Debique v. Garland ( 2023 )

21-6208
Debique v. Garland
United States Court of Appeals
for the Second Circuit
August Term 2022
Submitted: December 13, 2022
Decided: January 27, 2023
No. 21-6208
WAYNE PATRICK DEBIQUE,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
Before: SACK, PARKER, and PARK, Circuit Judges.
Petitioner Wayne Patrick Debique seeks review of a decision of
the Board of Immigration Appeals (“BIA”) dismissing his appeal
from an order of an Immigration Judge (“IJ”) finding him removable
under the Immigration and Nationality Act (“INA”). The IJ and BIA
concluded that Debique is removable because his prior conviction for
sexual abuse in the second degree under N.Y. Penal Law § 130.60(2)
is both (1) “sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A), which
is an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii); and (2)
“a crime of child abuse, child neglect, or child abandonment” under
8 U.S.C. § 1227(a)(2)(E)(i).
We dismiss Debique’s petition in part and deny it in part.
First, a conviction under N.Y. Penal Law § 130.60(2) constitutes
“sexual abuse of a minor.” See Rodriguez v. Barr, 975 F.3d 188 (2d Cir.
2020) (per curiam); Acevedo v. Barr, 943 F.3d 619 (2d Cir. 2019).
“Sexual abuse of a minor” is defined as an “aggravated felony” under
the INA, and we lack jurisdiction to review a final order of removal
against an alien who committed an “aggravated felony.” See 8
U.S.C. § 1252(a)(2)(C). We therefore dismiss Debique’s petition in
part. Second, Debique has abandoned any arguments as to whether
N.Y. Penal Law § 130.60(2) constitutes a “crime of child abuse,” so we
decline to reach the issue and deny this aspect of the petition.
Debique’s petition is thus DISMISSED in part and DENIED in part.
Judge Park concurs in a separate opinion.
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.
2
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.
1 In subsequent references to these INA provisions, we cite the
analogous sections of the U.S. Code: 8 U.S.C. § 1227(a)(2)(A)(iii) and 8
U.S.C. § 1227(a)(2)(E)(i), respectively.
2 In subsequent references to this INA provision, we cite the
analogous section of the U.S. Code: 8 U.S.C. § 1229b(a).
3
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
3 In subsequent references to this INA provision, we cite the
analogous section of the U.S. Code: 8 U.S.C. § 1101(a)(43)(A).
4
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,
5
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
4 On November 1, 2022, this Court denied Debique’s motion to stay
his removal pending appeal.
6
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 (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 (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. At the first step, we
must “employ[] traditional tools of statutory construction” to
ascertain Congress’s intent. Id. at 843 n.9. Second, “if the statute is
7
silent or ambiguous,” we ask “whether the agency’s answer is based
on a permissible construction of the statute.” Id. at 843. 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 Black’s Law Dictionary, which
defines “sexual abuse” as “[i]llegal sex acts performed against a minor
by a parent, guardian, relative, or acquaintance.” 22 I. & N. Dec. at
996 (quoting Sexual Abuse, Black’s Law Dictionary 1375 (6th ed. 1990)).
As noted in Mugalli, Rodriguez-Rodriguez treated 18 U.S.C. § 3509 as “a
guide,” not “a definitive standard or definition.” Mugalli, 258 F.3d
at 58 (quoting Rodriguez-Rodriguez, 22 I. & N. Dec. at 996).
More recently, the Supreme Court held that “in the context of
statutory rape offenses focused solely on the age of the participants,”
“sexual abuse of a minor” under the INA is unambiguous. Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562, 1572-73 (2017). The Court
8
declined to afford the BIA Chevron deference and instead interpreted
“sexual abuse of a minor” “using the normal tools of statutory
interpretation.” Id. at 1569, 1572. But the Court suggested its
holding was confined to “the context of statutory rape offenses
focused solely on the age of the participants,” “leav[ing] for another
day” the interpretation of the “generic offense” of “sexual abuse of a
minor.” Id. at 1572. After Esquivel-Quintana, we reaffirmed “our
decision in Mugalli to grant deference to the BIA in its use of 18 U.S.C.
