14-3786-ag
MacTaggart v. Lynch


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 25th day of August, two thousand fifteen.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 RICHARD C. WESLEY,
                                 Circuit Judges.
----------------------------------------------------------------------
CAMERON ANDREW MacTAGGART,
                                 Petitioner,

                        v.                                                No. 14-3786-ag

LORETTA E. LYNCH, United States Attorney General,
                                 Respondent.
----------------------------------------------------------------------

APPEARING FOR PETITIONER:                        ERIN I. O’NEIL-BAKER, Hartford Legal
                                                 Group LLC, Hartford, Connecticut.

APPEARING FOR RESPONDENT:                        GREG D. MACK, Senior Litigation Counsel,
                                                 Office of Immigration Litigation (Benjamin C.
                                                 Mizer, Principal Deputy Assistant Attorney
                                                 General, Civil Division; Terri J. Scadron,
                                                 Assistant Director, Office of Immigration
                                                 Litigation, on the brief), United States
                                                 Department of Justice, Washington, D.C.



                                                     1
      UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DISMISSED.

      Petitioner Cameron Andrew MacTaggart, a native of Hong Kong and citizen of

Australia, seeks review of a September 8, 2014 decision of the BIA affirming the March

13, 2014 decision of an Immigration Judge (“IJ”) denying MacTaggart’s application for

cancellation of removal and ordering him removed based on his commission of an

aggravated felony. See In re Cameron Andrew MacTaggart, No. A019 374 331 (B.I.A.

Sept. 8, 2014), aff’g No. A019 374 331 (Immig. Ct. Hartford, CT Mar. 13, 2014); see

also 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). MacTaggart argues that his

prior crime of conviction does not qualify as an aggravated felony. Our jurisdiction to

review constitutional claims and questions of law pertaining to removal orders extends to

“whether a specific conviction constitutes an aggravated felony.” Pascual v. Holder,

707 F.3d 403, 404 (2d Cir. 2013); see Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d

119, 121 (2d Cir. 2011) (explaining that if “conviction is an aggravated felony, we must

dismiss the petition for lack of jurisdiction; if not, we may exercise jurisdiction and

vacate the order of removal”).

      Under the circumstances of this case, we review the IJ’s decision as modified by

the BIA, including the agency’s conclusion that MacTaggart’s conviction categorically

constitutes an aggravated felony “crime of violence,” 8 U.S.C. § 1101(a)(43)(F), but

without the IJ’s conclusion (not addressed by the BIA) that it also categorically

constitutes an aggravated felony “sexual abuse of a minor,” id. § 1101(a)(43)(A). See

                                           2
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We assume

the parties’ familiarity with the facts and the record of prior proceedings, which we

reference only as necessary to explain our decision to dismiss the petition.

       Aggravated felonies include, inter alia, any “crime of violence” punishable by at

least one year’s imprisonment, 8 U.S.C. § 1101(a)(43)(F), which includes felony offenses

that, by their nature, involve “a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense,” 18 U.S.C.

§ 16(b).   To determine whether a state conviction is for an aggravated felony, we

employ a “categorical approach,” which asks “whether the state statute defining the crime

of conviction categorically fits within the generic federal definition.” Moncrieffe v.

Holder, 133 S. Ct. 1678, 1684 (2013) (internal quotation marks omitted).       Toward this

end, we examine “the generic elements of the offense of conviction.”           Richards v.

Ashcroft, 400 F.3d 125, 128 (2d Cir. 2005). If the statute at issue criminalizes conduct

that falls outside the federal definition, the crime is not an aggravated felony. See id.;

accord Prus v. Holder, 660 F.3d 144, 146 (2d Cir. 2011).            Under the categorical

approach, “the singular circumstances of an individual petitioner’s crimes should not be

considered, and only the minimum criminal conduct necessary to sustain a conviction

under a given statute is relevant.” Pascual v. Holder, 707 F.3d at 405 (internal quotation

marks omitted); see Moncrieffe v. Holder, 133 S. Ct. at 1684–85.

       MacTaggart was convicted under Conn. Gen. Stat. § 53-21(a)(2), which states as

follows:



                                             3
       Any person who . . . has contact with the intimate parts, as defined in
       section 53a-65, of a child under the age of sixteen years or subjects a child
       under sixteen years of age to contact with the intimate parts of such person,
       in a sexual and indecent manner likely to impair the health or morals of
       such child . . . shall be guilty of . . . a class B felony . . . .

