779 F.3d 207 (2nd Cir. 2015), 14-874, Florez v. Holder

Docket Nº:14-874
Citation:779 F.3d 207
Opinion Judge:DENNIS JACOBS, Circuit Judge:
Party Name:Nilfor Yosel Florez, a/k/a Nilfor Yosel Flores, Petitioner, v. Eric H. Holder, Jr., United States Attorney General, Respondent
Attorney:RICHARD J. LINK, Rochester, New York, for Petitioner. JANETTE L. ALLEN, Office of Immigration Litigation, Civil Division, United States Department of Justice (for Joyce R. Branda, Acting Assistant Attorney General, Civil Division; and Stephen J. Flynn, Assistant Director, Office of Immigration Li...
Judge Panel:Before: JACOBS, LIVINGSTON, and LOHIER, Circuit Judges.
Case Date:March 04, 2015
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
SUMMARY

Florez, a citizen of Honduras and a lawful permanent resident of the U.S., was charged in New York with a variety of offenses. Florez was twice convicted of endangering the welfare of a child, for “knowingly act[ing] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” The first conviction, in 2004, arose from Florez’s involvement ... (see full summary)

 
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Page 207

779 F.3d 207 (2nd Cir. 2015)

Nilfor Yosel Florez, a/k/a Nilfor Yosel Flores, Petitioner,

v.

Eric H. Holder, Jr., United States Attorney General, Respondent

No. 14-874

United States Court of Appeals, Second Circuit

March 4, 2015

Submitted December 16, 2014.

Nilfor Yosel Florez petitions for review of a final order of removal. On appeal, he challenges the Board of Immigration Appeals's broad interpretation of the phrase " crime of child abuse" in the Immigration and Nationality Act. 8 U.S.C. § 1227(a)(2)(E)(i). Because the agency's interpretation is reasonable, we deny the petition.

RICHARD J. LINK, Rochester, New York, for Petitioner.

JANETTE L. ALLEN, Office of Immigration Litigation, Civil Division, United States Department of Justice (for Joyce R. Branda, Acting Assistant Attorney General, Civil Division; and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation), Washington, District of Columbia, for Respondent.

Before: JACOBS, LIVINGSTON, and LOHIER, Circuit Judges.

OPINION

Page 208

DENNIS JACOBS, Circuit Judge:

Nilfor Yosel Florez, a lawful permanent resident of the United States, petitions for review of a final order of removal. Florez was twice convicted of child endangerment under New York State Penal Law § 260.10(1), most recently for driving under the influence of alcohol while his young children were in the car. Based on those convictions, an Immigration Judge ordered Florez's removal from the United States under 8 U.S.C. § 1227(a)(2)(E)(i), which permits removal of " [a]ny alien who at any time after admission is convicted of . . . a crime of child abuse, child neglect, or child abandonment." The BIA affirmed. Florez filed this timely petition for review, arguing that the BIA's broad interpretation of the statutory phrase " crime of child abuse" is unreasonable. We deny the petition.

Page 209

BACKGROUND

Florez is a native and citizen of Honduras, and a lawful permanent resident of the United States. During his time in the United States, the State of New York has charged Florez with a variety of offenses, and convicted him of a few. As relevant here, Florez was twice convicted of endangering the welfare of a child, in violation of New York Penal Law § 260.10(1), for " knowingly act[ing] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." The first conviction, in 2004, arose from Florez's involvement with a co-defendant who was charged with " acting in concert with another person" in the rape of a teenage girl (Florez's precise role in that incident is not clear). The second conviction, in 2010, resulted from Florez's driving under the influence of alcohol while his two children, aged one and nine, were in the car.

The Department of Homeland Security (" DHS" ) commenced removal proceedings in October 2013, charging Florez as removable under 8 U.S.C. § 1227(a)(2)(E)(i), which makes any alien removable if, " at any time after admission," the alien " is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment." Florez admitted the factual allegations in the DHS charging documents, but he denied that he was removable under 8 U.S.C. § 1227(a)(2)(E)(i).

The Immigration Judge held that Florez's New York child-endangerment convictions each satisfied the generic federal definition of a " crime of child abuse." The decision, issued December 3, 2013, relied on two precedential opinions from the Board of Immigration Appeals: Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010). The BIA affirmed the Immigration Judge's order of removal on March 20, 2014, reasoning that Florez's case was controlled by Soram. Florez filed a timely petition for review.

DISCUSSION

Florez makes a single argument on appeal: that the BIA's interpretation of the statutory phrase " crime of child abuse," as including child-endangerment crimes for which injury to a child is not a required element, is so broad as to be unreasonable and not entitled to Chevron deference. Florez concedes that Soram's definition of " a crime of child abuse" is broad enough to include convictions under New York Penal Law § 260.10(1)--so we assume (without deciding) that it is. Accordingly, Florez's petition must be denied unless the BIA's definition of " a crime of child abuse" --first issued in Velazquez-Herrera, then clarified and expanded in Soram--is insufficiently reasonable to support Chevron deference. We hold that the BIA's interpretation is a reasonable reading of a statutory ambiguity; so we deny the petition.

I

To determine whether a state conviction qualifies as a removable offense under the Immigration and Nationality Act (" INA" ), we " generally employ a 'categorical approach' to determine whether the state offense is comparable to an offense listed in the INA." Moncrieffe v. Holder, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). Under the categorical approach, " we look 'not to the facts of the particular prior case,' but instead to...

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