Quito v. Barr

Decision Date15 January 2020
Docket NumberDocket No. 18-996,August Term 2019
Citation948 F.3d 83
Parties Sergio QUITO Petitioner, v. William P. BARR, United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Second Circuit

Cory Forman, Cohen Forman Barone, LLP, New York, NY, for Petitioner.

Ann M. Welhaf, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Stephen J. Flynn, Assistant Director, and Lynda A. Do, Trial Attorney, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: Wesley, Livingston, and Bianco, Circuit Judges.

Joseph F. Bianco, Circuit Judge:

Petitioner Sergio Quito, a native and citizen of Ecuador, seeks review of a March 19, 2018 Board of Immigration Appeals ("BIA") decision affirming an immigration judge’s September 13, 2017 decision denying his motion to terminate removal proceedings, his applications for a waiver of inadmissibility and readjustment of status, and ordering him removed. Quito argues that his conviction, after a guilty plea, for attempted possession of a sexual performance by a child under New York Penal Law ("N.Y. Penal Law") § 263.16 is not an aggravated felony under the Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). He also asserts that the agency erred in denying his application for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). Because we conclude that Quito’s conviction under N.Y. Penal Law § 263.16 is an aggravated felony, and his remaining arguments fail to raise a colorable constitutional claim or question of law, we deny the petition for review.

BACKGROUND

Quito entered the United States without inspection in 1994 and became a lawful permanent resident in 2007. In 2012, he was convicted, after a guilty plea, of attempted possession of a sexual performance by a child in violation of N.Y. Penal Law § 263.16. Based on that conviction, the Department of Homeland Security placed Quito in removal proceedings, charging him as removable for having been convicted of an aggravated felony, or an attempt to commit an aggravated felony, relating to child pornography under the INA. 8 U.S.C. § 1101(a)(43)(I), (U).

Quito denied removability and moved to terminate the proceedings. He argued that his conviction was not an aggravated felony because § 263.16 sweeps more broadly than the relevant federal child pornography statute, 18 U.S.C. § 2252(a)(4)(B). Quito also sought discretionary relief in the form of a hardship-based waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h), and readjustment of status under INA § 245(a), 8 U.S.C. § 1255(a). To that end, Quito’s wife, daughter, and sister-in-law testified during a hearing before the immigration judge about the financial and emotional hardships they experienced during Quito’s detention.

In September 2017, an immigration judge ordered Quito removed. He concluded that Quito’s conviction under § 263.16 categorically fits within § 2252(a)(4)(B) and is thus an aggravated felony under the INA. In reaching that conclusion, the immigration judge relied in part on this Court’s decision in Weiland v. Lynch , which held that a nearly identical New York statute, N.Y. Penal Law § 263.11, is an aggravated felony under the INA. 835 F.3d 207 (2d Cir. 2016) (per curiam). As to Quito’s applications for a waiver of inadmissibility and readjustment of status, the immigration judge assumed that Quito was eligible for that relief, but denied the relief in his discretion. He found that Quito’s criminal history—which, in addition to his child pornography conviction, includes a 2001 second-degree harassment conviction stemming from an altercation with his wife and three disorderly conduct convictions in the 1990s for patronizing sex workers—outweighed the asserted hardships to his family. The immigration judge also expressed concern that Quito continued to minimize his culpability for the child pornography conviction.

The BIA affirmed the immigration judge’s decision and dismissed Quito’s appeal. It concluded that, under Weiland , Quito’s conviction for violating § 263.16 is an aggravated felony. The BIA also agreed with the immigration judge’s discretionary denial of a waiver of inadmissibility and readjustment of status, similarly reasoning that Quito’s criminal history warranted denying that relief notwithstanding the hardships to his family.

Quito timely petitioned this Court. We granted a stay of removal and denied Respondent’s motion to dismiss for lack of jurisdiction, concluding that we had jurisdiction to review whether Quito’s conviction is an aggravated felony under the INA. We further noted that Quito’s argument that § 263.16 is not an aggravated felony was colorable because Weiland did not address the argument that § 263.16 is broader than § 2252(a)(4)(B) because it does not require the prosecution to prove that the defendant knew the victim was under 18 years old.