§ 3509(a)(8) in identifying which crimes serve as [sexual abuse of a
minor] under the INA.” Acevedo, 943 F.3d at 623. Per our
“longstanding rule,” we are bound by Mugalli and Acevedo. In re
Guo, 965 F.3d 96, 105 (2d Cir. 2020) (citation omitted).
3. N.Y. Penal Law § 130.60(2)
We conclude that N.Y. Penal Law § 130.60(2) constitutes the
“aggravated felony” of “sexual abuse of a minor” under 8 U.S.C.
§§ 1227(a)(2)(A)(iii), 1101(a)(43)(A). Under § 130.60(2), “[a] person is
guilty of sexual abuse in the second degree when he or she subjects
another person to sexual contact and when such other person
is . . . [l]ess than fourteen years old.” 5 N.Y. Penal Law § 130.60.
5 In some cases, we apply the “modified categorical approach,”
which allows “for limited review of the record” through a two-step process:
(1) “we determine if the statute is ‘divisible,’ such that some categories of
proscribed conduct render an alien removable and some do not,” and then
(2) “we consult the record of conviction to ascertain the category of conduct
of which the alien was convicted.” Lanferman v. BIA, 576 F.3d 84, 88-89 (2d
Cir. 2009) (per curiam) (cleaned up). Under the modified categorical
approach, review of the record is limited to “inquiry into the fact of
conviction of a specific offense but prohibits reference to or examination of
the particular factual circumstances underlying that conviction.” Dickson v.
9
Although we have not squarely held that a conviction under
N.Y. Penal Law § 130.60(2) is “sexual abuse of a minor,” we recently
held that a substantively identical provision is. See Rodriguez v. Barr,
975 F.3d 188, 194 (2d Cir. 2020) (per curiam) (holding that a conviction
under N.Y. Penal Law § 130.65(3) constitutes “sexual abuse of a
minor”). Compare N.Y. Penal Law § 130.65(3) (“A person is guilty of
sexual abuse in the first degree when he or she subjects another person
to sexual contact . . . [w]hen the other person is less than eleven years
old[.]” (emphases added)), with N.Y. Penal Law § 130.60(2) (“A
person is guilty of sexual abuse in the second degree when he or she
subjects another person to sexual contact and when such other person
is . . . [l]ess than fourteen years old.” (emphases added)).
Following Rodriguez, it is clear that Debique’s conviction under
N.Y. Penal Law § 130.60(2) is “sexual abuse of a minor” under the
INA. Both statutes use the same definition of sexual contact, and we
Ashcroft, 346 F.3d 44, 52 (2d Cir. 2003).
A statute is divisible if it “list[s] elements in the alternative, and
thereby define[s] multiple crimes.” Mathis v. United States, 579 U.S. 500,
505 (2016); see also United States v. Moore, 916 F.3d 231, 238 (2d Cir. 2019)
(noting that a statute is divisible if it “delineates two methods of committing
[a single] crime”). N.Y. Penal Law § 130.60 is a divisible statute because it
states that “[a] person is guilty of sexual abuse in the second degree“ if “he
or she subjects another person to sexual contact“ and that other person is
either (1) “[i]ncapable of consent by reason of some factor other than being
less than seventeen years old,” or (2) “[l]ess than fourteen years old.” N.Y.
Penal Law § 130.60. Applying the modified categorical approach, we may
review the information charging Debique, which alleged that Debique
“subject[ed] a child . . . who was less than fourteen years old, to sexual
contact by touching her buttocks and placing his hand under her shirt on
her bare skin and reaching towards her chest.” CAR at 196.
10
have held that this definition of “sexual contact” is a categorical match
to the generic federal offense, see Rodriguez, 975 F.3d at 195. The only
difference between this case and Rodriguez is the element concerning
the victim’s age: N.Y. Penal Law § 130.65(3) requires the victim to be
under eleven years old, while § 130.60(2) requires the victim to be
under fourteen years old. For present purposes, this distinction
makes no difference. Debique points to no evidence that the generic
federal definition of “sexual abuse of a minor” would somehow
categorically exclude offenses committed against victims between the
ages of eleven and fourteen.
