Such a conviction
rendered Petitioner ineligible for cancellation of removal and asylum. So, the IJ
pretermitted those applications. The IJ then determined Petitioner was not credible
and did not establish that it is more likely than not that he would be targeted on
account of any protected ground for purposes of withholding of removal. The IJ also
determined, for purposes of his CAT claim, Petitioner did not establish that it was
more likely than not that he would be tortured by (or with the acquiescence of) the
Ghanian government. Petitioner appealed the IJ’s removal order to the BIA.
A single board member of the BIA affirmed the IJ’s removal order and
dismissed the appeal. The BIA rejected Petitioner’s credibility determination
challenges because he did not address the inconsistencies the IJ cited. The BIA
agreed that the Conviction was an aggravated felony relating to child pornography,
and observed the Conviction barred Petitioner from establishing good moral character
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for cancellation relief. The BIA also determined that, because Petitioner did not
challenge the dispositive determinations related to his withholding of removal and
CAT protection claims, he waived any challenges to the denial of those claims. The
BIA then affirmed the IJ’s denial of Petitioner’s applications for cancellation of
removal and asylum.
C. Legal Standards
i. Cancellation of removal
Under 8 U.S.C. § 1229b(b)(1), the Attorney General has discretion to cancel
the removal of certain noncitizens who have been deemed removable. A noncitizen
may qualify for cancellation of removal if the noncitizen:
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under [8 U.S.C.] section 1182(a)(2), 1227(a)(2), or 1227(a)(3), subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the [noncitizen’s] spouse, parent, or child, who is a citizen of the United States or [a noncitizen] lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1). Thus, under § 1229b(b)(1)(C), a noncitizen is statutorily
ineligible for cancellation of removal if he has been convicted of an offense under
8 U.S.C. § 1227(a)(2), which includes “an aggravated felony.” § 1227(a)(2)(iii). As
defined in 8 U.S.C. § 1101(a)(43)(I), an “aggravated felony” includes child
pornography offenses described in 18 U.S.C. §§ 2251, 2251A, or 2252.
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ii. Asylum
An applicant may be eligible for asylum if the applicant is a refugee as defined
in 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A refugee is a person
unable or unwilling to return to—and unable or unwilling to avail himself of the
protection of—his home country due to “persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion[.]” § 1101(a)(42)(A); Rodas-Orellana v. Holder,
780 F.3d 982, 986 (10th Cir. 2015). We refer to these five categories as “protected
grounds.” Id. (internal quotation marks omitted). Persecution occurs when the
government (or another party the government is unable or unwilling to control)
inflicts suffering or harm upon one of the protected grounds. Ritonga v. Holder,
633 F.3d 971, 975 (10th Cir. 2011). The suffering or harm “must entail more than
just restrictions or threats to life and liberty.” Id. (internal quotation marks omitted).
But a refugee is not eligible for asylum if he has been convicted of an aggravated
felony because that constitutes a particularly serious crime. See 8 U.S.C.
§ 1158(b)(2)(A)(ii), (2)(B)(i).
iii. Withholding of removal
Like asylum, to qualify for withholding of removal, an applicant must show “a
clear probability of persecution on account of a protected ground.” Rodas-Orellana,
780 F.3d at 986-87 (internal quotation marks omitted). Withholding of removal
differs from asylum in that the burden of proof is higher. Id. at 986.
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iv. CAT protection
An applicant may be eligible for CAT protection if the applicant establishes
that it is more likely than not that he will be tortured in the proposed country of
removal, see 8 C.F.R. § 1208.16(c)(2), by, or with the acquiescence of, a public
official, id. § 1208.18(a)(1). An applicant need not show a nexus between the harm
and a protected ground. Ritonga, 633 F.3d at 978.
II. DISCUSSION
A. Issues for Review
Petitioner essentially raises three issues for review: (1) Whether the
Conviction constitutes an aggravated felony making Petitioner statutorily ineligible
for cancellation of removal and asylum; (2) Whether the agency erred by denying
Petitioner’s application for withholding of removal; and (3) Whether the agency erred
by denying Petitioner’s application for CAT protection.
B. Standards of review
“When a single member of the BIA issues a brief order affirming an IJ’s
decision, this court reviews both the decision of the BIA and any parts of the IJ’s
decision relied on by the BIA in reaching its conclusion.” Dallakoti v. Holder,
619 F.3d 1264, 1267 (10th Cir. 2010) (internal quotation marks omitted). We review
legal determinations de novo and factual determinations for substantial evidence. Id.
“Under the substantial evidence standard, factual findings are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Id. (internal
quotation marks omitted); see also 8 U.S.C. § 1252(b)(4)(B). Ordinarily, we lack
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jurisdiction to review discretionary denials of cancellation of removal applications.
§ 1252(a)(2)(B)(i). But when the denial for relief turns on a legal determination, we
review that legal issue de novo. Zarate-Alvarez v. Garland, 994 F.3d 1158, 1161
(10th Cir. 2021).
