Acevedo v. Barr

• Decision Date: 03 December 2019
• Docket Number: Docket No. 17-3519,August Term 2019
• Citation: 943 F.3d 619
• Parties: Braulio Duran ACEVEDO, Petitioner, v. William P. BARR, United States Attorney General, Respondent
• Court: U.S. Court of Appeals — Second Circuit

943 F.3d 619

Braulio Duran ACEVEDO, Petitioner,

v.William P. BARR, United States Attorney General, Respondent,

Docket No. 17-3519

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: August 20, 2019

Decided: December 3, 2019

Andrea Sáenz (Sophie Dalsimer on the brief), Brooklyn Defender Services, Brooklyn, New York, for Petitioner.

Aric Anderson, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Civil Division, Kohsei Ugumori, Senior Litigation Counsel, on the brief) Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before: Hall and Livingston, Circuit Judges, and Restani.¹

Jane A. Restani, Judge:

Petitioner seeks relief from an order of the Board of Immigration Appeals ("BIA") affirming a decision by an Immigration Judge ("IJ") finding that he is removable for having been convicted of aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii). Because the court finds that Petitioner’s conviction under New York Penal Law ("N.Y.P.L.") §§ 110.00, 130.45 constitutes sexual abuse of a minor, and thus is an aggravated felony for purposes of the Immigration and Nationality Act ("INA"), we DENY the petition for review.

BACKGROUND

Braulio Duran Acevedo is a lawful permanent resident from Mexico who has lived in the United States since December 1969. On May 19, 2015, Acevedo was convicted of attempted oral or anal sexual conduct with a person under the age of fifteen, N.Y.P.L. §§ 110.00, 130.45(1), and for sexual contact with a person under the age of fourteen, N.Y.P.L. § 130.60(2).

Following Acevedo’s conviction and incarceration, the Department of Homeland Security ("DHS") served him with a Notice to Appear ("NTA") and detained him in immigration custody. Acevedo was found removable under three provisions of the INA for conviction of: aggravated felonies involving sexual abuse of a minor ("SAM"), 8 U.S.C. §§ 1101(a)(43)(A),¹ 1227(a)(2)(A)(iii) ; a crime of child abuse, child neglect, or child abandonment, 8 U.S.C. § 1227(a)(2)(E)(i) ; and two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, 8 U.S.C. § 1227(a)(2)(A)(ii).

Because the IJ found that the convictions constituted aggravated felonies of SAM, Acevedo additionally was rendered ineligible for a hearing on his application for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). Acevedo appealed the decision to the BIA, which affirmed the ruling.²

The BIA applied a categorical approach, considering the minimum conduct necessary to violate the state statutes under which Acevedo was convicted and determining whether such conduct falls outside the generic federal definition of SAM for the purpose of the INA, 8 U.S.C. § 1101(a)(43)(A). The BIA used the definition of "sexual abuse" found in 18 U.S.C. § 3509(a)(8)³ as a guide in identifying crimes that qualify as SAM, rejecting Acevedo’s argument that the state statutes must be an identical match with the federal crime of SAM codified in 18 U.S.C. § 2243.

The BIA also considered the Supreme Court’s ruling in Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017). The BIA determined that its holding in the instant case was not at odds with Esquivel-Quintana because that case involved the limited consideration of whether sexual abuse of a minor for INA purposes requires a victim to be younger than sixteen in cases where a statutory rape offense is predicated solely on age of the participants. The BIA determined that Acevedo’s convictions under N.Y.P.L. §§ 110.00, 130.45(1) and 130.60(2)⁴ both categorically fit within the meaning of SAM and upheld the IJ’s decision barring Acevedo’s application for cancellation of removal.⁵

Acevedo argues that the Supreme Court’s holding in Esquivel-Quintana precludes the BIA from relying on 18 U.S.C. § 3509(a) as a "definitional guide" for determining what conduct qualifies as an aggravated felony of SAM under 8 U.S.C. § 1101(a)(43)(A), § 1227(a)(2)(A)(iii). He insists that the decision requires the use of 18 U.S.C. § 2243, a federal criminal provision for SAM, as the federal generic definition of SAM. Acevedo also argues that his crimes of conviction are strict liability crimes, and thus cannot constitute aggravated felonies, which, pursuant to 18 U.S.C. § 2243, necessitate a more culpable mens rea to sustain a conviction. Accordingly, Acevedo argues that the failure of the BIA to address mens rea requires granting of his petition.

JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction over questions of law that arise from BIA proceedings. 8 U.S.C. § 1252 (a)(2)(D). Because the BIA did not rely on the opinion of the IJ, but rather conducted its own legal analysis on the issues appealed, the court reviews the decision of the BIA. See Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005).