To the contrary, various authorities imply that the generic
federal definition of “sexual abuse of a minor” applies to crimes
committed against “a minor” who is under fourteen years old. First,
in Esquivel-Quintana, the Supreme Court held that under “the generic
federal definition of sexual abuse of a minor” and “in the context of
statutory rape offenses that criminalize sexual intercourse based
solely on the ages of the participants,” the age of the victim must be
“younger than 16.” 137 S. Ct. at 1568. Second, the BIA has
extended the reasoning of Rodriguez-Rodriguez—the BIA decision to
which we deferred in Mugalli and Acevedo—to hold that under the
generic federal definition of “sexual abuse of a minor,” “[a] victim of
sexual abuse is a ‘minor’ . . . if he or she is under 18 years of age.” In
re V-F-D, 23 I. & N. Dec. 859, 862 (B.I.A. 2006). Third, at the time the
INA was amended in 1996 to expand the definition of an “aggravated
felony,” the term “minor” was likely understood to refer to
individuals under the age of eighteen. See Minor, Black’s Law
Dictionary 997 (6th ed. 1990) (“In most states, a person is no longer a
minor after reaching the age of 18 . . . .”); In re V-F-D, 23 I. & N. Dec.
at 862 (“We find that the broader age limitation in 18 U.S.C.
11
§ 3509(a)(2) [of age eighteen and under] best reflects the diverse State
laws that punish sexually abusive behavior toward children, the
common usage of the word ‘minor,’ and the intent of Congress in
expanding the definition of an aggravated felony to protect
children.”). Finally, the BIA in 2002 agreed that a conviction under
N.Y. Penal Law § 130.60 is “sexual abuse of a minor” under the INA.
In re Small, 23 I. & N. Dec. 448, 449 (B.I.A. 2002). So the requirement
under N.Y. Penal Law § 130.60(2) that the victim be “less than
fourteen years old” does not sweep more broadly than the generic
federal definition of “sexual abuse of a minor.” 6 Applying the
reasoning of Rodriguez to the otherwise identical language of
Debique’s statute of conviction, we conclude that a conviction under
N.Y. Penal Law § 130.60(2) is a categorical match for “sexual abuse of
a minor” under 8 U.S.C. § 1101(a)(43)(A) and therefore an
“aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii).
Debique’s arguments to the contrary are unavailing. First,
Debique erroneously claims that his case is different from Rodriguez
because his statute of conviction is labeled as a misdemeanor, not a
felony. But the Supreme Court foreclosed a similar argument in
Taylor v. United States, observing that “th[e] categorical approach[]
extend[s] the range of predicate offenses to all crimes having certain
6 We do not decide whether the generic federal definition of “sexual
abuse of a minor” requires a minimum age differential or particular
relationship between the perpetrator and victim. Cf. Esquivel-Quintana,
137 S. Ct. at 1572 (“We leave for another day whether the generic offense
requires a particular age differential between the victim and the
perpetrator, and whether the generic offense encompasses sexual
intercourse involving victims over the age of 16 that is abusive because of
the nature of the relationship between the participants.”).
12
common characteristics . . . regardless of how they were labeled by
state law.” 495 U.S. 575, 589 (1990) (emphasis added). Debique’s
“labeling” argument makes little sense under the logic of the
categorical approach, which adopts a uniform, elements-driven
method of interpretation to account for “the wide variation among
states and localities in the ways that offenses are labeled.” Id. at 582(quoting S. Rep. No. 98-190, at 20 (1983)).
Second, our holding in Rodriguez defeats Debique’s argument
that James v. Mukasey, 522 F.3d 250 (2d Cir. 2008), implies N.Y. Penal
Law § 130.60(2) is broader than the generic federal definition of
“sexual abuse of a minor.” In James, we observed that “under New
York law, a kiss on the mouth constitutes ‘sexual contact’” under N.Y.
