Matthews v. Barr, Docket No. 16-3145

• Decision Date: 18 June 2019
• Docket Number: August Term, 2017,Docket No. 16-3145
• Citation: 927 F.3d 606
• Parties: Gerard Patrick MATTHEWS, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

927 F.3d 606

Gerard Patrick MATTHEWS, Petitioner,

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

Docket No. 16-3145

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: May 9, 2018

Decided: June 18, 2019

David J. Zimmer, Goodwin Procter LLP, Boston, MA (William M. Jay, Goodwin Procter LLP, Washington, D.C.; Seymour W. James, Jr., Attorney-in-Chief, Hasan Shafiqullah, Attorney-in Charge, Ward J. Oliver, Supervising Attorney, Immigration Law Unit, The Legal Aid Society, New York, NY, on the brief), for Petitioner.

Song Park, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division (Chad A. Readler, Acting Assistant Attorney General, Cindy S. Ferrier, Assistant Director, on the brief), United States Department of Justice, Washington, D.C., for Respondent.

Andrew Wachtenheim, Immigrant Defense Project, New York, NY, for Amici Curiae Brooklyn Defender Services, Queens Law Associates, Neighborhood Defender Service of Harlem, The Bronx Defenders, Essex County Public Defender’s Office, Monroe County Public Defender’s Office, Immigrant Defense Project.

Before: Hall and Carney, Circuit Judges, Koeltl, District Judge.¹

Judge Carney dissents in a separate opinion.

Hall, Circuit Judge:

Petitioner Gerard Patrick Matthews seeks review of an August 2016 decision of the Board of Immigration Appeals ("BIA"), affirming an April 2016 decision of an Immigration Judge ("IJ") that ordered Matthews removed to Ireland on the ground that his convictions for endangering the welfare of a child under New York Penal Law ("NYPL") § 260.10(1) made him removable under Immigration and Nationality Act ("INA") § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), which provides that "[a]ny alien who at any time after admission is convicted of ... a crime of child abuse, child neglect, or child abandonment is deportable." Matthews argues that he is not removable because the New York statute of conviction is not categorically a crime of child abuse under the INA. First, he argues that the INA’s definition of crime of child abuse requires that there be actual harm to a child, or at least a high risk of serious injury. He challenges the BIA’s definition, which encompasses state child endangerment offenses that involve a sufficiently high risk of physical, mental, or moral harm to a child. Because we have deferred to the BIA’s definition as a reasonable interpretation of the crime of child abuse provision in a precedential decision, Florez v. Holder , 779 F.3d 207 (2d Cir. 2015), and we find no basis for departing from that decision, we reject Matthews’s first argument and continue to apply the BIA’s definition of crime of child abuse. Second, Matthews argues that the New York child endangerment law, NYPL § 260.10(1), stretches even further than the BIA’s broad definition because the statute and New York courts’ interpretation of it allow for convictions based on conduct that poses only a minimal risk of nonserious harm to a child. We reject this argument as well: NYPL § 260.10(1) ’s text and New York court decisions applying the statute require proof of a knowing mental state and a likelihood of harm, and Matthews has not shown a realistic probability of conviction for conduct that does not pose a likelihood of harm.

We DENY the petition for review.

BACKGROUND

Petitioner Gerard Patrick Matthews is a native and citizen of Ireland who has lived in the United States as a lawful permanent resident since 1989. Matthews, who was physically and sexually abused as a child, has a long history of alcoholism and has repeatedly exposed himself in public while intoxicated. Between 1990 and 2011, these public exposure incidents resulted in at least nine convictions for public lewdness and two convictions for endangering the welfare of a child under New York Penal Law ("NYPL") § 260.10(1).² Section § 260.10(1) prohibits, as relevant here, "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." Matthews was convicted in 2002 of violating NYPL § 260.10(1) and was sentenced to six months’ imprisonment. In 2003, he pleaded guilty to another NYPL § 260.10(1) violation as well as a public lewdness charge under NYPL § 245.00 and was sentenced to concurrent terms of imprisonment of one year and 90 days, respectively. Matthews testified at his removal hearing that he never intentionally targeted children when he engaged in publicly lewd behavior; rather, he targeted adults, and the child endangerment charges were tacked onto his public lewdness charges because children happened to be present. However, the IJ did not credit Matthews’s accounts of the circumstances of these convictions because they were in stark contrast to the criminal complaints, which alleged that he targeted a nine-year-old boy in one case and two teenage girls in the other.