The court considers "[w]hether a conviction qualifies as a removable offense under a stated provision of the INA" de novo . Mizrahi v. Gonzales , 492 F.3d 156, 157–58 (2d Cir. 2007).

DISCUSSION

I. The Categorical Approach

The INA provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission" to the United States is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). Further, an aggravated felony conviction renders an individual ineligible for discretionary cancellation of removal. 8 U.S.C. § 1229b(a)(3). One crime constituting an aggravated felony under the INA is SAM. 18 U.S.C. § 1101(a)(43)(A). Both federal and state convictions for SAM may qualify as aggravated felonies. 18 U.S.C. § 1101(a)(43).

To determine whether a conviction qualifies as an aggravated felony, we apply a categorical analysis. Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). A categorical analysis looks at the state statute of conviction, not the specific facts of the crime. Id. Therefore, the court must determine if N.Y.P.L. §§ 110.00, 130.45(1) and 130.60(2) "categorically fit[ ] within the ‘generic’ federal definition of" the corresponding aggravated felony. Id. at 190, 133 S.Ct. 1678 (citation omitted). A state conviction is an "aggravated felony" under the INA only if the least of the acts criminalized by the state statute fall within the generic federal definition of SAM. See Johnson v. United States , 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

The analysis here is twofold. First, the court must determine what constitutes the generic federal definition of sexual abuse of a minor. Then, the court must determine if the "least of the acts criminalized" by the relevant state provisions falls within the generic federal definition of SAM. Esquivel-Quintana , 137 S. Ct. at 1568.

II. The Federal Definition of Sexual Abuse of a Minor

What constitutes "sexual abuse of a minor" is not defined by the INA.⁶ The INA also does not incorporate by reference any definition in the criminal code. The legislative history of the addition of SAM to the INA’s list of aggravated felonies is similarly unhelpful. Accordingly, the BIA finds "useful" guidance in the definition of "sexual abuse" found in a federal criminal procedure statute regarding "[t]he rights of child victims and child witnesses." See In re Rodriguez-Rodriguez , 22 I. & N. Dec. 991, 995 (B.I.A. 1999) (citing 18 U.S.C. § 3509(a) ). That statutory provision defines sexual abuse as:

[I]nclud[ing] the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children[.]

18 U.S.C. § 3509(a)(8). This court has previously granted deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) to the BIA, the agency charged with administering the INA, in its adoption of 18 U.S.C. § 3509(a)(8) as a guide in defining what constitutes SAM. See Mugalli v. Ashcroft , 258 F.3d 52, 58–60 (2d Cir. 2001).

The Supreme Court in Esquivel-Quintana , however, avoided any issue of Chevron deference with respect to 18 U.S.C. § 3509(a)(8) by deciding that, for the purposes of that case, "the [INA], read in context, unambiguously forecloses the [BIA’s] interpretation" Esquivel-Quintana , 137 S. Ct. at 1572 (noting that "[n]either the rule of lenity nor Chevron applie[d]"). Although the Court did not to the BIA’s use of 18 U.S.C. § 3509(a)(8) in that case, it also did not foreclose the BIA’s use of that statute in other instances. Accordingly, we conclude that our decision in Mugalli to grant deference to the BIA in its use of 18 U.S.C. § 3509(a)(8) in identifying which crimes serve as SAM under the INA survives Esquivel-Quintana . See Matthews v. Barr , 927 F.3d 606, 614–16 (2d Cir. 2019) (rejecting petitioner’s argument that following Esquivel-Quintana the court should reconsider affording Chevron deference to the BIA’s interpretation of a "crime of child abuse" under the INA).

Petitioner further argues that a heightened mens rea is required for an offense to qualify as SAM. The relevant statute, 18 U.S.C. § 3509(a)(8), does not, however, provide guidance as to the mens rea a defendant must possess for a conviction to qualify as sexual abuse of a minor. Here, the BIA did not expressly analyze the mens rea required for a crime to qualify as SAM but found that the convictions at issue "both categorically fit within the meaning" of 18 U.S.C. § 3509(a)(8). Previously, we have at least implicitly endorsed a heightened mens rea requirement in order for a crime to qualify as sexual abuse of a minor. See Oouch v. U.S. Dep’t of Homeland Sec. , 633 F.3d 119, 124 (2d Cir. 2011) (noting that the "knowing" mental state required to satisfy a conviction under N.Y.P.L. § 263.05 was "fully as stringent as the mental state implied by the actions enumerated in [ 18 U.S.C. § 3509(a)(8) ]"). Because the INA itself and the relevant...