We have previously held that a violation of § 53-21(a)(2) qualifies as a crime of violence

under 18 U.S.C. § 16(b) and, thus, constitutes an aggravated felony pursuant to 8 U.S.C.

§ 1101(a)(43)(F). See Dos Santos v. Gonzales, 440 F.3d 81, 82 (2d Cir. 2006). Dos

Santos reasoned that the child victim’s inability to consent and likely inability to fend off

the use of force created an inherent risk that violent force could be used to ensure

compliance. See id. at 84–85.

       MacTaggart contends that Dos Santos is no longer controlling for two reasons.

First, he argues that Dos Santos did not apply the categorical approach because the court

there considered the particular facts supporting conviction, which is precluded by

subsequent authority. See Moncrieffe v. Holder, 133 S. Ct. 1678; Carachuri-Rosendo v.

Holder, 560 U.S. 563 (2010); Johnson v. United States, 559 U.S. 133 (2010).

MacTaggart misreads Dos Santos, which recounts the facts of the case only in the

background section of the opinion, see Dos Santos v. Gonzales, 440 F.3d at 82–83,

without relying on those facts in conducting a categorical analysis of the statute, see id. at

83–86. Thus, Dos Santos’s determination that § 53-21(a)(2) categorically defines an

aggravated felony remains controlling.




                                              4
       Second, MacTaggart argues that an amendment to the statute’s definition of

“intimate parts”1—two months after our Dos Santos decision—broadened the conduct

proscribed to allow conviction for mere contact with a child’s urine, which requires no

physical contact with a child so as to give rise to the substantial risk of violent force

identified in Dos Santos.2 We are not persuaded.

       As the Supreme Court has recently reiterated, the categorical approach’s “focus on

the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal

imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that falls outside the generic

definition.’”   Moncrieffe v. Holder, 133 S. Ct. at 1684–85 (quoting Gonzales v.

Duenas-Alvarez, 549 U.S. 183, 193 (2007)); see Dos Santos v. Gonzales, 440 F.3d at 84.

MacTaggart has not made such a showing of probability. Certainly, he identifies no

case in which § 53-21(a)(2) has been enforced against an individual for touching the

1
  The term “intimate parts” is now defined as “the genital area or any substance emitted
therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or
breasts.” Conn. Gen. Stat. § 53a-65.
2
  The government’s contention that we lack jurisdiction to consider this argument under
8 U.S.C. § 1252(d)(1) because MacTaggart failed to exhaust it before the agency is
defeated by our precedent. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119–
22 (2d Cir. 2006) (concluding that § 1252(d)(1) requires exhaustion only of remedies,
while exhaustion of arguments is required only by judicial doctrine). Nor has
MacTaggart forfeited the issue under judicial doctrine, which does not bar our
consideration of a “specific, subsidiary legal argument” that was not raised below,
“particularly one that is purely legal and falls outside the [agency’s] traditional area of
expertise.” Gill v. INS, 420 F.3d 82, 87 (2d Cir. 2005). MacTaggart argued before the
agency that his conviction was not a crime of violence because the statute criminalizes a
broader array of conduct than does the federal definition, and we will therefore consider
his more specific subsidiary argument regarding the source of that alleged breadth.


                                             5
bodily fluids of a child in the absence of any contact with the child, nor does he cite any

case involving remotely similar facts. In any event, the statute proscribes only contact

“in a sexual and indecent manner likely to impair the health or morals of [the] child.”

Conn. Gen. Stat. § 53-21(a)(2). MacTaggart fails to indicate how this element could be

satisfied without the same concerns about inability to consent and risk of force that

animated our decision in Dos Santos. See Dos Santos v. Gonzales, 440 F.3d at 84–85.

Thus, the cited statutory amendment does not require reconsideration of our holding that

§ 53-21(a)(2) categorically defines a crime of violence under 18 U.S.C. § 16(b).

        Accordingly, because MacTaggart’s conviction is for an aggravated felony, we are

without jurisdiction to review his challenge to the agency’s denial of cancellation of

removal and order of removal, or to vacate and remand to allow the agency to consider

his eligibility for a waiver of removal under § 212(h) of the Immigration and Nationality

Act.3

        We have considered MacTaggart’s remaining arguments, and we conclude that

they are without merit. Accordingly, the petition for review is DISMISSED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




3
  We would decline to remand in any event. See Xiao Xing Ni v. Gonzales, 494 F.3d
260, 269–70 (2d Cir. 2007) (holding that inherent power to remand should not be
exercised when basis for request is to allow introduction of new evidence and agency
regulations provide reopening procedure for consideration of such evidence).

                                            6