Penal Law § 130, and “[t]his definition is broader than that of the
federal statute from which the BIA has drawn guidance”—i.e., 18
U.S.C. § 3509. James, 522 F.3d at 258. But the Rodriguez Court later
rejected this “passing” dicta in James given that (1) “the New York
law’s reference to ‘intimate’ body parts does not necessarily make the
New York statute’s definition of sexual contact broader than that
provided in the INA,” and (2) the “open-ended nature of the conduct
covered by INA § 101(a)(43)(A).” Rodriguez, 975 F.3d at 193-94.
Debique’s conviction for second-degree sexual abuse under
New York law is thus a categorical match for “sexual abuse of a
minor,” an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii).
We dismiss this part of Debique’s petition for lack of jurisdiction. 7
See 8 U.S.C. § 1252(a)(2)(C).
7 Debique requests that this Court cancel his removal under 8 U.S.C.
§ 1229b(a). But as the government correctly points out, “[t]he Attorney
13
B. “A Crime of Child Abuse”
Debique has abandoned any argument that his conviction
under N.Y. Penal Law § 130.60(2) is not “a crime of child abuse”
under 8 U.S.C. § 1227(a)(2)(E)(i). Although 8 U.S.C. § 1252(a)(2)(C)
deprives this Court of jurisdiction to review final orders of removal
for “an alien who is removable by reason of having committed” one
of several enumerated offenses, a “crime of child abuse” under 8
U.S.C. § 1227(a)(2)(E)(i) is not such an offense. We therefore retain
jurisdiction to “review . . . questions of law,” 8 U.S.C. § 1252(a)(2)(D),
including whether Debique’s conviction under N.Y. Penal Law
§ 130.60(2) is a “crime of child abuse, child neglect, or child
abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i). We decline,
however, to exercise jurisdiction here.
Under Federal Rule of Appellate Procedure 28(a)(8)(A), “the
argument” in an appellant’s brief must contain “appellant's
contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies.” “We consider
abandoned any claims not adequately presented in an appellant’s
brief,” and an appellant’s failure to make “legal or factual arguments”
constitutes abandonment. Schwapp v. Town of Avon, 118 F.3d 106, 112
(2d Cir. 1997). Under “the party-presentation rule,” we “‘normally
decide only questions presented by the parties’ and may play only ‘a
modest initiating role’ in shaping the arguments before” us. United
General may cancel removal in the case of an alien who is inadmissible or
deportable from the United States” only “if the alien . . . has not been
convicted of any aggravated felony.” Id. § 1229b(a)(3). Debique’s New
York state conviction constitutes an “aggravated felony” under 8 U.S.C.
§ 1227(a)(2)(A)(iii), so he is ineligible for cancellation of removal.
14
States v. Graham, 51 F.4th 67, 80 (2d Cir. 2022) (quoting United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)). An “abandoned claim[]
thus sounds in the party-presentation rule.” Id. (cleaned up).
Debique fails to argue that his New York state conviction does
not constitute a ground for removal under 8 U.S.C. § 1227(a)(2)(E)(i).
He claims only that § 1227(a)(2)(E)(i) “is overbroad,” Petr. Br. at 8, and
cites In re Velazquez-Herrera, 24 I. & N. Dec. at 511-12, and Guzman v.
Holder, 340 F. App’x 679 (2d Cir. 2009) (summary order), for support.
The entirety of Debique’s point is that although the phrase “crime of
child abuse” under the INA has been interpreted broadly, that “does
not mean that its breadth is infinite.” Petr. Br. at 9. Debique,
however, makes no “legal or factual arguments” as to 8 U.S.C.
§ 1227(a)(2)(E)(i)’s application to his statute of conviction, nor does he
explain why the BIA and IJ erred in their application of the categorical
approach in his case. Schwapp, 118 F.3d at 112.
Debique’s statement that the breadth of 8 U.S.C.
