835 F.3d 207
2d Cir.2016Background
- Thomas Weiland, a German national and lawful permanent resident since 1970, was convicted in New York (2004) under N.Y. Penal Law § 263.11 for possession of an obscene sexual performance by a child.
- DHS initiated removal proceedings treating the conviction as an aggravated felony under INA § 1101(a)(43), which incorporates federal child‑pornography offenses in 18 U.S.C. § 2252.
- The federal analogue, 18 U.S.C. § 2252(a)(4), contains jurisdictional elements (e.g., interstate commerce or federal property) that New York’s statute lacks.
- Weiland argued his state conviction is not an offense “described in” § 2252 because it lacks the federal interstate‑commerce jurisdictional element.
- The Immigration Judge and BIA rejected Weiland’s argument, relying on prior BIA precedent; the Second Circuit held the appeal in abeyance pending the Supreme Court’s decision in Torres v. Lynch.
- After Torres v. Lynch held that federal jurisdictional elements may be ignored for § 1101(a)(43) purposes, the Second Circuit denied Weiland’s petition for review.
Issues
| Issue | Petitioner’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether a state child‑pornography conviction is an offense “described in” 18 U.S.C. § 2252 for INA § 1101(a)(43) purposes | Weiland: New York § 263.11 lacks the federal interstate‑commerce jurisdictional element in § 2252(a)(4), so it is not an offense “described in” § 2252 | Government: The INA applies federal‑analog offenses whether under state or federal law; jurisdictional element may be ignored | Held: Denied — under Torres v. Lynch the federal jurisdictional element may be ignored; New York conviction qualifies as an offense “described in” § 2252 |
Key Cases Cited
- Torres v. Lynch, 136 S. Ct. 1619 (2016) (Supreme Court: federal jurisdictional elements may be disregarded when determining whether a state offense is an aggravated felony under INA § 1101(a)(43))
- Torres v. Holder, 764 F.3d 152 (2d Cir. 2014) (Second Circuit decision addressing whether state arson statute is "described in" a federal analogue and deferring to BIA interpretation)
- Bautista v. Attorney Gen. of U.S., 744 F.3d 54 (3d Cir. 2014) (Third Circuit vacated BIA decision on similar issue; later abrogated by Supreme Court in Torres v. Lynch)
- In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144 (2d Cir. 2015) (discusses binding effect of circuit precedent and exception for intervening Supreme Court decisions)
- Wojchowski v. Daines, 498 F.3d 99 (2d Cir. 2007) (explains when intervening Supreme Court authority permits departure from circuit precedent)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for deferring to reasonable agency interpretations)