Alexander OOUCH, a.k.a. Alexander Stasha, a.k.a. Alexander Oush, Petitioner,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Eric H. Holder, Jr., in his capacity as Attorney General of the United States, Respondents.
United States Court of Appeals, Second Circuit.
*120 Frederick P. Korkosz, Pearson & Korkosz, Albany, NY, for Petitioner (on submission).
Stefanie Notarino Hennes, Office of Immigration Litigation, United States Department of Justice, Washington, DC (Tony West, Leslie McKay, and Kelly J. Walls on the brief), for Respondents (on submission).
Before: JACOBS, Chief Judge, RAGGI, Circuit Judge, RAKOFF, District Judge.[*]
DENNIS JACOBS, Chief Judge:
Petitioner Alexander Oouch, a native and citizen of Russia, was convicted of (inter alia) the use of a child in a sexual performance in violation of New York Penal Law ("N.Y.P.L.") § 263.05. Based on that conviction, the Department of Homeland Security issued a Notice to Appear, initiating removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii) for the aggravated felony of "sexual abuse of a minor" in 8 U.S.C. § 1101(a)(43)(A).[1] On June 1, 2009, an immigration judge determined he was removable and ineligible for cancellation of removal.
The Board of Immigration Appeals ("BIA") dismissed his appeal on October 23, 2009, applying the categorical approach set forth in Taylor v. United States,
Oouch filed a timely petition for our review, which presents a question of law: whether N.Y.P.L. § 263.05 constitutes an *121 "aggravated felony" for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). We dismiss the petition.
I
An alien who has committed an aggravated felony can be removed from the country upon the order of the Attorney General. See 8 U.S.C. § 1227(a)(2)(A)(iii). We lack jurisdiction to review any final order removing an alien who committed an aggravated felony covered in § 1227(a)(2)(A)(iii). See § 1252(a)(2)(C). We retain jurisdiction, however, to determine constitutional claims and questions of law that arise from BIA proceedings. See § 1252(a)(2)(D). Whether an offense is an aggravated felony for purposes of the immigration laws is a question of law. See Blake v. Gonzales,
One category of aggravated felony is "sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). Oouch was charged with removability on that basis. We therefore consider, de novo, whether a violation of N.Y.P.L. § 263.05 constitutes "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A), with Chevron deference as to the BIA's construal of the Immigration and Nationality Act ("INA"), see Joaquin-Porras v. Gonzales,
A
The BIA is charged with interpreting and enforcing the INA, including 8 U.S.C. § 1101(a)(43)(A). See § 1103(a)(1); 8 C.F.R. § 1003.1. The BIA's interpretation of the INA is entitled to the deference prescribed in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
The BIA analyzed and interpreted the term "sexual abuse of a minor" in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 994-96 (BIA 1999). In so doing, it consulted other federal statutes that define similar sex offenses. The narrow definition of "sexual abuse" in 18 U.S.C. §§ 2242, 2243, and 2246 was deemed inapposite because it required contact with the victim. Id. at 996. Instead, the BIA adopted the meaning of "sexual abuse" in 18 U.S.C. § 3509[2] to operate as a "guide in identifying the types of crimes [it] would consider to be sexual abuse of a minor." Id. The BIA adopted so broad and flexible a definition in view of the congressional intent to "expand the definition of an aggravated felony and to provide a comprehensive statutory scheme to cover crimes against children" *122 through the grounds of deportability added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546. Id. at 994, 996.
We have already held that this definition is entitled to Chevron deference. See Mugalli v. Ashcroft,
B
In assessing whether an alien's conviction renders him removable, we use a categorical approach that looks to the elements of the penal statute rather than the particulars of the alien's conduct. Taylor,
The inquiry gets complicated when a criminal statute proscribes several classes of criminal actssome of them grounds for removal, and some not. See Dulal-Whiteway v. U.S. Dep't of Homeland Sec.,
We must therefore consider whether N.Y.P.L. § 263.05 is divisible, by analyzing the discrete offenses independently. If they yield different results, the statute is divisible (and the additional steps under the modified categorical approach must be undertaken); otherwise, the statute is indivisible and our inquiry is complete.
