943 F.3d 619
2d Cir.2019Background
- Petitioner Braulio Duran Acevedo, a lawful permanent resident since 1969, was convicted on May 19, 2015 of attempted oral/anal sexual conduct with a person under 15 (N.Y. Penal Law §§ 110.00, 130.45(1)) and sexual contact with a person under 14 (N.Y. Penal Law § 130.60(2)).
- DHS charged Acevedo as removable for aggravated felony sexual abuse of a minor (SAM) and related offenses; the IJ found him removable and barred him from cancellation of removal; the BIA affirmed.
- The BIA applied the categorical approach and used the definition of “sexual abuse” in 18 U.S.C. § 3509(a)(8) as a guide to identify SAM for INA purposes, rather than adopting 18 U.S.C. § 2243 in full.
- Acevedo argued (1) Esquivel‑Quintana requires using 18 U.S.C. § 2243 as the federal definition of SAM and (2) his New York convictions are strict‑liability offenses lacking the knowing mens rea required for SAM. He also contended the BIA failed to analyze mens rea.
- The Second Circuit held Acevedo’s N.Y.P.L. § 130.45 conviction categorically constitutes SAM: the statute’s criminalized conduct cannot realistically occur without a knowing mens rea and the statute does not criminalize more conduct than the federal SAM definition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Acevedo’s NY conviction qualifies as "sexual abuse of a minor" (an INA aggravated felony) | Acevedo: NY convictions are strict‑liability and thus lack required mens rea; do not match federal SAM | Government: NY statute (with attempt) and conduct necessarily involve knowing conduct and fit within federal SAM as guided by § 3509(a)(8) | Court: NY § 130.45 categorically qualifies as SAM; petition denied |
| Whether the BIA may use 18 U.S.C. § 3509(a)(8) as a definitional guide post‑Esquivel‑Quintana | Acevedo: Esquivel‑Quintana precludes using § 3509(a)(8); requires reference to § 2243 | Government: BIA may use § 3509(a)(8) as guidance; Esquivel‑Quintana did not categorically bar its use in all cases | Court: BIA’s prior deference to § 3509(a)(8) survives Esquivel‑Quintana; use as a guide is permissible |
| What mens rea is required for a crime to qualify as SAM under the INA | Acevedo: Federal SAM requires a heightened mens rea that NY statute lacks | Government: SAM requires a knowing or purposeful mens rea; NY conduct necessarily involves knowledge | Court: A knowing mens rea is required for SAM; § 130.45 involves conduct that cannot realistically be committed without knowledge, satisfying the requirement |
| Whether lack of a mistake‑of‑age defense or strict‑liability labels exclude a state statute from SAM | Acevedo: Absence of mistake‑of‑age defense and strict‑liability classification disqualify the conviction | Government: At the time SAM was added many states lacked mistake‑of‑age defenses; excluding such statutes would defeat congressional intent | Court: Lack of mistake‑of‑age defense or strict‑liability label does not place NY § 130.45 outside SAM; many states historically had similar rules |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach governs whether state conviction matches federal generic offense)
- Esquivel‑Quintana v. Sessions, 137 S. Ct. 1562 (2017) (limits BIA interpretations where INA unambiguous; constrains but does not categorically bar use of § 3509(a)(8))
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (requirement to read mens rea in light of seriousness of offense when classifying aggravated crimes)
- Johnson v. United States, 559 U.S. 133 (2010) (categorical approach focuses on least conduct criminalized)
- Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d 119 (2d Cir. 2011) (New York sexual conduct categories fit within federal definition of sexually explicit conduct)
- Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001) (deference to BIA in using § 3509(a)(8) as guidance)