Quito v. Barr ( 2020 )

18‐996
Quito v. Barr
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2019
(Argued: November 12, 2019 Decided: January 15, 2020)
Docket No. 18‐996
_____________________________________
SERGIO QUITO
Petitioner,
— v. —
WILLIAM P. BARR, United States Attorney General,
Respondent.
_____________________________________
Before: WESLEY, LIVINGSTON, and BIANCO, Circuit Judges.
Petitioner Sergio Quito, a native and citizen of Ecuador, seeks review of a
March 19, 2018 Board of Immigration Appeals 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. Petitioner argues that his conviction for
attempted possession of a sexual performance by a child is not an aggravated
felony and that the agency committed legal and factual errors in denying his
application for a waiver of inadmissibility. Because we conclude that petitioner’s
conviction 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.
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.
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
2
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).
3
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
4
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.
5
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
6
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 (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,
7
569 U.S. at 190 (quoting Gonzales v. Duenas‐Alvarez, 549 U.S. 183, 186 (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 (alterations in original) (quoting Johnson v. United
States, 559 U.S. 133, 137 (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
8
§ 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, 136 S. Ct. 1619, 1631 (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
9
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.
1Similarly, although we stated in a footnote in Oouch v. Department of Homeland Security, 633 F.3d
119, 120 n.1 (2d Cir. 2011) that the petitioner’s conviction under § 263.16 for possessing a sexual
performance by a child “could have been a ground for removability under 8 U.S.C.
§ 1101(a)(43)(I),” that brief statement was dictum that does not control here.
10
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 the
minor was 13 or 15 years of age), we disagree. In relevant part, § 2252 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). In United States v. X‐Citement Video, Inc., the Supreme Court held
that “the term ‘knowingly’ in § 2252 extends both to the sexually explicit nature of
the material and to the age of the performers.” 513 U.S. 64, 78 (1994). Quito
appears to urge a literal reading of “the age of the performers,” but, read in its
entirety, X‐Citement Video makes clear that the government must prove that the
defendant knew that the performance involved a minor, not that the defendant
knew the specific age of that minor. See, e.g., id. at 66, 68 (describing knowledge
requirement under § 2252 as “know[ing] that one of the performers was a minor”
and “‘knowing[]’ . . . the minority of the performers”). Moreover, circuit courts
have consistently interpreted X‐Citement Video to require knowledge only that the
11
visual depiction involved a minor. See, e.g., United States v. Haymond, 672 F.3d 948,
957 (10th Cir. 2012) (“[T]o convict [the defendant], the government was required
to prove he knew that the specific images he was convicted of possessing depicted
minors engaged in sexually explicit conduct.”); United States v. Szymanski, 631 F.3d
794, 799 (6th Cir. 2011) (concluding that defendant “must have known, not just
that he was receiving something, but that what he was receiving was child
pornography”); United States v. Myers, 355 F.3d 1040, 1042 (7th Cir. 2004) (“The
Supreme Court has held that . . . § 2252(a)(2) includes a scienter requirement, and
therefore encompasses only situations in which the defendant knows that the
material he is receiving depicts minors engaged in sexually explicit conduct.”);
United States v. Matthews, 209 F.3d 338, 351 (4th Cir. 2000) (interpreting X‐Citement
Video to extend “knowledge requirement to . . . the sexually explicit nature of the
materials as well as to the involvement of minors in the materials’ production”).
We likewise interpret § 2252 and X‐Citement Video to require that the defendant
12
know the material he or she possesses is child pornography—meaning it involves
a minor—but not that the defendant know the age of the minor.
Therefore, the relevant question here is whether § 263.16 also requires the
government to prove that the defendant knew that the material he or she
possessed involved a minor. We hold that it does. It is well‐settled that criminal
liability relating to child pornography “may not be imposed without some element
of scienter on the part of the defendant,” New York v. Ferber, 458 U.S. 747,
765 (1982), and that “the presumption in favor of a scienter requirement should
apply to each of the statutory elements that criminalize otherwise innocent
conduct,” X‐Citement Video, 513 U.S. at 72; see also Staples v. United States, 511 U.S.
