     17-3519
     Acevedo v. Barr
 1
 2                                      In the
 3                          United States Court of Appeals
 4                             For the Second Circuit
 5
 6
 7                                        August Term 2019
 8
 9                                    Argued: August 20, 2019
10                                   Decided: December 3, 2019
11
12                                       Docket No. 17‐3519
13
14
15                     BRAULIO DURAN ACEVEDO,
16
17                                 Petitioner,
18
19                                               V.
20
21                     WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
22
23                                 Respondent,
24
25
26                         Appeal from the Board of Immigration Appeals
27
28
29   Before:           HALL and LIVINGSTON, Circuit Judges, and RESTANI.1
30
31           Petition for review of a decision of the Board of Immigration Appeals

     1Judge Jane A. Restani, of the United States Court of International Trade, sitting
     by designation.
                                             1
 1   affirming a decision by an immigration judge determining petitioner to be
 2   removable and ineligible for cancellation of removal.
 3
 4         Petitioner argues that his convictions for attempted oral or anal sexual
 5   conduct with a person under the age of fifteen and sexual contact with a person
 6   under the age of fourteen are not convictions constituting sexual abuse of a minor
 7   under the Immigration and Nationality Act. Because we conclude that the former
 8   of these convictions is sexual abuse of a minor, and thus an aggravated felony
 9   under the Immigration and Nationality Act, his petition for review is
10
11         DENIED.
12
13
14                                  ANDREA SÁENZ (Sophie Dalsimer on the brief),
15                                  Brooklyn Defender Services, Brooklyn, New York,
16                                  for Petitioner.
17
18                                  ARIC ANDERSON, Trial Attorney (Joseph H. Hunt,
19                                  Assistant Attorney General, Civil Division, Kohsei
20                                  Ugumori, Senior Litigation Counsel, on the brief)
21                                  Office of Immigration Litigation, Civil Division,
22                                  U.S. Department of Justice, Washington, D.C., for
23                                  Respondent.
24
25
26   JANE A. RESTANI, Judge:
27
28         Petitioner seeks relief from an order of the Board of Immigration Appeals

29   (“BIA”) affirming a decision by an Immigration Judge (“IJ”) finding that he is

30   removable for having been convicted of aggravated felonies under 8 U.S.C. §

31   1227(a)(2)(A)(iii). Because the court finds that Petitioner’s conviction under New

32   York Penal Law (“N.Y.P.L.”) §§ 110.00, 130.45 constitutes sexual abuse of a minor,

                                             2
 1   and thus is an aggravated felony for purposes of the Immigration and Nationality

 2   Act (“INA”), we DENY the petition for review.

 3                                    BACKGROUND

 4         Braulio Duran Acevedo is a lawful permanent resident from Mexico who

 5   has lived in the United States since December 1969. On May 19, 2015, Acevedo was

 6   convicted of attempted oral or anal sexual conduct with a person under the age of

 7   fifteen, N.Y.P.L. §§ 110.00, 130.45(1), and for sexual contact with a person under

 8   the age of fourteen, N.Y.P.L. § 130.60(2).

 9         Following Acevedo’s conviction and incarceration, the Department of

10   Homeland Security (“DHS”) served him with a Notice to Appear (“NTA”) and

11   detained him in immigration custody. Acevedo was found removable under three

12   provisions of the INA for conviction of: aggravated felonies involving sexual

13   abuse of a minor (“SAM”), 8 U.S.C. §§ 1101(a)(43)(A),1 1227(a)(2)(A)(iii); a crime

14   of child abuse, child neglect, or child abandonment, 8 U.S.C. § 1227(a)(2)(E)(i); and

15   two crimes involving moral turpitude not arising out of a single scheme of criminal

16   misconduct, 8 U.S.C. § 1227(a)(2)(A)(ii).



