948 F.3d 83
2d Cir.2020Background
- Sergio Quito, an Ecuadorian lawful permanent resident, pleaded guilty in 2012 to attempted possession of a sexual performance by a child under N.Y. Penal Law § 263.16.
- DHS charged Quito as removable for conviction of an aggravated felony related to child pornography under INA § 1101(a)(43)(I),(U) and initiated removal proceedings.
- An IJ found § 263.16 categorically matches the federal child‑pornography offense in 18 U.S.C. § 2252(a)(4)(B) (as interpreted in Weiland), denied Quito’s motion to terminate, and denied discretionary relief (§ 212(h) waiver and adjustment) based on his criminal history and minimization of culpability.
- The BIA affirmed the IJ’s ruling that the conviction is an aggravated felony and upheld the discretionary denial of relief.
- Quito petitioned for review; this Court retained jurisdiction over the categorical question and addressed whether § 263.16’s elements match § 2252(a)(4)(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction under N.Y. Penal Law § 263.16 is an aggravated felony under INA by matching 18 U.S.C. § 2252(a)(4)(B) | Quito: § 263.16 is broader because it does not require knowledge that the victim was a minor (only knowledge of character/content) | Gov: § 263.16 requires knowing the character/content (i.e., that the material involves a minor) and thus matches § 2252 | Court: § 263.16 and § 2252 categorically match; conviction is an aggravated felony |
| Whether an affirmative defense in § 2252(c) (limited‑possession and prompt destruction) prevents categorical match | Quito: absence of § 2252(c) analog in § 263.16 makes the state statute broader | Gov: affirmative defenses are not elements and are irrelevant to categorical analysis | Court: Affirmative defenses are not elements; § 2252(c) not considered; result unchanged |
| Whether Court should treat Weiland as dispositive | Quito: Weiland did not consider the scienter/defense issues at bar | Gov: Weiland supports removability | Court: Weiland does not foreclose Quito’s distinct arguments but Court independently holds § 263.16 matches § 2252 |
| Reviewability of discretionary denial of § 212(h) waiver | Quito: agency abused discretion in weighing hardship vs. criminal history | Gov: discretionary denial not reviewable absent colorable legal/constitutional claim | Court: No colorable legal/constitutional error shown; denial not reviewable here |
Key Cases Cited
- Weiland v. Lynch, 835 F.3d 207 (2d Cir. 2016) (construing near‑identical NY statute as an aggravated felony)
- Moncrieffe v. Holder, 569 U.S. 184 (categorical approach for matching state crimes to federal definitions)
- X‑Citement Video, Inc. v. United States, 513 U.S. 64 (knowledge element of § 2252 extends to knowing performers were minors)
- Mathis v. United States, 136 S. Ct. 2243 (categorical approach focuses on statutory elements)
- Torres v. Lynch, 136 S. Ct. 1619 (federal jurisdictional elements may be ignored under categorical analysis)
- Descamps v. United States, 570 U.S. 254 (courts look only to statutory definitions/elements under categorical approach)
- Santana‑Felix v. Barr, 924 F.3d 51 (standard of review: de novo for whether a conviction is an aggravated felony)