Nunez v. Attorney Gen. of the U.S.

35 F.4th 134

Antonio DeJesus NUNEZ, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America

No. 20-2651

United States Court of Appeals, Third Circuit.

Argued April 21, 2021

Opinion Filed: May 26, 2022

Thomas E. Moseley (Argued), One Gateway Center, Suite 2600, Newark, NJ 07102, Counsel for Petitioner

Jeffrey Bossert Clark, John W. Blakely, Elizabeth Fitzgerald-Sambou (Argued), Office of Immigration Litigation, U.S. Department of Justice, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Appellee

Before: AMBRO, RESTREPO, Circuit Judges, and NOREIKA,^* District Judge

OPINION OF THE COURT

NOREIKA, District Judge

Petitioner Antonio DeJesus Nunez seeks review of a final order by the Board of Immigration Appeals dismissing his appeal from an Immigration Judge's determination that he is removable from the United States and ineligible for cancellation of removal. For the following reasons, the petition will be denied.

I. Background

Nunez is a fifty-two-year-old native and citizen of the Dominican Republic who, since February 2010, has been a lawful permanent resident of the United States. In March 2019, he was charged in the Superior Court of New Jersey with four crimes.¹ According to the charging documents, between January 1, 2013 and December 3, 2018, Nunez used physical force or coercion to "grab the victim's breast over the clothing for means of sexual gratification," "expos[ed] his bare penis to the victim while in the bathroom of the victim's residence," and engaged in "sexual conduct which impaired or debauched the morals of the victim." A.R. 566–67. Nunez was between forty-three and forty-nine years old during this time and the victim was between eight and fourteen years old.

In May 2019, Nunez pled guilty to and was convicted of one count of endangering the welfare of a child in the third degree, in violation of N.J. Stat. § 2C:24-4(a)(1). That statute prohibits "engag[ing] in sexual conduct which would impair or debauch the morals of [a] child." N.J. Stat. § 2C:24-4(a)(1). He was sentenced to time served of 168 days of imprisonment.

A. Proceedings Before the Immigration Court

The Department of Homeland Security ("DHS") initiated removal proceedings against Nunez on September 23, 2019 by filing a Notice to Appear ("NTA") with the Immigration Court. The NTA charged Nunez with removability under 8 U.S.C. § 1227(a)(2)(E)(i), which provides in relevant part that "[a]ny alien who at any time after admission is convicted of ... a crime of child abuse ... is deportable."² 8 U.S.C. § 1227(a)(2)(E)(i). Factual allegation four of the NTA indicated that, on May 20, 2019, Nunez had been "convicted in the Superior Court of New Jersey, Middlesex County, for the offense of Endangering-Sexual Conduct With Child By Non-Caretaker, committed on or between January 1, 2013 and December 3, 2018 in violation of N.J.S.A. 2C:24-4a(1)." A.R. 727.

In a hearing on October 3, 2019, Nunez appeared represented by counsel and admitted the factual allegations in the NTA but denied removability. He then filed a motion to terminate removal, arguing that, pursuant to this Court's ruling in Liao v. Att'y Gen. , 910 F.3d 714 (3d Cir. 2018), the state offense of endangering the welfare of a child did not constitute a crime of child abuse within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i) because the state offense does not criminalize "conduct that poses a particular likelihood of harm to the child." Liao , 910 F.3d at 721. In a written decision, the Immigration Judge ("IJ") held that a violation of N.J. Stat. § 2C:24-4(a)(1) is categorically a crime of child abuse because, under New Jersey state law, a conviction requires proof that the "defendant knowingly engaged in sexual conduct with the victim, which would impair or debauch the morals of a child." A.R. 63 (citing New Jersey Model Jury Instructions, Endangering the Welfare of a Child, Sexual Conduct (Third Degree), N.J. STAT. ANN. § 2C:24-4(a)(1) (Apr. 7, 2014)). The IJ reasoned that "[t]he use of the term ‘would’ indicates that the conduct must rise above ‘conduct that creates only the bare potential for non-serious harm.’ " A.R. 66 (quoting Liao , 910 F.3d at 720 ). Therefore, the IJ sustained the charge of removability.