     1 Although neither the IJ nor the BIA cited 8 U.S.C. § 1101(a)(43)(U) (attempt) as
     well as 8 U.S.C. § 1101(a)(43)(A), it is clear from the body of the opinions that
     they understood an attempt crime was at issue.
                                                 3
 1         Because the IJ found that the convictions constituted aggravated felonies of

 2   SAM, Acevedo additionally was rendered ineligible for a hearing on his

 3   application for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). Acevedo

 4   appealed the decision to the BIA, which affirmed the ruling.2

 5         The BIA applied a categorical approach, considering the minimum conduct

 6   necessary to violate the state statutes under which Acevedo was convicted and

 7   determining whether such conduct falls outside the generic federal definition of

 8   SAM for the purpose of the INA, 8 U.S.C. § 1101(a)(43)(A). The BIA used the

 9   definition of “sexual abuse” found in 18 U.S.C. § 3509(a)(8) 3 as a guide in

10   identifying crimes that qualify as SAM, rejecting Acevedo’s argument that the

11   state statutes must be an identical match with the federal crime of SAM codified

12   in 18 U.S.C. § 2243.

13         The BIA also considered the Supreme Court’s ruling in Esquivel‐Quintana v.

14   Sessions, 137 S. Ct. 1562 (2017). The BIA determined that its holding in the instant


     2 The IJ also denied Acevedo protection under the Convention Against Torture.
     The BIA determined Acevedo did not meaningfully challenge this decision on
     appeal, and therefore deemed the issue waived. Acevedo does not challenge that
     holding.

     3 Section 3509 defines “Child Victims’ and Child Witnesses’ Rights” for purposes
     of federal criminal procedure. 18 U.S.C. § 3509.

                                              4
 1   case was not at odds with Esquivel‐Quintana because that case involved the limited

 2   consideration of whether sexual abuse of a minor for INA purposes requires a

 3   victim to be younger than sixteen in cases where a statutory rape offense is

 4   predicated solely on age of the participants. The BIA determined that Acevedo’s

 5   convictions under N.Y.P.L. §§ 110.00, 130.45(1) and 130.60(2)4 both categorically

 6   fit within the meaning of SAM and upheld the IJ’s decision barring Acevedo’s

 7   application for cancellation of removal.5

 8         Acevedo argues that the Supreme Court’s holding in Esquivel‐Quintana

 9   precludes the BIA from relying on 18 U.S.C. § 3509(a) as a “definitional guide” for

10   determining what conduct qualifies as an aggravated felony of SAM under 8

11   U.S.C. § 1101(a)(43)(A), § 1227(a)(2)(A)(iii). He insists that the decision requires the

12   use of 18 U.S.C. § 2243, a federal criminal provision for SAM, as the federal generic

13   definition of SAM. Acevedo also argues that his crimes of conviction are strict

14   liability crimes, and thus cannot constitute aggravated felonies, which, pursuant


     4 We do not address Petitioner’s arguments with respect to N.Y.P.L. § 130.60(2)
     as it is not necessary given our conclusion as to N.Y.P.L. §§ 110.00, 130.45(1).

     5 The BIA also upheld the determination by the IJ that Acevedo’s conviction
     under N.Y.P.L. § 130.60 constitutes a crime of child abuse under 8 U.S.C. §
     1227(a)(2)(E), and the denial of Acevedo’s request to continue the proceedings.
     Acevedo does not raise either issue here.

                                                 5
 1   to 18 U.S.C. § 2243, necessitate a more culpable mens rea to sustain a conviction.

 2   Accordingly, Acevedo argues that the failure of the BIA to address mens rea

 3   requires granting of his petition.

 4                   JURISDICTION AND STANDARD OF REVIEW

 5         This court has jurisdiction over questions of law that arise from BIA

 6   proceedings. 8 U.S.C. § 1252 (a)(2)(D). Because the BIA did not rely on the opinion

 7   of the IJ, but rather conducted its own legal analysis on the issues appealed, the

 8   court reviews the decision of the BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d

 9   Cir. 2005).

10         The court considers “[w]hether a conviction qualifies as a removable offense

11   under a stated provision of the INA” de novo. Mizrahi v. Gonzales, 492 F.3d 156, 157–

12   58 (2d Cir. 2007).

13                                        DISCUSSION
14
15           I.    The Categorical Approach

16         The INA provides that “[a]ny alien who is convicted of an aggravated felony

17   at any time after admission” to the United States is deportable. 8 U.S.C. §

18   1227(a)(2)(A)(iii). Further, an aggravated felony conviction renders an individual

19   ineligible for discretionary cancellation of removal. 8 U.S.C. § 1229b(a)(3). One


                                              6
 1   crime constituting an aggravated felony under the INA is SAM. 18 U.S.C. §

 2   1101(a)(43)(A). Both federal and state convictions for SAM may qualify as

 3   aggravated felonies. 18 U.S.C. § 1101(a)(43).

