Debique v. Garland

58 F.4th 676

Wayne Patrick DEBIQUE, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

No. 21-6208

August Term 2022

United States Court of Appeals, Second Circuit.

Submitted: December 13, 2022

Decided: January 27, 2023

Abadir Jama Barre, Barre Law, LLC, New York, NY, for Petitioner.

Brian Boynton, Acting Assistant Attorney General; Jennifer J. Keeney, Assistant Director, Criminal Immigration Team, Office of Immigration Litigation; Rebekah Nahas, Senior Litigation Counsel, Criminal Immigration Team, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, for Respondent.

Before: Sack, Parker, and Park, Circuit Judges.

Judge Park concurs in a separate opinion.

Per Curiam:

Petitioner Wayne Patrick Debique seeks review of a March 26, 2021 decision of the Board of Immigration Appeals ("BIA") dismissing his appeal from the October 29, 2020 order of an Immigration Judge ("IJ") finding him removable under Sections 237(a)(2)(A)(iii) and 237(a)(2)(E)(i) of the Immigration and Nationality Act ("INA"),¹ denying his application for cancellation of removal under section 240A(a)(3) of the INA,² and ordering him removed. In re Debique , No. A099-985-678 (B.I.A. Mar. 26, 2021), aff'g No. A099-985-678 (Immigr. Ct. N.Y.C. Oct. 29, 2020). In his petition for review, Debique argues that the BIA and IJ erred because Debique's New York state conviction for second-degree sexual abuse under N.Y. Penal Law § 130.60(2) is not "an aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii) or "a crime of child abuse, child neglect, or child abandonment" under 8 U.S.C. § 1227(a)(2)(E)(i). Debique also seeks cancellation of removal under 8 U.S.C. § 1229b(a).

Consistent with our decisions in Rodriguez v. Barr , 975 F.3d 188 (2d Cir. 2020) (per curiam), and Acevedo v. Barr , 943 F.3d 619 (2d Cir. 2019), we conclude that a conviction under N.Y. Penal Law § 130.60(2) is "sexual abuse of a minor." "Sexual abuse of a minor" is defined as an "aggravated felony" under the INA, and we lack jurisdiction to review "any final order of removal against an alien who is removable by reason of having committed" an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). We therefore dismiss Debique's petition in part. Second, we conclude that Debique abandoned any argument related to whether his conviction constitutes a "crime of child abuse." We therefore deny this aspect of Debique's petition.

I. BACKGROUND

A native of Trinidad and Tobago, Debique entered the United States legally as a visitor in 2001, and he became a lawful permanent resident in 2015. On October 17, 2019, Debique was convicted in New York state court of sexual abuse in the second degree under N.Y. Penal Law § 130.60(2), which makes it a crime to "subject[ ] another person to sexual contact and when such other person is ... [l]ess than fourteen years old."

On March 3, 2020, the Department of Homeland Security issued a Notice to Appear, alleging that Debique is removable under (1) 8 U.S.C. § 1227(a)(2)(E)(i) as "an alien who at any time after entry has been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment"; and (2) 8 U.S.C. § 1227(a)(2)(A)(iii) because "at any time after admission, [Debique has] been convicted of an aggravated felony as defined in Section 101(a)(43)(A) of the Act,³ a law relating to Murder, Rape OR Sexual Abuse of a Minor." Certified Administrative Record ("CAR") at 220. Debique denied both charges and sought cancellation of removal.

The IJ concluded Debique was removable as charged. First, the IJ found that Debique's conviction under N.Y. Penal Law § 130.60(2) was "sexual abuse of a minor" and thus an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii). Based on this finding, the IJ "pretermit[ted] [Debique's] application for cancellation of removal" and denied the possibility of voluntary departure given "the severity of the underlying crime." Id. at 64. Second, the IJ determined that Debique was removable under 8 U.S.C. § 1227(a)(2)(E)(i) as "an alien who has been convicted of a crime of child abuse, child neglect, or child abandonment," which "includes sexual abuse of a minor." Id. This conclusion was based on the IJ's initial finding that Debique had committed "sexual abuse of a minor."

