Oouch v. United States Department of Homeland Security
2011 U.S. App. LEXIS 1755
| 2d Cir. | 2011Background
- Oouch Alexander, a Russian citizen, was convicted of use of a child in a sexual performance under NY Penal Law § 263.05.
- DHS issued a Notice to Appear seeking removal as an aggravated felony for sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A).
- On June 1, 2009, he was additionally convicted of possessing a sexual performance by a child under NY Penal Law § 263.16, not listed as a ground for removal in the Notice to Appear.
- The BIA dismissed Oouch’s appeal on October 23, 2009, applying a Taylor categorical approach and holding § 263.05 divisible with all divisions constituting sexual abuse of a minor.
- Oouch challenged the BIA’s interpretation, arguing § 263.05 is not divisible and that its offenses may not categorically fit the “sexual abuse of a minor” category; the Second Circuit dismissed the petition for review.
- The court ultimately concluded § 263.05 is not divisible and that the conviction falls within the meaning of “sexual abuse of a minor,” affording removal under § 1227(a)(2)(A)(iii) and leaving no jurisdiction to review the removal order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NYPL §263.05 is a divisible statute for purposes of §1101(a)(43)(A). | Oouch argues the statute is divisible, requiring a modified or partial inquiry. | BIA treated the statute as divisible, with some divisions constituting sexual abuse of a minor. | Statute is not divisible; record supports singular offense. |
| Whether the general clause of §263.05 satisfies the “sexual abuse of a minor” definition, including mental-state requirements. | Rodriguez-Rodriguez guidance supports broad interpretation. | BIA interpretation consistent with Chevron deference and federal definition. | General clause constitutes sexual abuse of a minor under the statute. |
| Whether the parental clause carries the same knowledge requirement as the general clause. | Parental clause may lack the knowledge element. | Parental clause has equivalent knowledge requirement to general clause. | Parental clause has knowledge requirement; conviction falls under sexual abuse of a minor. |
| Whether the offense described by §263.05 is categorically an aggravated felony under §1101(a)(43)(A) or (I). | Argues misalignment with child pornography category. | Offense remains within sexual abuse of a minor for removal purposes. | Offense qualifies as sexual abuse of a minor; removal proper. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (categorical approach for evaluating offenses for removability)
- Blake v. Gonzales, 481 F.3d 152 (2d Cir. 2007) (jurisdiction to determine questions of law arising from BIA proceedings; deference to agency interpretations)
- Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999) (BIA’s broad interpretation of ‘sexual abuse’ under §1101(a)(43)(A) with Chevron deference)
- Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001) (affirms Chevron deference to BIA’s interpretation of INA terms)
- Sui v. INS, 250 F.3d 105 (2d Cir. 2001) (limits review to constitutional and legal questions arising from BIA proceedings)
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (caution in comparing mental-state requirements to ‘crime of violence’)
- Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) (explains categorical vs. modified categorical approach)