Jose Reyes v. Attorney General United States of America ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-1493
______________
JOSE LUIS REYES,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A094-241-250)
_________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on December 8, 2022
Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges
(Filed: February 23, 2023)
______________
OPINION*
______________
*
This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute
binding precedent.
FUENTES, Circuit Judge.
Jose Luis Reyes petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) denying his application for cancellation of removal. Because Reyes has
failed to meet his burden to establish that his conviction under a New York statute is not a
disqualifying offense for cancellation of removal, we deny his petition for review.
I.
Petitioner Reyes is a native and citizen of Mexico who first entered the United States
without inspection in 1995. In 2004, Reyes pleaded guilty to a charge of sexual abuse
under New York Penal Law § 130.60 (“New York Statute”). In 2010, the Department of
Homeland Security initiated removal proceedings against Reyes by issuing a Notice to
Appear. Reyes did not dispute his removability on non-criminal grounds.
Reyes moved for cancellation of removal based on hardship to his three children if
he were removed. However, Reyes’s conviction for sexual abuse in the second degree
presents a barrier to cancellation of removal: that relief is unavailable to an applicant who
has been convicted of an “aggravated felony.”1 The Immigration Judge (“IJ”) found Reyes
removable, and then considered whether Reyes’s conviction constituted an aggravated
felony. The IJ concluded that the issue had been directly addressed by the BIA in Matter
of Small, and that the conviction did constitute an aggravated felony. The IJ therefore
ordered Reyes removed.
1
8 U.S.C. § 1229b(b)(1).
2
Reyes appealed to the BIA. The BIA affirmed the IJ’s ultimate conclusion that the
conviction constituted aggravated felony sexual abuse of a minor, making Reyes ineligible
for cancellation of removal. Reyes now petitions for review of that decision.
II.
We have jurisdiction to review the BIA’s final order of removal.2 We lack
jurisdiction to review an order to remove a non-citizen who has committed an aggravated
felony, 8 U.S.C. § 1252(a)(2)(C), but we may retain jurisdiction to address the prerequisite
of whether a petitioner was convicted of an aggravated felony.3 We review the BIA’s
determination that Reyes’s New York State conviction constituted an aggravated felony de
novo.4
III.
Reyes’s removability is not in dispute. Once the government has met its burden of
establishing removability, the noncitizen then bears the burden of establishing his
eligibility for discretionary cancellation of removal.5 The Immigration and Nationality Act
(“INA”) authorizes the Attorney General to cancel the removal of a noncitizen if that
person establishes, among other things, that his “removal would result in exceptional and
extremely unusual hardship to . . . [his] spouse, parent, or child, who is a citizen of the
2
8 U.S.C. § 1252(a)(5).
3
Stubbs v. Att’y Gen., 452 F.3d 251, 253 n.4 (3d Cir. 2006).
4
Evanson v. Att’y Gen., 550 F.3d 284, 288 (3d Cir. 2008). The BIA issued its own decision
on the merits rather than summarily affirming the IJ. We therefore review the BIA’s
decision, not that of the IJ. See Hanif v. Att’y Gen., 694 F.3d 479, 483 (3d Cir. 2012) (citing
Sheriff v. Att’y Gen., 587 F.3d 584, 588 (3d Cir. 2009)).
5
Syblis v. Att’y Gen., 763 F.3d 348, 357 (3d Cir. 2014).
3
United States.”6 The Attorney General may discretionarily grant that form of relief from
removal only to an applicant who, among other things, has not been convicted of an offense
under 8 U.S.C. § 1227(a)(2), which includes any “aggravated felony.”7 We therefore turn
to the question of whether Reyes’s conviction constitutes an aggravated felony.
A.