 4         To determine whether a conviction qualifies as an aggravated felony, we

 5   apply a categorical analysis. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013).. A

 6   categorical analysis looks at the state statute of conviction, not the specific facts of

 7   the crime. Id. Therefore, the court must determine if N.Y.P.L. §§ 110.00, 130.45(1)

 8   and 130.60(2) “categorically fit[] within the ‘generic’ federal definition of” the

 9   corresponding aggravated felony. Id. at 190 (citation omitted). A state conviction

10   is an “aggravated felony” under the INA only if the least of the acts criminalized

11   by the state statute fall within the generic federal definition of SAM. See Johnson v.

12   United States, 559 U.S. 133, 137 (2010).

13         The analysis here is twofold. First, the court must determine what

14   constitutes the generic federal definition of sexual abuse of a minor. Then, the

15   court must determine if the “least of the acts criminalized” by the relevant state

16   provisions falls within the generic federal definition of SAM. Esquivel‐Quintana,

17   137 S. Ct. at 1568.

18          II.   The Federal Definition of Sexual Abuse of a Minor


                                                7
 1         What constitutes “sexual abuse of a minor” is not defined by the INA.6 The

 2   INA also does not incorporate by reference any definition in the criminal code. The

 3   legislative history of the addition of SAM to the INA’s list of aggravated felonies

 4   is similarly unhelpful. Accordingly, the BIA finds “useful” guidance in the

 5   definition of “sexual abuse” found in a federal criminal procedure statute

 6   regarding “[t]he rights of child victims and child witnesses.” See In re Rodriguez‐

 7   Rodriguez, 22 I. & N. Dec. 991, 995 (B.I.A. 1999) (citing 18 U.S.C. § 3509(a)). That

 8   statutory provision defines sexual abuse as:

 9         [I]nclud[ing] the employment, use, persuasion, inducement,
10         enticement, or coercion of a child to engage in, or assist another
11         person to engage in, sexually explicit conduct or the rape,
12         molestation, prostitution, or other form of sexual exploitation of
13         children, or incest with children[.]
14
15   18 U.S.C. § 3509(a)(8). This court has previously granted deference under Chevron,

16   U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) to the BIA,

17   the agency charged with administering the INA, in its adoption of 18 U.S.C. §




     6 Congress added “sexual abuse of a minor” to the INA’s list of aggravated
     felonies in 1996 as part of comprehensive immigration reform. See Illegal
     Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104‐
     208 § 321(a)(1), 110 Stat. 3009‐546, 3009‐627 (1996) (codified as amended at 8
     U.S.C. § 1104(a)(43)).
                                                8
 1   3509(a)(8) as a guide in defining what constitutes SAM. See Mugalli v. Ashcroft, 258

 2   F.3d 52, 58–60 (2d Cir. 2001).

 3           The Supreme Court in Esquivel‐Quintana, however, avoided any issue of

 4   Chevron deference with respect to 18 U.S.C. § 3509(a)(8) by deciding that, for the

 5   purposes of that case, “the [INA], read in context, unambiguously forecloses the

 6   [BIA’s] interpretation” Esquivel‐Quintana, 137 S. Ct. at 1572 (noting that “[n]either

 7   the rule of lenity nor Chevron applie[d]”). Although the Court did not to the BIA’s

 8   use of 18 U.S.C. § 3509(a)(8) in that case, it also did not foreclose the BIA’s use of

 9   that statute in other instances. Accordingly, we conclude that our decision in

10   Mugalli to grant deference to the BIA in its use of 18 U.S.C. § 3509(a)(8) in

11   identifying which crimes serve as SAM under the INA survives Esquivel‐Quintana.