600, 614‐15 (1994) (rejecting “construction of the statute [that] potentially would
impose criminal sanctions on a class of persons whose mental state . . . makes their
actions entirely innocent”). As the Supreme Court explained in X‐Citement Video,
“the age of minority” in a child pornography offense is such an element “because
nonobscene, sexually explicit materials involving persons over the age of
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[minority] are protected by the First Amendment.” 513 U.S. at 72 (collecting
Supreme Court decisions). In other words, because “one would reasonably expect
to be free from regulation when trafficking in sexually explicit, though not
obscene, materials involving adults . . . the age of the performers is the crucial
element separating legal innocence from wrongful conduct.” Id. at 73.
Although the New York Court of Appeals has not specifically addressed the
knowledge that a defendant must have about the age of the depicted individuals
to be guilty under § 263.16, New York’s intermediate appellate courts have
consistently indicated that the defendant must know that he or she possesses child
pornography. In People v. Henry, for example, the Third Department stated that,
to be guilty of violating § 263.16, “the defendant must be aware that he or she is in
possession of a sexual performance by a child.” 166 A.D.3d 1289, 1290 (3d Dep’t
2018). Similarly, in People v. Yedinak, the Third Department explained that “while
[§ 263.16] requires proof that the defendant knew of the character and content of
the performance, it also specifically requires that the defendant knowingly had the
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sexual performance by a child in his or her possession or control.” 157 A.D.3d
1052, 1053 (3d Dep’t 2018). That court then held that evidence that the defendant
“intentionally used two search terms that are commonly associated with files that
contain child pornography, that [the] defendant admitted there may be child
pornography found in his [computer] and that the file names of the files
downloaded . . . from defendant’s IP address contained explicit descriptions of the
content” was “legally sufficient to support the element of knowledge regarding
the content and character of the files for which defendant was convicted of
possessing.” Id. at 1054. Most recently, in People v. Urtz, the Third Department
held that the defendant’s “statements that he had, in fact, saved pornographic
videos involving children,” as well as his testimony that he “had recently changed
his display name—‘I like em’ younger’—to omit ‘18 plus,’” supported the jury’s
finding that the defendant “knew of the character and content of the videos and
image[] and knowingly possessed [and accessed] them.” 176 A.D.3d 1485, 1489‐
90 (3d Dep’t 2019) (alterations in original) (quoting Henry, 166 A.D.3d at 1292).
15
Quito nevertheless argues that, under § 263.16, the defendant must know
only that he or she possesses sexually explicit and pornographic material, and
need not know that the material is child pornography. If the government proves
that the material involves a minor, Quito asserts, then the defendant is strictly
liable. To support this argument, Quito relies on N.Y. Penal Law § 15.20(3), which
states that “knowledge by the defendant of the age of [the] child” is not an element
of § 263.16. However, § 15.20(3) establishes only that the government need not
prove that the defendant knew the specific age of the minor to obtain a conviction
under § 263.16. It has no bearing on § 263.16’s requirement that the defendant
“know[] the character and content” of the visual depiction, which, as explained
above, requires that the defendant know that he or she possesses child
pornography.
Quito also relies on a New York state trial court decision, People v. Gilmour,
177 Misc. 2d 250 (N.Y. Sup. Ct. 1998), to support his interpretation. The court in
Gilmour stated that “[i]n order to obtain a conviction under [§ 263.16], a prosecutor
16
is . . . required to prove beyond a reasonable doubt that a defendant knows both
the character and content of the material possessed.” Id. at 255. It continued that
“once knowledge is proven, a strict liability standard is imposed, provided that
the prosecutor can also prove beyond a reasonable doubt that the child performer
is less than 16 years of age.” Id. Although the court used the phrase “strict
liability,” it also acknowledged that § 263.16 contains a scienter requirement—that
the defendant know the character and content of the material he or she possesses.
