Antonio DeJesus Nunez v. Attorney General United States ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-2651
ANTONIO DEJESUS NUNEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA-1: A061-038-927)
Immigration Judge: Jason Pope
Argued April 21, 2021
Before: AMBRO, RESTREPO, Circuit Judges, and
NOREIKA, ∗ District Judge
(Opinion Filed: May 26, 2022)
∗ The Honorable Maryellen Noreika, United States District Judge
for the District of Delaware, sitting by designation.
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
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.
2
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,
1
Nunez was charged with violating N.J. Stat. § 2C:14-2b
(sexual assault with a victim less than 13 years old where the
actor is at least four years older than the victim), § 2C:24-
4a(1) (endangering the welfare of a child), § 2C:14-3b
criminal sexual contact), and § 2C:14-4b(1) (lewdness).
3
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.”
2
Although the NTA also charged Nunez with removability
under § 1227(a)(2)(A)(i), for a crime involving moral turpitude
committed within five years after admission, that charge was
later withdrawn.
4
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
5
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.
6
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. Discussion 3
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.
3
The Board had jurisdiction under 8 C.F.R. § 1003.1(b)(3).
This Court has jurisdiction to review the Board’s decision
under 8 U.S.C. § 1252(a).
7
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 (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 offense
listed in the INA.” Moncrieffe v. Holder, 569 U.S. 184, 190
(2013); see also Liao, 910 F.3d at 721. The categorical
approach “blinds us to the facts” of a defendant’s actual
conduct and requires that we look only at the elements
necessary for conviction. Cabeda v. Att’y Gen., 971 F.3d 165,
167 (3d Cir. 2020).
8
Here, we need not consider every section of N.J. Stat.
§ 2C:24-4. Nunez pled guilty to and was convicted of
subsection (a)(1), argued below that only that subsection need
be considered, A.R. 25, and does not currently contest the
statute’s divisibility. 4
As with all exercises in statutory interpretation, we
begin with the language of the statute, which prohibits
“engag[ing] in sexual conduct which would impair or debauch
the morals of [a] child.” 5 N.J. Stat. § 2C:24-4(a)(1). This
Court previously adopted the Board’s definition of “child
abuse” as including “mental or emotional harm, including acts
injurious to morals.” Mondragon-Gonzalez v. Att'y Gen., 884
F.3d 155, 159 (3d Cir. 2018) (quoting Matter of Velazquez-
Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008)). Thus, the New
Jersey statute’s reference to “the morals of [a] child” addresses
a type of harm contemplated by the INA. Furthermore, the
statute’s use of would rather than could denotes that it prohibits
conduct that has some likelihood, rather than mere capacity, of
impairing a child’s morals. That is consistent with the ordinary
4
This Court has previously held, in a case involving a
conviction under the same subsection of the statute, that N.J.
Stat. § 2C:24-4 is divisible. Sanchez v. Att’y Gen., 757 F.
App’x 142, 145 (3d Cir. 2018).
5
In contrast, the statute at issue in Liao states: “[a] parent,
guardian or other person supervising the welfare of a child
under 18 years of age, or a person that employs or supervises
such a person, commits an offense if he knowingly endangers
the welfare of the child by violating a duty of care, protection
or support.” Liao, 910 F.3d at 721 (quoting 18 Pa. Cons. Stat.
4304(a)(1)).
9
meaning of would, which is used “to express probability or
presumption.” The Merriam–Webster Dictionary, Would,
https://www.merriam-webster.com/dictionary/would (last
visited Jan. 3, 2021). Thus, the plain text of the statute
6
suggests a likelihood of harm is required for conviction.
That meaning is confirmed by New Jersey case law on
the issue. In State v. Hackett, the Supreme Court of New Jersey
considered a case in which the defendant had been convicted
under § 2C:24-4(a) after two eleven-year-old girls and one
thirteen-year-old girl had, at various times, seen him standing
nude in his home within clear view of the front window on
approximately eleven total occasions, including one in which
he “posed.” 764 A.2d 421, 423 (N.J. 2001). In concluding that
the statute does not require proof of actual harm to a minor, the
court focused on the text of the statute, indicating that “[t]he
word ‘would’ signals the futurity of a likely event.” Id. at 428(emphasis added). The court also noted that the predecessor to
§ 2C:24-4(a) had applied to conduct “which tends to debauch
the child or impair its morals,” N.J. Stat.§ 2A:96-3, and
6
This Court has cautioned against relying on dictionary
definitions to adopt overly narrow interpretations of statutes,
particularly when doing so means ignoring conflicting
definitions. See Bonkowski v. Oberg Indus., Inc., 787 F.3d
190, 199–201 (3d Cir. 2015). In this case, however, only one
of the listed definitions of would makes sense in the context
of N.J. Stat. § 2C:24-4(a)(1). And indeed, that definition is
consistent with how this Court has previously interpreted
2C:24-4(a)(1), noting that the “statute reaches only ‘sexual
conduct’ that will ‘impair or debauch’ the child's morals,” not
simply conduct that could do so. See Sanchez, 757 F. App'x
at 146 (emphasis added).
