Oouch v. United States Dep't of Homeland Sec.

• Decision Date: 28 January 2011
• Docket Number: Docket No. 09–4834–ag.
• Citation: 633 F.3d 119
• Parties: Alexander OOUCH, a.k.a. Alexander Stasha, a.k.a. Alexander Oush, Petitioner,v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Eric H. Holder, Jr., in his capacity as Attorney General of the United States, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

633 F.3d 119

Alexander OOUCH, a.k.a. Alexander Stasha, a.k.a. Alexander Oush, Petitioner,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Eric H. Holder, Jr., in his capacity as Attorney General of the United States, Respondents.

Docket No. 09–4834–ag.

United States Court of Appeals, Second Circuit.

Submitted: Sept. 2, 2010.Decided: Jan. 28, 2011.

Frederick P. Korkosz, Pearson & Korkosz, Albany, NY, for Petitioner (on submission).Stefanie Notarino Hennes, Office of Immigration Litigation, United States Department of Justice, Washington, DC (Tony West, Leslie McKay, and Kelly J. Walls on the brief), for Respondents (on submission).Before: JACOBS, Chief Judge, RAGGI, Circuit Judge, RAKOFF, District Judge.^*DENNIS JACOBS, Chief Judge:

Petitioner Alexander Oouch, a native and citizen of Russia, was convicted of ( inter alia ) the use of a child in a sexual performance in violation of New York Penal Law (“N.Y.P.L.”) § 263.05. Based on that conviction, the Department of Homeland Security issued a Notice to Appear, initiating removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii) for the aggravated felony of “sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43)(A). ¹ On June 1, 2009, an immigration judge determined he was removable and ineligible for cancellation of removal.

The Board of Immigration Appeals (“BIA”) dismissed his appeal on October 23, 2009, applying the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine that the conviction was an aggravated felony. The BIA reasoned that, although N.Y.P.L. § 263.05 is divisible, all divisions constitute sexual abuse of a minor, so that any conviction under the statute constitutes an aggravated felony.

Oouch filed a timely petition for our review, which presents a question of law: whether N.Y.P.L. § 263.05 constitutes an “aggravated felony” for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). We dismiss the petition.

I

An alien who has committed an aggravated felony can be removed from the country upon the order of the Attorney General. See 8 U.S.C. § 1227(a)(2)(A)(iii). We lack jurisdiction to review any final order removing an alien who committed an aggravated felony covered in § 1227(a)(2)(A)(iii). See § 1252(a)(2)(C). We retain jurisdiction, however, to determine constitutional claims and questions of law that arise from BIA proceedings. See § 1252(a)(2)(D). Whether an offense is an aggravated felony for purposes of the immigration laws is a question of law. See Blake v. Gonzales, 481 F.3d 152, 155–56 (2d Cir.2007). We review these legal and constitutional issues de novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.2007).

One category of aggravated felony is “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Oouch was charged with removability on that basis. We therefore consider, de novo, whether a violation of N.Y.P.L. § 263.05 constitutes “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), with Chevron deference as to the BIA's construal of the Immigration and Nationality Act (“INA”), see Joaquin–Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006). The inquiry determines our jurisdiction: If Oouch's conviction is an aggravated felony, we must dismiss the petition for lack of jurisdiction; if not, we may exercise jurisdiction and vacate the order of removal. See Sui v. INS, 250 F.3d 105, 110 (2d Cir.2001).

A

The BIA is charged with interpreting and enforcing the INA, including 8 U.S.C. § 1101(a)(43)(A). See § 1103(a)(1); 8 C.F.R. § 1003.1. The BIA's interpretation of the INA is entitled to the deference prescribed in 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). Joaquin–Porras, 435 F.3d at 178; Sui, 250 F.3d at 111–12. Congress provided no further definition of the term “sexual abuse of a minor” in § 1101(a)(43)(A). Since the term is not self-defining and is of uncertain reach, we cannot conclude in this case that the intent of Congress is manifest.

The BIA analyzed and interpreted the term “sexual abuse of a minor” in In re Rodriguez–Rodriguez, 22 I. & N. Dec. 991, 994–96 (BIA 1999). In so doing, it consulted other federal statutes that define similar sex offenses. The narrow definition of “sexual abuse” in 18 U.S.C. §§ 2242, 2243, and 2246 was deemed inapposite because it required contact with the victim. Id. at 996. Instead, the BIA adopted the meaning of “sexual abuse” in 18 U.S.C. § 3509 ² to operate as a “guide in identifying the types of crimes [it] would consider to be sexual abuse of a minor.” Id. The BIA adopted so broad and flexible a definition in view of the congressional intent to “expand the definition of an aggravated felony and to provide a comprehensive statutory scheme to cover crimes against children” through the grounds of deportability added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104–208, Div. C, 110 Stat. 3009–546. Id. at 994, 996.