Debique appealed to the BIA, which dismissed his appeal and affirmed the IJ's decision. First, the BIA held that N.Y. Penal Law § 130.60(2) "is categorically an aggravated felony involving sexual abuse of a minor" under 8 U.S.C. § 1227(a)(2)(A)(iii). Id. at 3. In In re Rodriguez-Rodriguez , 22 I. & N. Dec. 991 (B.I.A. 1999), the BIA "adopted the definition of ‘sexual abuse’ of a child contained in 18 U.S.C. § 3509(a), as a guide in identifying the types of crimes that we would consider to be sexual abuse of a minor." CAR at 4. In Mugalli v. Ashcroft , we afforded Chevron deference to Rodriguez-Rodriguez ’s interpretation of "sexual abuse of a minor." 258 F.3d 52, 56-60 (2d Cir. 2001). Applying these precedents, the BIA held that Debique's conviction constitutes "sexual abuse of a minor" because it falls "within the meaning of either the use of a child to engage in sexually explicit conduct or the molestation or sexual exploitation of children as contained in 18 U.S.C. § 3509(a)." CAR at 4.

Second, the BIA affirmed the IJ's conclusion that Debique's conviction under N.Y. Penal Law § 130.60(2) constitutes "a crime of child abuse" under 8 U.S.C. § 1227(a)(2)(E)(i). The BIA's definition of a "crime of child abuse" is "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, including sexual abuse or exploitation." Id. at 5 (quoting In re Velazquez-Herrera , 24 I. & N. Dec. 503, 512 (B.I.A. 2008) ). The BIA, affirming the IJ, held that this broad definition of a "crime of child abuse" includes N.Y. Penal Law § 130.60(2). The BIA therefore dismissed Debique's appeal. Debique filed a petition for review on April 4, 2021.⁴

II. DISCUSSION

When "the BIA adopts and affirms the IJ's decision, we review the two decisions in tandem. We review all questions of law, including the application of law to facts, de novo ." Ojo v. Garland , 25 F.4th 152, 159 (2d Cir. 2022) (cleaned up).

A. "Sexual Abuse of a Minor"

We lack jurisdiction to review Debique's claims under 8 U.S.C. § 1227(a)(2)(A)(iii) because his New York state conviction is "sexual abuse of a minor" and thus an "aggravated felony" under the INA.

1. Legal Standards

The INA provides that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii)" for an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). An "aggravated felony" includes "murder, rape, or sexual abuse of a minor." Id. § 1101(a)(43)(A). "This jurisdictional bar arises if: (1) the petitioner is an alien; and (2) he is deportable under one of the offenses enumerated in 8 U.S.C. § 1101(a)(43)." Mugalli , 258 F.3d at 54-55.

This Court has jurisdiction to determine whether this jurisdictional bar applies—i.e. , whether Debique's New York state conviction under N.Y. Penal Law § 130.60(2) constitutes "sexual abuse of a minor," thereby making it an "aggravated felony." See Bell v. Reno , 218 F.3d 86, 89 (2d Cir. 2000). If Debique "is in fact removable because he was convicted of an aggravated felony ..., we must dismiss his petition for lack of jurisdiction." Sui v. INS , 250 F.3d 105, 110 (2d Cir. 2001).

To determine whether a predicate offense qualifies as a removable offense under the INA, "we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA. 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 v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (cleaned up).

"When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions."

Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, we determine whether the statute is unambiguous. Id. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. At the first step, we must "employ[ ] traditional tools of statutory construction" to ascertain Congress's intent. Id. at 843 n.9, 104 S.Ct. 2778. Second, "if the statute is silent or ambiguous," we ask "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. This Court has recognized that BIA "precedential opinions interpreting the INA [may be] entitled to Chevron deference." Florez v. Holder , 779 F.3d 207, 211 (2d Cir. 2015).

2. "Sexual Abuse of a Minor" Under the INA

The INA does not define the term "sexual abuse of a minor," so in Mugalli , this Court afforded Chevron deference to the BIA's interpretation of that term. Mugalli , 258 F.3d at 60. Specifically, Mugalli deferred to the BIA's decision in Rodriguez-Rodriguez , which looked to 18 U.S.C. § 3509(a)(8) as "a useful identification of the forms of sexual abuse" under the INA. Id. at 57 (quoting 22 I. & N. Dec. at 995). Sexual abuse under 18 U.S.C. § 3509(a)(8) "includes 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." Rodriguez-Rodriguez also invoked ...