In 2011, the Department of Homeland Security placed Matthews in removal proceedings through service of a Notice to Appear ("NTA"). The NTA charged Matthews as removable on the ground that his New York convictions for endangering the welfare of a child were crimes of child abuse, child neglect, or child abandonment under 8 U.S.C. § 1227(a)(2)(E)(i). An IJ initially granted Matthews discretionary relief from removal, but the BIA overturned that ruling in 2013. Matthews petitioned for review, and we remanded the case for the agency to explain fully its denial of relief. Matthews v. Holder , 590 F. App'x 75 (2d Cir. 2015). We declined to consider Matthews’s then-unexhausted argument that his convictions for endangering the welfare of a child were not removable offenses (i.e., crimes of child abuse, child neglect, or child abandonment), but observed that Matthews could renew this challenge before the agency on remand. Id . at 77.

On remand, the Government added an additional charge that Matthews was removable for having been convicted of two crimes involving moral turpitude ("CIMTs") based on the public lewdness convictions in 1990 and 1994. See INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) ("Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct ... is deportable.").

In April 2016, the IJ denied all relief and ordered Matthews removed. No. A042 231 142 (Immig. Ct. N.Y. City Apr. 7, 2016). The IJ found that Matthews’s public lewdness convictions were not CIMTs, but concluded that Matthews was removable for crimes of child abuse, neglect, or abandonment based on his convictions under NYPL § 260.10(1). The IJ relied on the BIA’s precedential decision in Matter of Mendoza Osorio , 26 I. & N. Dec. 703 (B.I.A. 2016), which held that a conviction for endangering the welfare of a child under NYPL § 260.10(1) is a crime of child abuse, neglect, or abandonment under the INA. The IJ denied both adjustment of status and cancellation of removal as a matter of discretion, reasoning that Matthews’s "several positive factors" (over twenty-five years’ residence in the United States, a strong relationship with his U.S.-citizen wife, work history, and payment of taxes) were outweighed by his criminal history and lack of rehabilitation.

In August 2016, the BIA dismissed Matthews’s appeal. In re Gerard Patrick Matthews, No. A042 231 142 (B.I.A. Aug. 30, 2016). The BIA agreed that Matthews was removable, rejecting his argument that Mendoza Osorio misinterpreted the scope of New York’s law and holding that NYPL § 260.10(1) "requires a knowing act with a likelihood of harm to a child." Certified Administrative Record ("CAR") at 4. The BIA also agreed with the IJ that Matthews did not merit discretionary relief. Id. at 5.

Matthews, who is represented by pro bono counsel, timely petitioned for review.

DISCUSSION

I. Standard of Review

Where, as here, "the BIA has adopted the IJ’s reasoning and offered additional commentary, we review the decision of the IJ as supplemented by the BIA." Gertsenshteyn v. U.S. Dep’t of Justice , 544 F.3d 137, 142 (2d Cir. 2008). "Whether a conviction qualifies as a removable offense under a stated provision of the INA is a question of law." Mizrahi v. Gonzales , 492 F.3d 156, 157–58 (2d Cir. 2007). We review the BIA’s construction of state criminal law de novo . Id. at 158. "To the extent the question requires us to construe a provision of the INA, however, because the administration of that statute is entrusted to the BIA, our review follows the two-step process outlined in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)." Id.

II. The BIA’s Definition of "Crime of Child Abuse"

Matthews was ordered removed under 8 U.S.C. § 1227(a)(2)(E)(i), which provides that, "[a]ny alien who at any time after admission is convicted of ... a crime of child abuse, child neglect, or child abandonment is deportable." The statute does not define crime of child abuse, neglect, or abandonment, but the BIA has "interpret[ed] the term ‘crime of child abuse’ broadly to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being." Matter of Velazquez-Herrera , 24 I. & N. Dec. 503, 512 (B.I.A. 2008). The BIA held that,

At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that involves the use or exploitation of a child as an object of sexual gratification or as a tool in the commission of serious crimes, such as drug trafficking.

Id. The BIA’s definition also covers child...