975 F.3d 188
2d Cir.2020Background
- Petitioner Nelson N. Rodriguez, an LPR from El Salvador, pleaded guilty in 2010 to sexual abuse in the first degree (N.Y. Penal Law § 130.65(3)) and to endangering the welfare of a child (§ 260.10(1)).
- § 130.65(3) criminalizes "subjecting another person to sexual contact" when the other person is less than eleven years old; § 130.00(3) defines "sexual contact" as touching "for the purpose of gratifying sexual desire."
- DHS charged Rodriguez as removable under INA § 101(a)(43)(A)/8 U.S.C. § 1227(a)(2)(A)(iii) as having been convicted of an aggravated felony: "sexual abuse of a minor."
- An IJ and the BIA concluded the § 130.65(3) conviction qualified as INA "sexual abuse of a minor;" Rodriguez petitioned for review arguing the New York statute is categorically broader than the INA offense.
- The Second Circuit reviewed de novo under the categorical/modified categorical approaches and applied Chevron deference to the BIA’s construction of "sexual abuse of a minor."
- The court concluded § 130.65(3) requires a victim under eleven and touching "for the purpose of gratifying sexual desire," which fits within the BIA’s broad construction of the INA term, and dismissed the petition under the jurisdictional limits for aggravated-felony cases.
Issues
| Issue | Plaintiff's Argument (Rodriguez) | Defendant's Argument (Barr/DHS) | Held |
|---|---|---|---|
| Whether a conviction under N.Y. Penal Law § 130.65(3) is an INA aggravated felony as "sexual abuse of a minor" | § 130.65(3) criminalizes conduct (e.g., certain non-listed touching or a kiss) that falls outside the INA/BIA definition, so it is categorically broader and cannot qualify as an aggravated felony | The BIA’s broadly framed definition of "sexual abuse of a minor" (guided by 18 U.S.C. § 3509 and common usage) encompasses the conduct criminalized by § 130.65(3) | Held: § 130.65(3) does not criminalize conduct beyond the INA definition as construed by the BIA; conviction qualifies as an aggravated felony |
| Whether the BIA’s construction of "sexual abuse of a minor" merits Chevron deference | Implicit: BIA’s broad reading unfairly expands aggravated-felony removability | BIA’s interpretation is reasonable guidance for the INA term and has been previously accorded deference | Held: Court applies Chevron deference to the BIA’s flexible, broad construction |
| Remedy/jurisdictional consequence once conviction qualifies as aggravated felony | Rodriguez sought review of BIA removal finding | Government argued removal stands and jurisdiction is limited | Held: Because the conviction is an aggravated felony, the petition is dismissed under 8 U.S.C. § 1252(a)(2)(C)/(D) (jurisdiction limited to questions of law) |
Key Cases Cited
- James v. Mukasey, 522 F.3d 250 (2d Cir. 2008) (discussing scope of New York "sexual contact" and BIA definition guidance)
- Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001) (accepting BIA’s broad construction of "sexual abuse of a minor")
- Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d 119 (2d Cir. 2011) (New York statute criminalizing authorization of sexual performance of a child falls within INA "sexual abuse of a minor")
- Flores v. Holder, 779 F.3d 159 (2d Cir. 2015) (applying categorical approach in defining aggravated-felony predicates)
- Moncrieffe v. Holder, 569 U.S. 184 (U.S. 2013) (explaining categorical approach principles)
- People v. Teicher, 52 N.Y.2d 638 (N.Y. 1981) (interpreting New York "sexual contact" requires purpose of sexual gratification)