12   See Matthews v. Barr, 927 F.3d 606, 614–16 (2d Cir. 2019) (rejecting petitioner’s

13   argument that following Esquivel‐Quintana the court should reconsider affording

14   Chevron deference to the BIA’s interpretation of a “crime of child abuse” under the

15   INA).

16           Petitioner further argues that a heightened mens rea is required for an

17   offense to qualify as SAM. The relevant statute, 18 U.S.C. § 3509(a)(8), does not,

18   however, provide guidance as to the mens rea a defendant must possess for a


                                               9
 1   conviction to qualify as sexual abuse of a minor. Here, the BIA did not expressly

 2   analyze the mens rea required for a crime to qualify as SAM but found that the

 3   convictions at issue “both categorically fit within the meaning” of 18 U.S.C. §

 4   3509(a)(8). Previously, we have at least implicitly endorsed a heightened mens rea

 5   requirement in order for a crime to qualify as sexual abuse of a minor. See Oouch

 6   v. U.S. Dep’t of Homeland Sec., 633 F.3d 119, 124 (2d Cir. 2011) (noting that the

 7   “knowing” mental state required to satisfy a conviction under N.Y.P.L. § 263.05

 8   was “fully as stringent as the mental state implied by the actions enumerated in

 9   [18 U.S.C. § 3509(a)(8)]”). Because the INA itself and the relevant legislative history

10   do not provide an answer as to what mens rea Congress intended to satisfy the

11   INA’s aggravated felony of SAM, we consider the structure of the INA, the

12   inherent egregious nature of an aggravated felony, and closely‐related statutes. See

13   Esquivel‐Quintana, 137 S. Ct. at 1569–70.

14         As noted in Esquivel‐Quintana, the INA lists “sexual abuse of a minor”

15   alongside murder and rape, which are “among the most heinous crimes [the INA]

16   defines as aggravated felonies.” 137 S. Ct. at 1570. Itfollows that “[t]he structure of

17   the INA therefore suggests that sexual abuse of a minor encompasses only

18   especially egregious felonies.” Id. When considering the mens rea required for a


                                                 10
 1   crime to serve as “sexual abuse of a minor,” the court must keep in mind this

 2   categorization. This approach comports with the Supreme Court’s decision on the

 3   similar question of why a crime of violence under 18 U.S.C. § 16(a) requires a

 4   higher mens rea than “merely accidental or negligent conduct.” Leocal v. Ashcroft,

 5   543 U.S. 1, 2 (2004). The Court in Leocal stressed the importance of considering the

 6   mens rea required in the light of the egregious nature of the crime and the

 7   consequences of attaching the designation “crime of violence” to a particular

 8   conviction. See id. at 11 (noting that interpreting the crime of violence to encompass

 9   crimes satisfied by a lesser mens rea “would blur the distinction between the

10   ‘violent’ crimes Congress sought to distinguish for heightened punishment and

11   other crimes.”). Here too, a conviction for “sexual abuse of a minor” is categorized

12   as an aggravated felony under the INA, which not only renders an individual

13   removable, but prevents an otherwise eligible alien from seeking cancellation of

14   removal. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3).       Given the inherent

15   seriousness of an aggravated felony and the harsh immigration consequences that

16   come from that categorization, a knowing mens rea is required.




                                              11
 1           This conclusion is further supported by a closely related statute, 18 U.S.C. §

 2   2243(a),7 a federal substantive statute that requires a knowing mens rea to convict

 3   an individual for sexual abuse of a minor. See Esquivel‐Quintana, 137 S. Ct. at 1570;

 4   18 U.S.C. § 2243(a). Importantly, this mens rea applies to the conduct at issue, not

 5   to the age of the victim. See 18 U.S.C. § 2243(d) (providing that the “Government

 6   need not prove that the defendant knew .            .   . the age of the other person

 7   engaging in the sexual act”);8 see also United States v. Robinson, 702 F.3d 22, 33 (2d

 8   Cir. 2012) (noting that “[c]ourts have uniformly interpreted [Section 2243 and

 9   another similar federal statute] as disclaiming mens rea requirements with respect

10   to the victim’s age”)(collecting cases).

11           This understanding aligns with the categorization of SAM as an aggravated

12   felony, Supreme Court guidance on similar issues, relevant federal statutes, and

13   decisions of the other Courts of Appeals that have directly opined on this question,

14   all of which have required that a perpetrator act with either knowledge or purpose.