To determine whether a petitioner’s prior conviction is an aggravated felony, we
apply the categorical approach. This approach “asks only whether the elements of a federal
criminal statute can be satisfied by reference to the actual statute of conviction.”8 A court
looks “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.”9
A divisible statute listing multiple crimes with different elements requires courts to
employ a “modified” categorical approach to determine the precise crime of conviction.10
Under the modified categorical approach, the court may look to a limited class of
documents—such as the indictment, jury instructions, or plea agreement and colloquy—
solely to determine under which portion of the statute the defendant was convicted.11 Once
a court has used the modified categorical approach to “determine what crime, with what
6
8 U.S.C. § 1229b(b)(1).
7
Id.
8
Evanson, 550 F.3d at 292 (quoting Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004)).
9
Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (internal quotation marks omitted).
10
Hillocks v. Att’y Gen, 934 F.3d 332, 336 (3d Cir. 2019).
11
Mathis v. United States, 579 U.S. 500, 505 (2016).
4
elements, a defendant was convicted of,” then it may “compare that crime, as the
categorical approach commands, with the relevant generic offense.”12
B.
At the time of Reyes’s conviction, the statute under which he was convicted
provided that:
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:
(1) Incapable of consent by reason of some factor other than being
less than seventeen years old; or
(2) Less than fourteen years old.13
This statute requires the modified categorical approach because it has “alternative
elements.”14 It is divisible between its two subsections: subsection two requires that the
victim be under 14 years old, while subsection one does not. Further, New York’s Criminal
Jury Instructions and Model Colloquies provide two entirely different model instructions
for each of the statute’s two subsections.15 The statute is therefore divisible, and Reyes
does not argue otherwise.
As far as the record on Reyes’s conviction, the Administrative Record contains a
disposition sheet and a plea colloquy, which refers to the offense as “sex abuse in the
12
Id. at 505-06.
13
New York Penal Law § 130.60.
14
Hillocks, 934 F.3d at 339.
15
Penal Law Article 130, https://www.nycourts.gov/judges/cji/2-
PenalLaw/130/art130hp.shtml (last accessed February 8, 2023).
5
second degree.”16 The record is not perfectly clear as to which subsection Reyes was
convicted under. However, “an inconclusive record of conviction does not satisfy a
noncitizen’s burden of demonstrating eligibility for relief from removal.”17 Reyes instead
bears the burden of establishing that he was not convicted under subsection two.18 He has
not carried that burden.
C.
We next must determine whether subsection two categorically constitutes an
aggravated felony.19 The INA includes “sexual abuse of a minor” as an aggravated felony
but does not define that term.20 In the Third Circuit, “for purposes of applying the
categorical approach in the context of an immigration case, an analysis of the generic crime
of ‘sexual abuse of a minor’ depends upon 18 U.S.C. § 3509(a)(8) for guidance.”21 That
federal statute defines sexual abuse as including “the employment, use, persuasion,
inducement, enticement, or coercion of a child to engage in, or assist another person to
16
AR 935.
17
Syblis, 763 F.3d at 357.
18
See Pereida v. Wilkinson, 141 S. Ct. 754, 763 (2021) (explaining that the petitioner
carries the burden to prove as a factual matter that he was not convicted under a subsection
of a divisible statute that constitutes a crime of moral turpitude).
19
Reyes primarily argues that the BIA erred by not newly applying the categorical
approach, and instead relying on a misinterpretation of the holding of In Re Small, 23 I. &
N. Dec. 448 (BIA 2002). He also argues that the Third Circuit’s decision in Cabeda v.
Attorney General, 971 F.3d 165 (3d Cir. 2020) effectively overturned Small. Rather than
rely on Small, we will apply the categorical approach.
20
8 U.S.C. § 1101(a)(43)(A).
21
Cabeda, 971 F.3d at 169.
6
engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of
sexual exploitation of children, or incest with children.”22
Reyes argues that the minimal conduct needed to obtain a conviction under the New
York Statute is not conduct that could fit within this federal counterpart. He first argues
that touching through clothing can qualify as “sexual contact” under the New York Statute
but not under the federal equivalent. Section 3509(a)(9)(A) defines “sexually explicit
conduct”—one of the items included in the federal statute’s definition of “sexual abuse”—
to include “sexual contact in the manner of genital-genital, oral-genital, anal-genital, or
oral-anal contact.” 23 “Sexual contact” in turn is defined as including intentional touching
“either directly or through clothing.”24 Reyes’s argument is therefore unavailing.
