Matthews v. Barr
927 F.3d 606
| 2d Cir. | 2019Background
- Gerard Patrick Matthews, an Irish national and U.S. lawful permanent resident since 1989, was convicted in 2002 and 2003 under NYPL § 260.10(1) (endangering the welfare of a child) for public exposure incidents where minors were present; DHS placed him in removal proceedings charging him as removable under INA § 237(a)(2)(E)(i).
- The IJ relied on the BIA's precedential decision in Matter of Mendoza Osorio and ordered Matthews removed; the BIA affirmed, finding § 260.10(1) requires a knowing act that creates a likelihood of harm to a child.
- Matthews challenged removal, arguing (1) the INA's crime-of-child-abuse definition requires actual or high-risk harm (attacking Chevron deference to the BIA), and (2) NYPL § 260.10(1) is broader than the BIA's definition and allows convictions for only minimal or speculative harm.
- The Second Circuit panel declined to revisit Florez v. Holder (which deferred to the BIA under Chevron), held Florez remains binding after Esquivel-Quintana, and concluded NYPL § 260.10(1) is a categorical match with the BIA’s definition because the statute (as interpreted by New York courts) requires knowledge and a likelihood of harm.
- The court applied the categorical approach and the "realistic probability" standard, concluding Matthews failed to show a realistic probability that NY prosecutes conduct falling outside the BIA’s definition; petition for review denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chevron deference to the BIA's definition of "crime of child abuse" remains appropriate after Esquivel-Quintana | Matthews: Esquivel-Quintana undermines Chevron deference; BIA's broad definition is unreasonable | Government: Florez is binding; Esquivel-Quintana is narrow and does not displace Chevron here | Court: Florez remains binding; Chevron deference to BIA's definition continues to apply |
| Whether NYPL § 260.10(1) is categorically a "crime of child abuse" under INA § 1227(a)(2)(E)(i) | Matthews: NY statute permits convictions for minimal/nonserious risk and thus is broader than the federal definition | Government/BIA: NYPL requires a knowing act and a likelihood of harm; matches BIA definition | Court: § 260.10(1) is a categorical match — it requires knowledge and a likelihood (not mere possibility) of harm |
| Whether Matthews demonstrated a "realistic probability" that NY prosecutes conduct outside the BIA's definition (use of charging documents, plea rates, "home alone" cases) | Matthews: Charging documents and misdemeanor plea patterns show NY prosecutes and convicts for conduct that poses only speculative/minimal harm | Government: Charging documents not part of administrative record; BIA reasonably rejected using unproven charging papers | Court: Matthews failed to show realistic probability; available New York appellate authority requires likelihood of harm, so the least conduct criminalized fits BIA definition |
| Retroactivity of BIA's definition to pre-existing convictions (raised in dissent) | Matthews/dissent: Applying BIA's later definition retroactively to earlier convictions is unfair and raises reliance/retroactivity concerns | Majority: Not raised by counsel; court does not decide retroactivity | Dissent: Would apply retroactivity factors and would have barred retroactive application; concurrence (majority) declines to reach the issue |
Key Cases Cited
- Florez v. Holder, 779 F.3d 207 (2d Cir. 2015) (deferred to BIA definition that includes some endangerment offenses requiring a sufficiently high risk of harm)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (Supreme Court interpreted "sexual abuse of a minor" narrowly and emphasized use of all interpretive tools before invoking Chevron)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach requires considering the least conduct criminalized and directs the realistic-probability standard)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (established realistic-probability test and allocation of burden to alien to show state prosecutions outside federal definition)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (reaffirmed focus on the least conduct criminalized; actual conduct is irrelevant to categorical match)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (elements-based categorical comparison requires that state statute not cover a greater swath of conduct than the federal counterpart)