10
concluded that “the altered statutory language ‘which would
impair or debauch the morals of a child’ [did not] heighten[]
the proof required.” Hackett, 764 A.2d at 428. In discussing
the type of proof required, the Hackett court also adopted the
“tendency” requirement of the predecessor statute:
“determination of whether specific conduct has the tendency to
impair or debauch the morals of the average child is not
‘beyond the ken of the average juror.’” Id. at 429 (emphasis
added). Further, the court cited with approval the newly-
revised Model Jury Charge for § 2C:24-4(a), which read
“[s]exual conduct [that] would impair or debauch the morals of
a child is conduct which tends to corrupt, mar or spoil the
morals of a child under sixteen (16) years of age.” Id. at 432
(emphasis in original). The Hackett court’s interpretation of
the statutory language and its discussion of the “tendency” to
harm confirm that a conviction under § 2C:24-4(a) requires
proof of a likelihood of harm.
Nunez argues that, under Hackett, § 2C:24-4(a) requires
merely the capacity for harm, pointing to the court’s statement
of its express holding: “[w]e hold that based on the testimony
offered, a jury could conclude beyond a reasonable doubt that
Hackett's conduct had the capacity to impair or debauch the
morals of a minor.” Id. at 423 (emphasis added). This
argument, however, ignores that Hackett focused on a different
issue than our inquiry today. Although we must determine
whether the statute requires more than mere capacity to harm,
the Hackett court considered whether the statute requires proof
of actual harm. See id. at 428. Thus, Hackett’s discussion of
capacity serves to differentiate potential or likely harm from
actual harm, which the lower court had required. This
ambiguous usage of “capacity” is clearest in the discussion of
the jury’s role:
11
In our view, this jury had the
ability to discern whether the
conduct that occurred had the
capacity to debauch or impair the
morals of an average child in the
community. The question is not
whether the victims of the alleged
endangering actually had their
morals impaired or debauched, but
whether the actor's “sexual
conduct” was conduct that likely
would impair or debauch the
morals of a child in the
community.
Id. at 430 (emphasis added). When read in context, the
language cited by Nunez refers, albeit perhaps imprecisely, to
the fact that § 2C:24-4(a) does not require proof of actual harm.
Rather, the statute requires proof of tendency to harm, which
meets the requirement of “likelihood” established by this Court
in Liao.
Nunez further argues that the New Jersey Appellate
Division decision in State v. Bryant establishes that only the
capacity for harm is needed under § 2C:24-4(a). 15 A.3d 865(N.J. Super. App. Div. 2011. Although Bryant does refer to
capacity, it again does so in a different context than our
analysis in this case. The Bryant court faced whether a
conviction under § 2C:24-4(a) requires the defendant to know
the effect his conduct would have on the victim. Id. Because
the court’s analysis focused on the victim’s mental state, the
language regarding capacity or likelihood of harm is unclear.
12
The court alternately referred to capacity, id. at 866, 868, 870,
874, and to whether the conduct “would” or “tended to” impair
or debauch the morals of the child, id. at 866, 868, 869, 871,
872, 873, 874. Indeed, the court used the two seemingly
conflicting wordings in close proximity, noting that “it makes
little sense to require the actor to know that his conduct would
cause” the victim harm and concluding that the statute does not
require knowledge that the defendant’s “conduct would impair
or debauch the victim's morals,” and in the very next sentence
stating that the state would have to prove only that “such
conduct had the capacity to impair or debauch the child’s
morals.” Id. at 874. Like the Hackett court, the court in Bryant
quoted extensively from the legislative history of the statute,
none of which refers to a mere capacity for harm. See id. at
871–72. Furthermore, nowhere does Bryant suggest that the
court is departing from or changing the level of proof required
by Hackett. Indeed, it could not, as Bryant is not a decision
from New Jersey’s highest appellate court. Thus, nothing in
Bryant suggests that the interpretation of § 2C:24-4(a) has
changed since the New Jersey Supreme Court’s decision in
Hackett.