§ 1227(a)(2)(E)(i) is not infinite “does not constitute compliance with
[FRAP] 28(a): an appellant . . . must state the issue and advance an
argument.” Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009) (citation
omitted). Debique fails to do so and has thus abandoned any
arguments as to 8 U.S.C. § 1227(a)(2)(E)(i). We therefore decline to
reach this issue, especially given that Debique is independently
removable under 8 U.S.C. § 1227(a)(2)(A)(iii). See INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and
agencies are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”). This part of
Debique’s petition is denied.
15
III. CONCLUSION
For the foregoing reasons, Debique’s petition for review is
DISMISSED as to his 8 U.S.C. § 1227(a)(2)(A)(iii) claim and DENIED
as to his 8 U.S.C. § 1227(a)(2)(E)(i) claim.
16
21-6208
Debique v. Garland
PARK, Circuit Judge, concurring in the judgment:
I concur in today’s opinion because we are bound by our own
precedent, even when it is dubious. In Acevedo v. Barr, 943 F.3d 619(2d Cir. 2019), we granted Chevron deference to the BIA’s
interpretation of “sexual abuse of a minor” despite the Supreme
Court holding just two years earlier in Esquivel-Quintana v. Sessions,
137 S. Ct. 1562 (2017), that “sexual abuse of a minor” in another
context was unambiguous. I write separately to explain my view
that Acevedo erred in deferring to the BIA in light of the Supreme
Court’s decision in Esquivel-Quintana.
In the classic formulation, at Chevron Step One we ask “whether
Congress has directly spoken to the precise question at issue. If the
intent of Congress is clear, that is the end of the matter.” Chevron,
U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). We
“employ[] traditional tools of statutory construction” to “ascertain[]
that Congress had an intention on the precise question at issue.” Id.at 843 n.9. If “the statute is silent or ambiguous with respect to the
specific issue,” then Step Two asks “whether the agency’s answer is
based on a permissible construction of the statute.” Id. at 843.
In recent years, the Supreme Court has warned against too
readily deferring to the agencies and has emphasized that Step One’s
command to employ the “traditional tools of statutory construction”
means what it says. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
1630 (2018) (declining to afford Chevron deference because “the canon
against reading conflicts into statutes is a traditional tool of statutory
construction and it, along with the other traditional canons . . . is
more than up to the job of solving today’s interpretive puzzle” and
where “the canons supply an answer, Chevron leaves the stage”
(cleaned up)); Pereira v. Sessions, 138 S. Ct. 2105, 2113-14, 2116 (2018)
(declining to “resort to Chevron deference” and “to inject ambiguity
into the statute” when “[t]he statutory text alone is enough” to
conclude “Congress has supplied a clear and unambiguous answer to
the interpretive question at hand”).
In Esquivel Quintana, the Court applied this analytical rigor,
rather than deferring to the BIA, to interpret “sexual abuse of a
minor”—the same phrase at issue here. The Court first noted that
“Section 1101(a)(43)(A) does not expressly define sexual abuse of a
minor.” Esquivel-Quintana, 137 S. Ct. at 1569. But this statutory
omission did not automatically imply ambiguity and agency
deference. Instead, the Court proceeded to “interpret that phrase
using the normal tools of statutory interpretation,” including
dictionary definitions, the structure of the INA, a related federal
statute, and evidence from state criminal codes. Id. at 1569-72.
But two years after the Supreme Court in Esquivel-Quintana
found “sexual abuse of a minor” to be unambiguous, our Court in
Acevedo decided the same phrase was ambiguous. See Acevedo, 943
F.3d at 623. Acevedo noted in three brief sentences that “‘sexual
abuse of a minor’ is not defined by the INA”; “[t]he INA also does not
incorporate by reference any definition in the criminal code”; and the
INA’s legislative history is “similarly unhelpful.” Id. Acevedo
simply reaffirmed our decision in Mugalli v. Ashcroft, 258 F.3d 52 (2d
Cir. 2001), to defer to the BIA because Esquivel-Quintana “did not
foreclose” the BIA’s interpretation of “sexual abuse of a minor” “in
other instances.” Acevedo, 943 F.3d at 623.