See id. As explained above, New York’s intermediate appellate courts have
consistently interpreted that scienter requirement to mean that the defendant must
know the material is not just pornography, but child pornography. Thus, the court
in Gilmour correctly noted that, if the defendant has that knowledge, he or she is
guilty if the child is less than 16 years old, even if the defendant does not know the
child’s specific age. Quito has not cited a New York state case, and this Court is
17
not aware of one, where a defendant was found guilty under § 263.16 even though
he or she did not know that the material possessed was child pornography.2
Accordingly, because both § 263.16 and § 2252 require proof beyond a
reasonable doubt that the defendant knowingly possessed a visual depiction
involving the use of a minor, we hold that the knowledge requirements under the
statutes categorically match.
B. Affirmative Defense
Quito also argues that § 263.16 sweeps more broadly than § 2252 because it
does not permit an affirmative defense that is available under § 2252. Specifically,
§ 2252(c) allows an affirmative defense for an individual who possesses less than
three prohibited visual depictions and, without allowing anyone else to access
2Quito cites to three New York state court decisions that he asserts held that, under § 15.20(3), “a
defendant’s knowledge of the victim’s age is not an element of the crime.” Pet’r’s Br. 23 (first
citing People v. Dozier, 72 A.D.2d 478, 485 (1st Dep’t 1980); then citing People v. Allen, 2003 WL
22056858, at *3 (N.Y. Crim. Ct. Aug. 27, 2003); and then citing People v. Prise, 135 Misc. 2d 363, 369
(N.Y. Crim. Ct. 1987)). None of these cases involved § 263.16 or any other offense relating to child
pornography.
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them, either promptly destroys them or turns them over to law enforcement. See
18 U.S.C. § 2252(c). Section 263.16 does not permit a similar affirmative defense.
Neither the Supreme Court nor this Court has directly addressed the role of
affirmative defenses in the categorical approach. The Supreme Court has,
however, repeatedly instructed courts to look only to the statutory definition—
meaning the elements—of the relevant offense. See, e.g., Mathis v. United States,
136 S. Ct. 2243, 2248 (2016) (explaining that, under the categorical approach, courts
“focus solely on whether the elements of the crime of conviction sufficiently match
the elements of [the generic crime]”); Descamps v. United States, 570 U.S. 254, 261
(2013) (stating that “courts may ‘look only to the statutory definitions’—i.e., the
elements—of a defendant’s prior offenses” in applying categorical approach
(quoting Taylor v. United States, 495 U.S. 575, 600 (1990))). “Elements” in this
context “are the ‘constituent parts’ of a crime’s legal definition—the things the
‘prosecution must prove to sustain a conviction.’” Mathis, 136 S. Ct. at 2248
(quoting Black’s Law Dictionary (10th ed. 2014)).
19
Given this guidance, those circuits to have considered this issue have
concluded that affirmative defenses are not relevant to the categorical approach
because they are not elements of an offense. See United States v. Escalante, 933 F.3d
395, 399‐400 (5th Cir. 2019) (stating that “it is black letter law that an affirmative
defense (or the absence thereof) is not the same thing as an element of the crime”
and “reject[ing] Escalante’s argument to consider different permissible affirmative
defenses . . . when applying the categorical approach”); United States v.
Velasquez‐Bosque, 601 F.3d 955, 963 (9th Cir. 2010) (concluding that, because courts
look to only the statutory definition of the offense, “[t]he availability of an
affirmative defense is not relevant to the categorical analysis”); cf. Donawa v. U.S.
Att’y Gen., 735 F.3d 1275, 1282 (11th Cir. 2013) (rejecting argument that existence
of affirmative defense warranted application of modified categorical approach
because “[a]n affirmative defense generally does not create a separate element of
the offense that the government is required to prove in order to obtain a
conviction”).
20
Quito argues that the Supreme Court’s decision in Moncrieffe instructs
otherwise. Moncrieffe involved a provision of the INA that defines as an
aggravated felony any offense that the Controlled Substances Act (“CSA”) makes
punishable as a felony. 569 U.S. at 188. The petitioner was convicted under
Georgia state law for possession of marijuana with intent to distribute. Id. at 188‐
89. In applying the categorical approach to determine whether that conviction was
an offense that the CSA makes punishable as a felony, the Supreme Court
considered an exception to felony treatment under the CSA that “makes marijuana
distribution punishable only as a misdemeanor if the offense involves a small
amount of marijuana for no remuneration.” Id. at 189. Because the Georgia statute
under which the petitioner was convicted criminalized conduct that fell within the
CSA’s exception to felony treatment, the Supreme Court held that the petitioner’s
conviction was not an aggravated felony under the categorical approach. Id. at
194‐95 (“Moncrieffe’s conviction could correspond to either the CSA felony or the
CSA misdemeanor. Ambiguity on this point means that the conviction did not
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‘necessarily’ involve facts that correspond to an offense punishable as a felony
under the CSA.”).