II
Since the BIA has no interpretive responsibility over a state criminal statute, we review de novo its interpretation of the New York Penal Law. See Michel v. INS,
[i] A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof [ii] he employs, authorizes or induces a child less than seventeen years of age to engage in a sexual performance or [iii] being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.
We consider the general and parental clauses in turn.
A
As to the general clause, we consider whether the types of performances, the conduct that is criminalized, and the required mental state are all equivalent to or narrower than their corollaries in the BIA's interpretation.
A "sexual performance" under the N.Y.P.L. is one that exhibits "sexual conduct."[5]See § 263.00(1). Under the federal statute, "sexual abuse" entails "sexually explicit conduct." See 18 U.S.C. § 3509(a)(8).[6] Each category of "sexual conduct" under New York law is subsumed in the federal definition of "sexually explicit conduct."[7] The state law therefore does not cover any performances not covered by the federal definition of "sexually explicit conduct" from the BIA's interpretation.
Similarly, the conduct that triggers liability under the general clauseemploying, authorizing, or inducing[8]is subsumed in the broader range of prohibited actions in the federal statute.[9] Oouch argues that the state statutory text prohibits conduct that is not specifically included in the federal statutory text: to "authorize" a sexual performance. However, the BIA has cautioned that its reference to 18 U.S.C. § 3509(a) was intended as a guide *124 rather than a definitive standard. Rodriguez-Rodriguez, 22 I. & N. Dec. at 996. Section 3509(a) itself defines "sexual abuse" by non-exhaustive inclusion, dictating that "the term `sexual abuse' includes the employment, use. . . ." (emphasis added). Moreover, to "authorize" a child to engage in a sexual performance has the same effect as "employing" or "inducing" the child to perform because the law does not view minors as autonomous actors. A person in a position to "authorize" a child's conduct has a degree of control (other than as a parent, guardian, or legal custodian) tantamount to control by employment or inducement. It is the element of control that makes the performance more likely to occur when a defendant is offering or pimping the child as a participant. In view of these shared characteristics and the guidance from the list of prohibited actions in the federal statutory text, an act "authorizing" a child to engage in a sexual performance constitutes "sexual abuse of a minor" consistent with Congress's intent to define that term expansively and comprehensively. See Rodriguez-Rodriguez, 22 I. & N. Dec. at 994 (recognizing that Congress's intent in adding § 1101(a)(43)(A) was "to expand the definition of an aggravated felony and to provide a comprehensive statutory scheme to cover crimes against children").
We must also consider whether the mental state requirement of the general clause accords with the requirement in the federal statute. In Leocal v. Ashcroft, the Supreme Court concluded that a conviction under a Florida statute for causing bodily harm while driving under the influence could not constitute the aggravated felony of a "crime of violence."
The general clause of N.Y.P.L. § 263.05 has a heightened mental state requirement, because it follows directly the "knowing the character and content thereof" wording from the preliminary clause. This mental state is fully as stringent as the mental state implied by the actions enumerated in the federal statutory text.
Because the relevant attributes of the general clause (the types of performances, the conduct that is criminalized, and the required mental state) all cover an equivalent or narrower range of conduct than the BIA's interpretation, the general clause categorically constitutes "sexual abuse of a minor."
B
The parental clause is more complicated. The statute is ambiguous as to whether the requirement of "knowing the character and content thereof" also applies to the parental clause. See Gonzalez v. Ashcroft,
We conclude that the phrase "knowing the character and content thereof" applies as well to the parental clause. First, a reading of the parental clause in conjunction with the preliminary clause yields a coherent (if not exemplary) English sentence:
*125 A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof . . . being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.
Second, if the mental state requirement is read out of the parental clause, there would be serious constitutional concerns about felony liability for caretakers who were unaware of the nature of the performance consented to. Offenses that require no mens rea are disfavored, and some indicium of legislative intent for strict liability is generally required before dispensing with mens rea as an element. Staples v. United States,
Third, we disagree with the Gonzalez court's analysis. Gonzalez rejected the reading we adopt, reasoning that this interpretation penalizes only conduct already penalized by the general clause, thereby rendering the parental clause superfluous. See Gonzalez,
Fourth, although New York cases do not illuminate the requisite mental state for the parental clause, other state materials (in the margin[10]) suggest the "knowing the character and content thereof" standard applies. These sources counsel against recognizing a mens rea disparity in an unfamiliar state statute where none is required or recognized in practice.