Both the plain language of the statute and the
controlling state law on the issue demonstrate that a conviction
under § 2C:24-4(a) requires proof that the defendant’s conduct
has a “particular likelihood” to cause harm to the child, as is
required under Liao, 910F.3d at 721. Therefore, the statute
categorically meets the definition of child abuse and Nunez’s
conviction is sufficient to sustain the charge of removability
under 8 U.S.C. § 1227(a)(2)(E)(i).
13
B. Eligibility for Cancellation of Removal
Nunez next argues that, even if he is removable, the
Board erred in sustaining the IJ’s pretermission of his
cancellation application because there was insufficient
evidence that he committed the crime before accruing the
necessary seven years of continuous residence. We review
such factual findings under the substantial evidence standard,
meaning we will not disturb the findings of the Board unless
“any reasonable adjudicator would be compelled to conclude
to the contrary.” Mendoza-Ordonez v. Atty. Gen. of U.S., 869
F.3d 164, 169 (3d Cir. 2017) (citing 8 U.S.C. § 1252(b)(4)(B).
Here, we are satisfied that there was substantial
evidence that Nunez committed the crime within seven years
of being admitted to the United States on February 14, 2010.
Nunez pled guilty to a charge stating that the offense took place
“on or between about January 1, 2013 and December 3, 2018.”
A.R. 566. Although Nunez did not admit to the IJ or the Board
the timing of the conviction, the fact that he pled guilty to a
charge indicating a date as early as 2013 is itself persuasive.
As the Board noted, New Jersey prosecutors use the “on or
between” formulation to allege ongoing or continuing
violations. A.R. 5–6. Nunez’s sole citation to the contrary is
to a federal case, that has no relevance to the practices of New
Jersey state prosecutors. Finally, although Nunez testified
before the IJ that the charged conduct occurred in October
2018, the IJ found the testimony self-serving and declined to
find Nunez credible. That determination has sufficient support
in the record to warrant deference. See Dia v. Ashcroft, 353
F.3d 228, 249 (3d Cir. 2003).
14
Thus, the Board’s decision to affirm the pretermission
of Nunez’s cancellation application was based on substantial
evidence.
Lastly, we will briefly address Nunez’s argument that
the IJ erred in denying a continuance before ruling on the
motion for cancellation of removal. Although this argument
received a scant two sentences in each of Nunez’s brief to the
Board and in his opening brief to this Court, we have adopted
a “liberal exhaustion policy [where] an alien need not do much
to alert the Board that he is raising an issue.” Liao, 910 F.3d
at 718. We review an IJ’s denial of a continuance for abuse of
discretion, Hashmi v. Att’y Gen., 513 F.3d 256, 259 (3d Cir.
2008), and are satisfied that there was no such abuse here. As
the IJ explained, Nunez’s counsel had been aware of the
potential impact of the conviction and although the
Government had initially suggested that Nunez might be
eligible for cancellation of removal, it had also indicated it
would further review the issue. Therefore, the IJ’s decision fell
within the bounds of his discretion.
* * *
For the foregoing reasons, the petition for review is
denied.
15
AMBRO, Circuit Judge, dissenting
Sometimes the logic of the categorical approach is so
counterintuitive it would vex even Wittgenstein. This is one
such occasion. The conduct Antonio DeJesus Nunez allegedly
committed was deplorable. If considered alone, it would easily
qualify as a “crime of child abuse” under the Immigration and
Nationality Act (INA) and warrant deportation. See 8 U.S.C.
§ 1227(a)(2)(E)(i) (“Any alien who at any time after admission
is convicted of . . . a crime of child abuse . . . is deportable.”).
But under the categorical approach, Nunez’s “specific conduct
. . . is ‘irrelevant.’” Liao v. Att’y Gen., 910 F.3d 714, 721 (3d
Cir. 2018) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190
(2013)). We must instead decide whether a violation of New
Jersey’s child endangerment statute, N.J. Stat. Ann. § 2C:24-
4(a)(1), under which Nunez was convicted, categorically
qualifies as a “crime of child abuse” for purposes of the INA.
Because I part from my colleagues’ conclusion that such a
violation so qualifies, I respectfully dissent.