We have already held that this definition is entitled to Chevron deference. See Mugalli v. Ashcroft, 258 F.3d 52, 56 (2d Cir.2001). Oouch urges us to follow the Ninth Circuit's in banc decision to the contrary in Estrada–Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) ( in banc ), which declined to give Chevron deference to Rodriguez–Rodriguez in a case involving a statutory rape statute. But since Estrada–Espinoza is contrary to Mugalli, we adhere to our Circuit law.³

B

In assessing whether an alien's conviction renders him removable, we use a categorical approach that looks to the elements of the penal statute rather than the particulars of the alien's conduct. Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Canada v. Gonzales, 448 F.3d 560, 565 (2d Cir.2006). The inquiry is whether “every set of facts violating a statute” satisfies the criteria for removability; in effect, only the minimum criminal conduct necessary for a conviction is relevant. Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir.2004).

The inquiry gets complicated when a criminal statute proscribes several classes of criminal acts—some of them grounds for removal, and some not. See Dulal–Whiteway v. U.S. Dep't of Homeland Sec., 501 F.3d 116, 121–22 (2d Cir.2007), abrogated on other grounds by Nijhawan v. Holder, ––– U.S. ––––, 129 S.Ct. 2294, 2298, 174 L.Ed.2d 22 (2009). For such a “divisible statute,” the record of conviction may be reviewed under a modified categorical approach to ascertain which class of criminal act furnished the basis for the defendant's conviction. See, e.g., id. at 124–27. We have not yet fixed on an approach for determining when a statute is thus divisible.⁴ There is no need to do that now, however; N.Y.P.L. § 263.05 is drafted as discrete offenses in a disjunctive list. It is settled in this Circuit that such structure establishes divisibility, if one or more offenses in the list (but not all) are grounds for removal. See id. at 126.

We must therefore consider whether N.Y.P.L. § 263.05 is divisible, by analyzing the discrete offenses independently. If they yield different results, the statute is divisible (and the additional steps under the modified categorical approach must be undertaken); otherwise, the statute is indivisible and our inquiry is complete.

II

Since the BIA has no interpretive responsibility over a state criminal statute, we review de novo its interpretation of the New York Penal Law. See Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000). Oouch was convicted under N.Y.P.L. § 263.05, which consists of [i] a “preliminary clause,” [ii] a “general clause,” and [iii] a “parental clause”:

[i] A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof [ii] he employs, authorizes or induces a child less than seventeen years of age to engage in a sexual performance or [iii] being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.

We consider the general and parental clauses in turn.

A

As to the general clause, we consider whether the types of performances, the conduct that is criminalized, and the required mental state are all equivalent to or narrower than their corollaries in the BIA's interpretation.

A “sexual performance” under the N.Y.P.L. is one that exhibits “sexual conduct.” ⁵ See § 263.00(1). Under the federal statute, “sexual abuse” entails “sexually explicit conduct.” See 18 U.S.C. § 3509(a)(8). ⁶ Each category of “sexual conduct” under New York law is subsumed in the federal definition of “sexually explicit conduct.” ⁷ The state law therefore does not cover any performances not covered by the federal definition of “sexually explicit conduct” from the BIA's interpretation.

Similarly, the conduct that triggers liability under the general clause—employing, authorizing, or inducing ⁸—is subsumed in the broader range of prohibited actions in the federal statute.⁹ Oouch argues that the state statutory text prohibits conduct that is not specifically included in the federal statutory text: to “authorize” a sexual performance. However, the BIA has cautioned that its reference to 18 U.S.C. § 3509(a) was intended as a guide rather than a definitive standard. Rodriguez–Rodriguez, 22 I. & N. Dec. at 996. Section 3509(a) itself defines “sexual abuse” by non-exhaustive inclusion, dictating that “the term ‘sexual abuse’ includes the employment, use....” (emphasis added). Moreover, to “authorize” a child to engage in a sexual performance has the same effect as “employing” or “inducing” the child to perform because the law does not view minors as autonomous actors. A person in a position to “authorize” a child's conduct has a degree of control (other than as a parent, guardian, or legal custodian) tantamount to control by employment or inducement. It is the element of control that makes the performance more likely to occur when a defendant is offering or pimping the child as a...