Oouch v. US DEPT. OF HOMELAND SECURITY
633 F.3d 119
| 2d Cir. | 2011Background
- Petitioner Alexander Oouch, a Russian citizen, was convicted under NYP L §263.05 for use of a child in a sexual performance.
- DHS issued a removal notice under 8 U.S.C. §1227(a)(2)(A)(iii) alleging aggravated felony of sexual abuse of a minor in §1101(a)(43)(A).
- Immigration judge found removability and ineligibility for cancellation; BIA affirmed, applying Taylor’s categorical approach and treating §263.05 as divisible and encompassing sexual abuse of a minor.
- Court reviews de novo whether NYP L §263.05 constitutes sexual abuse of a minor under §1101(a)(43)(A), with Chevron deference to BIA’s interpretation of the INA.
- Issue centers on whether the state statute is divisible and whether its conduct falls within the federal definition of sexual abuse of a minor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is NY P.L. §263.05 an aggravated felony under §1101(a)(43)(A)? | Oouch argues the statute’s structure may not map to ‘sexual abuse of a minor.’ | BIA and respondents argue Rodríguez-Rodríguez’sChevron-guided interpretation renders §263.05 within the sexual abuse of a minor category. | Yes; conviction falls within ‘sexual abuse of a minor’ under §1101(a)(43)(A). |
| Is NY P.L. §263.05 divisible, requiring a modified categorical approach? | Oouch contends the statute’s discrete offenses could yield different removability outcomes. | BIA’s approach deems the statute divisible if any listed offense supports removability. | Not divisible; §263.05 is a single offense structure for purposes here. |
| Does the parental clause of §263.05 require knowledge of the character and content of the sexual performance? | Gonzalez-style reading suggests no knowledge requirement for the parental clause. | Knowledge should apply; the clause should mirror the general clause’s mental state. | Yes; the knowledge requirement applies to the parental clause, making it subject to the same standard as the general clause. |
| If the offense is described as child pornography under §1101(a)(43)(I), is that controlling?” | Oouch suggests the conduct aligns more with child pornography. | Ground for removal was listed under §1101(a)(43)(A); the designation is not reviewable where removal basis was chosen. | Irrelevant to jurisdiction; removal based on §1101(a)(43)(A) is proper. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for aggravated felonies (removability))
- Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999) (BIA’s use of 3509(a) to define sexual abuse of a minor with Chevron deference)
- Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001) (Chevron deference to Rodriguez-Rodriguez adopted in circuit law)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (limits on mental-state requirements for crimes of violence)
- Gonzales v. Gonzalez, 481 F.3d 152 (2d Cir. 2007) (jurisdictional and legal standards for aggravated felonies)