Nunez then moved for cancellation of removal under 8 U.S.C. § 1229b(a), which requires proof that the applicant "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a). The Government moved to pretermit the application for cancellation of removal due to the "stop-time" rule, which provides that the accrual of continuous residence stops upon the commission of certain offenses. 8 U.S.C. § 1229b(a)(2), (d)(1)(B). The Government argued that Nunez failed to accrue the necessary seven years of continuous residence because he was admitted to the United States on February 14, 2010 and convicted of a count which provided that he engaged in the criminal conduct "between about January 1, 2013 and December 3, 2018." A.R. 154. Nunez's counsel moved for a continuance, explaining that he had received the motion to pretermit only three days before the hearing, that he needed time to review a possible psychological evaluation of Nunez, and that his preparation for the hearing was impaired because his wife had died suddenly two months prior and his associate attorney had been recently absent. He also noted that the Government had initially suggested that Nunez would be eligible for cancellation of removal. The IJ denied the request for a continuance, finding that the matter did not require further briefing and could be decided based on the evidence already in the record. The IJ also noted that Nunez's counsel had been aware of the potential impact of the conviction and that the Government had indicated it would further review the question of Nunez's eligibility for cancellation and had not waived such an argument.

At the February 21, 2020 hearing on the Government's motion to pretermit, Nunez testified about the timing of the conduct underlying his conviction. He stated that the conduct involved in the offense was "sending a video" and that he was "not in [his] five senses" and was "drunk" at the time, but that it occurred in October of 2018. A.R. 140. On cross-examination, the Government asked Nunez if the count to which he pled guilty referenced "a range of dates from 2013 to 2018," to which he responded "I don't remember. I just remember the one related to the video." A.R. 140–41. The IJ concluded that Nunez's testimony was self-serving and contradicted his prior admission that the acts in the state court matter had occurred. Therefore, although the IJ did not enter an adverse credibility finding, he declined to enter a finding that Nunez's testimony was credible. The IJ then found that Nunez's conviction was for a continuing offense which began on January 1, 2013 as indicated in allegation four of the NTA, and agreed with the Government that the stop-time rule was triggered on that date. Incorporating by reference the earlier decision that the state conviction was a crime of child abuse, the IJ concluded that Nunez was removable and ineligible for cancellation of removal.

B. Proceedings Before the Board of Immigration Appeals

Nunez appealed to the Board of Immigration Appeals in March 2020, once again arguing that the state court offense was not a crime of child abuse under Liao. He further argued that the IJ erred in denying the requested continuance and in finding that the state offense was committed prior to the accrual of seven years of continuous residence. The Board upheld the IJ's decision in a single member non-precedential decision. This petition for review followed.

II. Discussion³

Where the Board issues its own decision and relies upon the reasoning of an immigration judge, this Court reviews the decision of the Board and those portions of the immigration judge's reasoning adopted in the Board's opinion. See Patel v. Att'y Gen. , 599 F.3d 295, 297 (3d Cir. 2010).

In his appeal before this Court, Nunez again raises the two issues argued before the Board: first, that his state offense is not a "crime of child abuse" because it lacks the required particular likelihood of harm to a child; and, second, that the Board erred in sustaining pretermission of his motion for cancellation of removal because there was insufficient evidence that he committed the crime before accruing the necessary seven years of continuous residence. We address each of these issues in turn.

A. Removability

It is well-established that the criminal statute at issue must require a "particular likelihood" of harm to the child in order to constitute child abuse under 8 U.S.C. § 1227(a)(2)(E)(i). Liao , 910 F.3d at 721. Nunez argues, as he did below, that the New Jersey statute under which he was convicted does not require any particular likelihood of harm and therefore that his conviction cannot sustain the charge of removability. In response, the Government contends that both the plain language of the statute and controlling New Jersey case law show that a conviction requires proof that harm to a child is likely.

Typically, legal determinations by the Board are reviewed de novo , subject to principles of Chevron deference. Liao , 910 F.3d at 718 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). In an appeal from an unpublished, non-precedential decision by a single Board member, however, "we defer to the BIA's legal determinations only insofar as they have the power to persuade." Id.

When deciding whether a state conviction qualifies as a basis for removal under the Immigration and Nationality Act ("INA"), this Court "employ[s] a ‘categorical approach’ to determine whether the state offense is comparable to an...