In Liao we held that, to qualify as a “crime of child
abuse” under the INA, a state offense must require a
“sufficiently high risk of harm to a child.” 910 F.3d at 722
(internal quotation marks omitted). In that case, we decided
that a Pennsylvania child endangerment statute was not a
“crime of child abuse” for purposes of the INA because the
Pennsylvania courts construed that statute broadly to “only
require[] proof of circumstances that could threaten the child’s
physical or psychological welfare.” Id. at 721 (quoting
Commonwealth v. Martir, 712 A.2d 327, 330 (Pa. Super. Ct.
1998)) (emphasis added). Because the BIA had interpreted
“child abuse” under the INA to require a “particular likelihood
of harm to [the] child,” we reasoned, a state statute covering
1
conduct that could threaten a child is not a categorical match.
Id. at 721–23 (quoting Matter of Mendoza Osorio, 26 I.& N.
Dec. 703, 711 (BIA 2016)).
As with the statute at issue in Liao, New Jersey’s child
endangerment statute has been construed broadly. In State v.
Hackett, 764 A.2d 421 (N.J. 2001), the New Jersey Supreme
Court expressly held conduct with merely the “capacity” to
impair a child’s morals violates § 2C:24-4(a)(1). See id. at 423
(“We hold that based on the testimony offered, a jury could
conclude beyond a reasonable doubt that Hackett’s conduct
had the capacity to impair or debauch the morals of a minor.”).
I read the term “capacity” in Hackett as doing work similar to
“could” in Liao. Compare Liao, 910 F.3d at 721, 723
(Pennsylvania statute requiring only conduct that “that could
threaten the child’s physical or psychological welfare” was not
a categorical “crime of child abuse” under INA (internal
quotation marks omitted) (emphasis added)), with Hackett, 764
A.2d at 423 (upholding conviction under New Jersey child
endangerment statute where defendant’s “conduct had the
capacity to impair or debauch the morals of a minor” (emphasis
added)). With these similarities in mind, I believe Liao and its
result control here.
Moreover, the conduct in Hackett did not obviously
impair children’s morals. A man “stood nude in his house, in
open view through a front window . . . in the morning hours at
the designated time children were assembling at a school bus
stop located directly in front of his home.” Hackett, 764 A.2d
at 428. There were no allegations the man performed any
sexual acts beyond standing nude. The New Jersey Supreme
Court admitted this was “a thin . . . basis upon which a jury
could have arrived at a guilty verdict on the endangering
2
charge.” Id. Yet it nonetheless upheld the conviction,
concluding the jury could have reasonably decided “that [the]
defendant’s conduct had the tendency to impair or debauch the
morals of the children who observed his nudity.” Id. at 429.
So, as Hackett itself illustrates, a conviction under § 2C:24-
4(a)(1) need not even require sexual conduct with the child—
merely exposing the child to nudity can be enough. Id. at 428–
29. Such conduct does not “create a particular likelihood of
harm to the child that rises above conduct that creates only the
bare potential for nonserious harm” as required by Liao. 910
F.3d at 720 (internal quotation marks omitted) (alterations
adopted).
The majority explains Hackett’s “capacity” language as
“imprecise[].” Maj. Op. at 12. Tempting as this approach may
be, subsequent New Jersey court decisions employed the
“capacity” test of Hackett. See State v. Bryant, 15 A.3d 865,
874 (N.J. Super. Ct. App. Div. 2018) (stating that to sustain a
conviction under § 2C:24-4(a), the defendant only needs to
know his conduct “had the capacity to impair or debauch the
child’s morals”); see also State v. M.V.F., No. A–2174–16T4,
2018 WL 1659699, at *4 (N.J. Super. Ct. App. Div. Apr. 6,
2018) (per curiam); State v. L.H., No. A-2645-17T4, 2019 WL
2206400, at *3 (N.J. Super. Ct. App. Div. May 22, 2019) (per
curiam). The majority dismisses Bryant as not “suggest[ing]
that the court is departing from or changing the level of proof
required by Hackett.” Maj. Op. at 12. But this characterization
underscores that New Jersey courts have continued to apply the
broad standard laid out in that case: conduct with merely the
“capacity” to debauch the morals of a child falls within the
ambit of § 2C:24-4(a)(1).
* * * * *
3
New Jersey’s child endangerment statute, as interpreted
by the State’s Supreme Court, is to me too broad for a violation
to qualify categorically as a “crime of child abuse” under the
INA. Accordingly, I respectfully dissent.
4