Contrary to Quito’s assertions, the Supreme Court’s decision in Moncrieffe
did not alter the legal principle that courts are to focus on only the statutory
definition of an offense in applying the categorical approach. Instead, the Court
explained that “a generic federal offense may be defined by reference to both
‘“elements” in the traditional sense’ and sentencing factors,” id. at 198 (quoting
Carachuri‐Rosendo v. Holder, 560 U.S. 563, 572 (2010)), and the CSA’s exception to
felony treatment was relevant to that case only because “Congress . . . chose[] to
define the generic federal offense by reference to punishment,” id. at 195.
Accordingly, we hold that, because they are not “elements” of an offense,
affirmative defenses are not relevant to the categorical approach, and we decline
to consider § 2252(c) here.
22
In sum, we conclude that § 263.16 categorically matches § 2252(a)(4)(B), and
thus the agency correctly determined that Quito’s conviction is an aggravated
felony rendering him removable under 8 U.S.C. § 1101(a)(43)(I), (U).
II. Waiver of Inadmissibility
Finally, we lack jurisdiction to review Quito’s challenge to the agency’s
denial of a waiver of inadmissibility. Under the INA, our jurisdiction to review
such discretionary decisions is restricted to colorable constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D). A colorable constitutional claim
or question of law may arise “in fact‐finding which is flawed by an error of law”
or “where a discretionary decision is argued to be an abuse of discretion because
it was made without rational justification or based on a legally erroneous
standard.” Barco‐Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008) (internal
quotation marks omitted) (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
329 (2d Cir. 2006)). However, “the mere assertion that an IJ has ‘abused his
discretion’ by ‘incorrectly weigh[ing] the evidence, fail[ing] to explicitly consider
23
certain evidence, [or] simply reach[ing] the wrong outcome’ does not itself
establish a colorable ‘constitutional claim’ within the meaning of 8 U.S.C.
§ 1252(a)(2)(D), even if a petitioner ‘dress[es] up’ his claim in the language of due
process.” Bugayong v. INS, 442 F.3d 67, 72 (2d Cir. 2006) (alterations in original)
(quoting Saloum v. U.S. Citizenship & Immigration Servs., 437 F.3d 238 (2d Cir.
2006)).
Quito fails to raise a colorable constitutional claim or question of law
relating to the discretionary denial of his application for a waiver of
inadmissibility. As noted earlier, the immigration judge assumed that Quito was
eligible for a waiver of inadmissibility, but denied the waiver as a matter of
discretion based on Quito’s criminal history and his attempts to minimize his
culpability for the child pornography conviction. The BIA agreed that denial of
the waiver was warranted as a matter of discretion. In challenging this
discretionary determination, Quito argues that the agency misinterpreted § 263.16
but, as explained above, the agency correctly interpreted that statute. Moreover,
24
the agency is not bound by the categorical approach in determining whether a
petitioner warrants discretionary relief and may consider the facts and underlying
conduct surrounding a given conviction. See Wallace v. Gonzales, 463 F.3d 135, 139
(2d Cir. 2006). Quito’s remaining arguments challenge how the agency weighed
the evidence and balanced the hardships in his case, which are discretionary and
factual issues that we lack jurisdiction to review. See Xiao Ji Chen, 471 F.3d at
329‐30.
CONCLUSION
Because we conclude that N.Y. Penal Law § 263.16 categorically matches
§ 2252(a)(4)(B), and because Quito’s challenge to the agency’s denial of his
application for a waiver of inadmissibility fails to raise a colorable constitutional
claim or question of law, we DENY the petition for review. The stay of removal
that the Court previously granted is VACATED.
25