Finally, even if the legislature intended the "knowing" requirement to apply only to the general clause, the act of "consent" in the parental clause presumes awareness of the nature of the performance: One cannot consent fully to a sexual performance if the nature of the performance is unknown. The Supreme Court reached a *126 similar conclusion in Leocal.[11]
Having established that the parental clause has a knowledge requirement equivalent or comparable to the general clause, a conviction under the parental clause is an aggravated felony for the same reasons as the general clause.
III
Oouch argues that the conduct criminalized by N.Y.P.L. § 263.05 is described more closely by the category of aggravated felony in 8 U.S.C. § 1101(a)(43)(I): offenses relating to child pornography. He asserts that § 263.05 does not categorically constitute a child pornography offense for purposes of 8 U.S.C. § 1101(a)(43)(I). This argument is irrelevant. The document that initiated Oouch's removal specified 8 U.S.C. § 1101(a)(43)(A) as the only basis for removal. The choice of grounds for removal is an unreviewable exercise of prosecutorial discretion. See 8 U.S.C. § 1252(g); Ali v. Mukasey,
CONCLUSION
The state statute, N.Y.P.L. § 263.05, is not divisible, and any conviction under it categorically constitutes "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A) for purposes of removal for an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Having concluded, under 8 U.S.C. § 1252(a)(2)(D), that N.Y.P.L. § 263.05 was properly interpreted as an aggravated felony, it follows that we lack jurisdiction to review the removability order. See § 1252(a)(2)(C). The petition for review is therefore dismissed.
NOTES
Notes
[*] The Honorable Jed S. Rakoff, District Judge, United States District Court for the Southern District of New York, sitting by designation.
[1] Oouch was also convicted of N.Y.P.L. § 263.16, Possessing a Sexual Performance by a Child, which could have been a ground for removability under 8 U.S.C. § 1101(a)(43)(I). The Notice to Appear, however, did not list the conviction as a ground for removal.
[2] The statute concerns the rights of child victims and child witnesses. 18 U.S.C. § 3509(a)(8) states:
[T]he term "sexual abuse" includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.
"Sexually explicit conduct" is defined further in § 3509(a)(9).
[3] Other circuits that have considered the issue have either expressly granted deference to Rodriguez-Rodriguez or have assumed that § 3509(a)(8) provides an appropriate definition of "sexual abuse of a minor." See, e.g., Gaiskov v. Holder,
[4] We have recently discussed three potential approaches without selecting one. See Lanferman v. Bd. of Immigration Appeals,
[5] "Sexual conduct" is defined as
actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.
See N.Y.P.L. § 263.00(3).
[6] "Sexually explicit conduct" is defined as:
[A]ctual or simulated
(A) sexual intercourse, including sexual contact in the manner of genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or of opposite sex; sexual contact means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any person;
(B) bestiality;
(C) masturbation;
(D) lascivious exhibition of the genitals or pubic area of a person or animal; or
(E) sadistic or masochistic abuse
See 18 U.S.C. § 3509(a)(9).
[7] To avoid a recursive definition, two subparts of sexual conductoral sexual conduct and anal sexual conductare defined by reference to N.Y.P.L. § 130.00(2). See § 263.00(7). These definitions in § 130.00(2) are covered by the corresponding terms described in 18 U.S.C. § 3509(a)(9)(A).
[8] The relevant text from N.Y.P.L. § 263.05:
A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than seventeen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance. (emphasis added)
[9] Section 3509(a)(8) states:
[T]he term "sexual abuse" includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children. (emphasis added)
[10] Practice commentary (written by a New York State judge) accompanying the statute indicates that the mental state applies across the entire statute. See William C. Donnino, Practice Commentary, appended to N.Y.P.L. § 263.00 (McKinney's 2008). Moreover, a model jury charge for the parental clause includes "knew the character and content of the performance" as an element. See Howard G. Leventhal, 2 Charges to Jury & Requests to Charge in Crim. Case in N.Y. § 70:33.
[11] It reasoned that, in light of the context and surrounding terms, the word "use" provided an implicit mens rea element, requiring a higher degree of intent than "negligent or merely accidental conduct."