C. Cancellation of Removal and Asylum
We first consider whether the agency erred by deciding to pretermit
Petitioner’s applications for cancellation of removal and asylum based on its
determination that his state conviction constituted an aggravated felony. We use the
categorical approach to determine whether a state conviction is an aggravated felony.
See Bedolla-Zarate v. Sessions, 892 F.3d 1137, 1139 (10th Cir. 2018). “Under the
categorical approach, we consider whether the least of the acts criminalized by the
state statute falls within the generic federal definition . . . .” Id. at 1140 (internal
quotation marks omitted). Thus, our analysis compares the state statute with its
federal analog to “examine whether the state statute categorically fits within the
generic offense.” Id. In our examination we consider whether there is a “realistic
probability” that the statute will be applied to the least of the acts criminalized. De
Leon v. Lynch, 808 F.3d 1224, 1230, 1232 (10th Cir. 2015) (internal quotation marks
and citation omitted). Relevant here, the applicable federal definition of an
aggravated felony includes “an offense described in section 2251, 2251A, or 2252 of
Title 18 (relating to child pornography)[.]” 8 U.S.C. § 1101(a)(43)(I).
In Colorado, a conviction for sexual exploitation of a minor under
§ 18-6-403(3)(c) requires a showing that a person knowingly “[p]ossesses with the
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intent to deal in, sell, or distribute . . . sexually exploitative material[.]” “Sexually
exploitative material” means “visual material that depicts a child engaged in,
participating in, observing, or being used for explicit sexual conduct.”
§ 18-6-403(2)(j). “Explicit sexual conduct” includes “sexual intercourse, sexual
intrusion, erotic fondling, erotic nudity, masturbation, sadomasochism, or sexual
excitement.” § 18-6-403(2)(e). “Erotic nudity” is defined as
the display of the human male or female genitals or pubic area, the underdeveloped or developing genitals or pubic area of the human male or female child, the human breasts, or the underdeveloped or developing breast area of the human child, for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.
§ 18-6-403(2)(d). And “erotic fondling” is defined as
touching a person’s clothed or unclothed genitals or pubic area, developing or undeveloped genitals or pubic area (if the person is a child), buttocks, breasts, or developing or undeveloped breast area (if the person is a child), for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved. “Erotic fondling” shall not be construed to include physical contact, even if affectionate, which is not for the purpose of real or simulated overt sexual gratification or stimulation of one or more of the persons involved.
§ 18-6-403(2)(c).
A conviction under 18 U.S.C. § 2252(a)(4)(B) also requires a showing that a
person “knowingly possess, or knowingly accesses with intent to view,” a visual
depiction of a minor engaged in sexually explicit conduct. The federal statute defines
“sexually explicit conduct” as “graphic sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between persons of the same or
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opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or
pubic area of any person is exhibited[.]” 18 U.S.C. § 2256(2)(B).
Petitioner’s argument is straightforward. He contends that 18 U.S.C. § 2252
doesn’t include conduct described in the state statutes. Specifically, he points out
that 18 U.S.C. § 2256(2)(B)’s definition of “sexually explicit conduct” doesn’t
encompass any touching or display of a minor’s breasts or buttocks for the purpose of
sexual gratification. And he cites People v. Gagnon, 997 P.2d 1278 (Colo. App.
1999), to show not only that is there a “realistic probability” that the statute will be
applied to the least of the acts criminalized, De Leon, 808 F.3d at 1232, but Colorado
has actually prosecuted someone for such conduct, Gagnon, 997 P.2d at 1280, 1282.
The government doesn’t specifically address the statutory language at issue
here. Instead, it suggests that this court, like the agency below, should rely on our
unpublished decision in Serrato-Navarrete v. Holder, 601 F. App’x 734 (10th Cir.
2015). There, the petitioner pleaded guilty to possession of child pornography under
a separate statute, § 18-6-403(3)(b.5) (sexual exploitation of a child, possession of
material). Id. at 734. He argued that the BIA erred in concluding his conviction was
for an aggravated felony because § 18-6-403(3)(b.5) contains broader language than
its federal analog—specifically it includes the depiction of a minor “‘engaged in,
participating in, observing, or being used for’ sexually explicit conduct, whereas
§ 2252(a)(4)(B) only refers to the depiction of a minor ‘engaging in’ sexually explicit
conduct.” Id. at 736. In rejecting this argument, we determined that “participating
in, observing, or being used for” was not legally distinct from “engaged in,” and
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therefore, § 18-6-403(3)(b.5) was a categorical match to sexual exploitation of a
minor under 18 U.S.C. § 2252. Id. at 737.
But we are not bound by our unpublished decision in Serrato-Navarette,
which, in any event, discussed a different statutory definition than the one at issue
here and focused on different statutory language. Instead, we conclude, based on our
review of the state statute at issue here, § 18-6-403(2)(d), that erotic nudity includes,
among other things, the display of “the human breasts, or the undeveloped or
developing breast area of the human child” for the purpose of sexual gratification.