In my view, this quick resort to statutory ambiguity and agency
deference was inconsistent with Esquivel-Quintana specifically and
2
with the Supreme Court’s teaching on Chevron generally. Although
likely harmless to the outcome of this case, this type of interpretive
shortcut raises separation-of-powers concerns. Chevron Step One
must have teeth to ensure that courts do not reflexively defer on
matters of interpretation to the Executive. The Constitution
exclusively vests the “judicial Power of the United States” in the
federal judiciary, U.S. Const. art. III, § 1, and it is the “duty of the
judicial department to say what the law is.” Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177 (1803). Uncritical deference to an executive
agency “tell[s] those who come before us” asking “what the law is” to
“go ask a bureaucrat” instead. Buffington v. McDonough, 143 S. Ct.
14, 18-19 (2022) (mem.) (Gorsuch, J., dissenting from the denial of
certiorari). So Chevron Step One is at bottom a separation-of-powers
decision. If a statute is unambiguous, then the courts retain
interpretive control, but if it is deemed ambiguous, then executive
agencies take the helm (as long as their construction is “reasonable”).
Our job in this case is to interpret the phrase “sexual abuse of a
minor,” a task that we as “[j]udges are trained to do” and that “can be
done in a neutral and impartial manner.” Brett M. Kavanaugh,
Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2154 (2016)
(reviewing Robert A. Katzmann, Judging Statutes (2014)). 1 We
should do our job.
In short, we decided Mugalli during an era of almost-reflexive
Chevron deference. But in recent years, the Supreme Court has taken
1 Chevron deference may be more suitable when a court is asked to
interpret “broad and open-ended terms like ‘reasonable,’ ‘appropriate,’
‘feasible,’ or ‘practicable’” that may benefit from an executive agency’s
technical expertise. Kavanaugh, supra, at 2153.
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a more rigorous approach, as in Esquivel-Quintana. Our Court in
Acevedo found statutory ambiguity without employing the
“traditional tools of statutory construction.” 2 This not only runs
afoul of Supreme Court guidance, but it also risks offending
separation of powers. For today, our Court is bound to follow
Acevedo, so I join its opinion in full.
2 Other courts of appeals have similarly understood Esquivel-
Quintana to require a more searching analysis at Chevron Step One. See,
e.g., Cabeda v. Att’y Gen. of the U.S., 971 F.3d 165, 185-86, 188 (3d Cir. 2020)
(Krause, J., concurring in part) (criticizing circuit precedent for “wav[ing]
the white flag of ambiguity far too readily, and without performing the
rigorous analysis Esquivel-Quintana demands” such as “vigorous textual
and contextual statutory analysis tailored to the precise interpretive
question presented”); Diaz-Rodriguez v. Garland, 12 F.4th 1126, 1132 (9th Cir.
2021) (noting that Esquivel-Quintana is “highly instructive” because “[a]fter
observing that Congress had not defined the term ‘sexual abuse of a minor,’
the Court did not throw up its hands and declare the statute ambiguous”
but “instead relied on the normal tools of statutory interpretation” (cleaned
up)), vacated on other grounds, No. 13-73719, 2022 WL 17493613 (9th Cir. Dec.
8, 2022) (en banc); Bastias v. U.S. Att’y Gen., 42 F.4th 1266, 1277 (11th Cir.
2022) (Newsom, J., concurring) (“[T]he Supreme Court has taken pains to
clarify that Chevron step one has teeth: We judges must actually do the hard
work of statutory interpretation; we can’t just skip ahead to step two.”). It
appears that five circuits reject the notion that the BIA’s interpretation of
“sexual abuse of a minor” in Rodriguez-Rodriguez is entitled to deference.
Cabeda, 971 F.3d at 195-97 (Krause, J., concurring in part) (collecting cases).
By my count, at least the Second, Third, and Seventh Circuits continue to
defer to the BIA’s interpretation of “sexual abuse of a minor” after Esquivel-
Quintana. See, e.g., Acevedo, 943 F.3d at 623; Cabeda, 971 F.3d at 171
(majority opinion); Correa-Diaz v. Sessions, 881 F.3d 523, 527-28 (7th Cir.
2018).
4