DISCUSSION
I. Aggravated Felony Determination

Although we lack jurisdiction to review a final order of removal against a noncitizen convicted of an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review colorable constitutional claims and questions of law, id. § 1252(a)(2)(D), including whether a particular conviction constitutes an aggravated felony, Ming Lam Sui v. I.N.S. , 250 F.3d 105, 110 (2d Cir. 2001). We review de novo whether Quito’s conviction under § 263.16 is an aggravated felony. Santana-Felix v. Barr , 924 F.3d 51, 53 (2d Cir. 2019).

Under the INA, a noncitizen "who is convicted of an aggravated felony" is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). As relevant here, the INA defines "aggravated felony" to include an attempt to commit "an offense described in" 18 U.S.C. § 2252. See id. § 1101(a)(43)(I), (U). In turn, § 2252(a)(4)(B), which the parties agree is the relevant subsection here, criminalizes "knowingly possess[ing], or knowingly access[ing] with intent to view, ... any visual depiction ... of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2252(a)(4)(B).

To determine whether Quito’s conviction is "an offense described in" § 2252(a)(4)(B), we employ the "categorical approach." Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; Hylton v. Sessions , 897 F.3d 57, 60 (2d Cir. 2018). "Under this approach we look ‘not to the facts of the particular prior case,’ but instead to whether the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony."

Moncrieffe , 569 U.S. at 190, 133 S.Ct. 1678 (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). "Generic," in this context, "mean[s] the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison." Id. "Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense." Id. at 190-91, 133 S.Ct. 1678 (alterations in original) (quoting Johnson v. United States , 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ).

Quito was convicted, after a guilty plea, of violating N.Y. Penal Law § 263.16. That statute proscribes "possessing a sexual performance by a child," and states that a person is guilty of the offense "when, knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than sixteen years of age." N.Y. Penal Law § 263.16. Quito argues that § 263.16 is not a categorical match to § 2252 because the state statute is broader in two ways. First, Quito asserts that the requisite mental state under § 263.16 is less stringent than under § 2252. Second, he argues that § 263.16 does not permit an affirmative defense that is available under § 2252.

As a threshold matter, we disagree with Respondent that our decision in Weiland forecloses Quito’s arguments. In Weiland , we held that § 263.11, which is nearly identical to § 263.16, is an aggravated felony under the INA. 835 F.3d at 210. The only argument that the petitioner raised to the contrary in that case, however, was that § 263.11 is not an aggravated felony because it lacks a federal jurisdictional element. Id. The Weiland Court found that argument unpersuasive under the Supreme Court’s decision in Torres v. Lynch , ––– U.S. ––––, 136 S. Ct. 1619, 1631, 194 L.Ed.2d 737 (2016), which held that federal jurisdictional elements are properly ignored when applying the categorical approach. Id. Because the petitioner did not raise any other arguments, the Weiland Court did not address the issues presented here—namely, whether New York’s child pornography statute is not an aggravated felony because (1) its knowledge requirement is less stringent than the federal child pornography statute or because (2) it does not permit an affirmative defense that is available under the federal statute. Thus, Weiland does not control our decision here.1

For the reasons that follow, however, we conclude that § 263.16 categorically matches § 2252(a)(4)(B) and that Quito’s conviction is therefore an aggravated felony under the INA.

A. Scienter

Quito first argues that § 263.16 ’s knowledge requirement is broader than § 2252 ’s because § 263.16 does not require the government to prove that the defendant knew the age of the minor, while § 2252 does. We disagree and hold that § 263.16 ’s knowledge requirement categorically matches § 2252 ’s.

At the outset, to the extent Quito argues that § 2252 requires the government to prove that the defendant knew the specific age of the minor (e.g. , whether...

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