And because 18 U.S.C. § 2252 doesn’t include any touching or display of a minor’s
breasts or buttocks for the purpose of sexual gratification, § 18-6-403(3)(c) does not
categorically fit within the generic offense.
Moreover, as Petitioner points out, Colorado has prosecuted someone for the
broader conduct described in § 18-6-403(2)(d). In People v. Gagnon, the defendant
was prosecuted for taking photos of a minor in sexual poses that showed a significant
portion of her breasts. 997 P.2d at 1280. The Colorado Court of Appeals held that
such conduct was the type of conduct described in the erotic nudity definition. Id. at
1282. In analyzing whether the photos qualified as erotic nudity the Gagnon court
asked: (1) whether the image depicted a part of the body described in the statute, and
(2) whether the image was “for the purpose of real or simulated overt sexual
gratification or stimulation of one or more of the persons involved.” Id. at 1281-82.
The court emphasized the defendant possessed images that displayed a substantial
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portion of the minor’s breasts, and the photos clearly showed they were for the
purpose of sexual gratification. Id. at 1282.
The government seeks to undermine Petitioner’s argument, pointing out that
Gagnon focused on the context of the images, not simply “any touching” or “any
display” of a child’s body part. We concur with the government that the Colorado
statute does not criminalize “any touching” or “any display” of a child’s body part.
And we agree that context matters in analyzing statutory language. But we can’t
agree with the government’s myopic focus on Petitioner’s references in his brief to
“any touching” and “any display”—especially given Petitioner’s brief explicitly
confines “any touching” and “any display” to the context of “real or simulated overt
sexual gratification.” See Pet’r’s Opening Br. at 27-28. Indeed, the defendant in
Gagnon was convicted for photographing a minor’s breasts while she was posed in
positions for the purpose of sexual gratification. 997 P.2d at 1282. Yet such conduct
is not proscribed in the federal analog. See 18 U.S.C. §§ 2252(a)(4)(B), 2256(2)(B).
Petitioner has therefore met his burden to show there is a realistic probability
that someone could be prosecuted under § 18-6-403(3)(c) for conduct that is not
criminalized in § 2252(a)(4)(B). Because § 18-6-403(3)(c) is not a categorical match
to its federal analog to constitute an aggravated felony, we conclude the agency erred
by deciding to pretermit Petitioner’s applications for cancellation of removal and
asylum based on the Conviction.
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D. Withholding of Removal
Petitioner next attempts to challenge the denial of his application for
withholding of removal. But as the government points out, Petitioner has clearly
waived this challenge.
The IJ disposed of Petitioner’s withholding of removal claim on three separate
grounds: (1) Petitioner failed to testify credibly; (2) Petitioner didn’t establish that it
is more likely than not that he would be targeted by cartels on account of a protected
ground; and (3) Petitioner’s fear of future harm is speculative. Notably, Petitioner
then failed to challenge any of these findings before the BIA. The BIA thus found
that he had waived these issues and affirmed the denial of his withholding of removal
claim. And Petitioner now fails to challenge the BIA’s waiver determination before
this court. Thus, as the government argues, he has waived his challenge to any of the
IJ’s reasons for denying his withholding claim and we affirm the denial of his
petition for review as to this claim. See Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (“[T]he omission of an issue in an opening brief generally forfeits
appellate consideration of that issue.”).
E. CAT
Petitioner also challenges the agency’s denial of his CAT protection claim.
The IJ found that Petitioner did not show past or potential future torture by the
Ghanian government—a finding dispositive to a CAT protection claim. The BIA
determined Petitioner did not challenge this finding, and thus deemed it waived.
Before this court, Petitioner appears to claim that he can show past and potential
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future persecution on account of his position as a former narcotics control board
officer. He also argues, for the first time, that the IJ minimized his family’s past and
continued persecution, dismissed serious human rights violations, and introduced
assumptions about his safety. The government again points out that Petitioner failed
to properly challenge the IJ’s findings before the BIA, and now fails to challenge the
BIA’s waiver determination. The government asserts that Petitioner’s other
arguments challenging the IJ’s findings are not properly before this court, because
they are unexhausted challenges to the agency’s denial of CAT protection.
We assume, without deciding, that Petitioner’s arguments challenging the
findings are unexhausted. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237
(10th Cir. 2010) (“It is a fundamental principle of administrative law that an agency
must have the opportunity to rule on a challenger’s arguments before the challenger
may bring those arguments to court.”), abrogated in part on other grounds by Santos-
Zacaria v. Garland, 598 U.S. 411 (2023). We also conclude Petitioner’s failure to
challenge the BIA’s waiver determination in this court precludes appellate review.
Bronson, 500 F.3d at 1104.
III. CONCLUSION
We deny the petition for review as it relates to Petitioner’s claims for
withholding of removal and CAT protection. We grant the petition for review as it
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relates to the cancellation of removal and asylum claims and remand for further
proceedings. And we grant Petitioner’s motion to proceed in forma pauperis.
Entered for the Court
Nancy L. Moritz Circuit Judge