Reyes also argues that the body parts included in the New York Statute are broader
than those included in the federal definition. The New York Statute defines “sexual
contact” as “any touching of the sexual or other intimate parts of a person for the purpose
of gratifying sexual desire of either party.”25 To support his position, Reyes cites to the
Second Circuit’s decision in United States v. Romeo, 385 F. App’x 45, 49 (2d Cir. 2010),
which relies on James v. Mukasey, 522 F.3d 250, 258 (2d Cir. 2008) for the proposition that
sexual contact under the New York Statute is broader than the federal definition. He also
22
18 U.S.C. § 3509(a)(8).
23
18 U.S.C. § 3509(a)(9)(A).
24
Id. (emphasis added).
25
New York Penal Law § 130.00(3).
7
cites to two New York cases holding that the New York Statute’s definition of sexual
conduct includes instances where the actor touches the victim’s upper leg.26
The Second Circuit has clearly held, however, that a conviction under the New York
Statute is an aggravated felony under the INA.27 In Rodriguez, the Second Circuit clarified
that the contrary suggestion in James was dicta and that “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.”28 It further explained that “[l]imitations
imposed by relevant state definitions and caselaw ensure that the state statute does not
extend beyond the federal definition: a conviction under [New York law] requires both that
the victim be [a minor] and that the perpetrator’s ‘sexual contact’ with the victim be ‘for
the purpose of gratifying sexual desire.’”29
We agree with the Second Circuit that the New York Statute sweeps no further than
the INA, especially considering the “breadth of conduct”30 encompassed by the federal
26
P. Brf. 17 (citing People v. Gray, 607 N.Y.S.2d 828, 962 (N.Y. App. Div. 1994); People
v. Morbelli, 544 N.Y.S.2d 442, 442, 487 (N.Y. Crim. Ct. 1989)).
27
Debique v. Garland, 58 F.4th 676 (2d Cir. 2023) (per curium).
28
Rodriguez v. Barr, 975 F.3d 188, 193 (2d Cir. 2020); see also Debique, 58 F.4th at 683
(“[O]ur holding in Rodriguez defeats [Petitioner’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.’”).
29
Rodriguez, 975 F.3d at 189. In Rodriguez, the relevant New York offense was §
130.65(3). Both § 130.60(2) and § 130.65(3) refer to “sexual abuse,” which is defined at
the outset of the statute, and therefore the same statutory definition applies to both statutory
provisions. Debique, 58 F.4th at 682 (referring to the two statutes as “substantively
identical”).
30
Restrepo v. Att’y Gen., 617 F.3d 787, 800 (3d Cir. 2010). Note that this Court continues
to be bound by Restrepo even after Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017).
Cabeda, 971 F.3d at 171. Restrepo in turn defers to the BIA’s decision in In re Rodriguez-
Rodriguez, in which the BIA concluded that the federal statute was not just intended to
8
generic definition, and that both statutes reach a “broad range of maltreatment [of children]
of a sexual nature.”31 And contrary to Reyes’s contention, a misdemeanor conviction can
qualify as an aggravated felony.32 Reyes has not demonstrated that subsection 2 of the New
York Statute criminalizes conduct that falls outside the generic federal definition. He
therefore has not met the burden of establishing his eligibility for discretionary cancellation
of removal.
IV.
For the foregoing reasons, we will deny Reyes’s petition for review.
capture crimes that involved physical sexual contact. In re Rodriguez-Rodriguez, 22 I. &
N. Dec. 991, 986 (BIA 1999).
31
In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 996.
32
See Biskupski v. Att’y Gen., 503 F.3d 274, 281 (3d Cir. 2007); United States v. Graham,
169 F.3d 787, 788 (3d Cir. 1999) (“[A] misdemeanor can be an ‘aggravated felony’ . . .
even if it is not, technically speaking, a felony at all.”).
9