15   See, e.g., Bedolla‐Zarate v. Sessions, 892 F.3d 1137, 1141 (10th Cir. 2018) (sexual abuse



     7 As noted in Esquivel‐Quintana, the court turns to “§ 2243(a) for evidence of the
     meaning of sexual abuse of a minor, but not as providing the complete or
     exclusive definition.” Esquivel‐Quintana, 137 S. Ct. at 1571.

     8   See infra discussion of affirmative defenses.
                                                 12
 1   of a minor under the INA requires a mens rea of knowledge); Larios‐Reyes v. Lynch,

 2   843 F.3d 146, 159 (4th Cir. 2016) (finding that sexual abuse of a minor requires a

 3   perpetrator to act with “a purpose associated with sexual gratification”) (internal

 4   quotation marks and citation omitted); United States v. Martinez, 786 F.3d 1227,

 5   1231 (9th Cir. 2015) (sexual abuse of a minor requires knowledge); United States v.

 6   Padilla‐Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001) (a perpetrator must act with

 7   purpose).

 8         III.   Whether N.Y.P.L. § 130.45 constitutes sexual abuse of a minor
 9                under the INA
10         We now address whether N.Y.P.L. § 130.45 has the requisite mens rea

11   element to serve as a predicate crime of SAM and whether all conduct criminalized

12   by the statute is subsumed within the federal definition. By its text, the statute does

13   not indicate the mens rea required for conviction:

14         A person is guilty of criminal sexual act in the second degree when:
15
16         1. being eighteen years old or more, he or she engages in oral sexual
17         conduct 9 or anal sexual conduct 10 with another person less than
18         fifteen years old;


     9  Oral sexual conduct is “conduct between persons consisting of contact
     between the mouth and the penis, the mouth and the anus, or the mouth and the
     vulva or vagina.” N.Y.P.L. § 130.00(2)(a).

     10Anal sexual conduct is “conduct between persons consisting of contact
     between the penis and anus.” N.Y.P.L. § 130.00(2)(b).
                                            13
 1
 2   N.Y.P.L. § 130.45(1).
 3
 4         The government argues that, together, N.Y.P.L. § 110.00 and § 130.45(1)

 5   include a mens rea element because N.Y.P.L. § 110.00 is an attempt statute, and

 6   attempt crimes are definitionally intentional. The court need not address this

 7   argument because it is clear that the conduct criminalized under N.Y.P.L. § 130.45

 8   cannot, under any realistic assessment, occur without the perpetrator’s knowledge

 9   or intent to commit the criminalized sexual conduct.

10         New York law makes clear that “[a] statute defining a crime, unless clearly

11   indicating a legislative intent to impose strict liability, should be construed as

12   defining a crime of mental culpability.” N.Y.P.L. § 15.15(2). Although Petitioner is

13   likely correct that N.Y.P.L. § 130.45 is a strict liability crime in some sense,11 he


     11 Acevedo does not reference legislative history supporting the notion that §
     130.45 is a strict liability crime, and the court finds nothing definitive in its
     search, but New York courts have found that similar statutes define strict liability
     offenses. See People v. Reyes, 908 N.Y.S.2d 14, 16–17 (N.Y. App. Div. 2010)
     (holding that a conviction for N.Y.P.L. § 130.55, sexual abuse in the third degree,
     where lack of consent was based on victim’s age under N.Y.P.L. § 130.05(3)(a),
     was a strict liability crime); People v. Mormile, 812 N.Y.S.2d 524, 525 (N.Y. App.
     Div. 2006) (finding that N.Y.P.L. § 130.30(1), engaging in sexual intercourse with
     a person less than fifteen years old while being over the age of eighteen, is a strict
     liability offense). Although there is not a definitive case on whether § 130.45
     specifically is a strict liability statute, given that other very similar crimes are
     considered strict liability crimes, the court will assume the same for the statute at

                                              14
 1   neither points to a single case nor posits any realistic hypothetical situation in

 2   which an individual could be convicted under this provision without knowingly

 3   committing the sexual act. Likewise, we can think of no factual situation that could

 4   realistically lead to conviction under this statute that would involve a perpetrator

 5   with a less than “knowing” mens rea as to the conduct involved. 12 The categorical

 6   approach “is not an invitation to apply legal imagination to the state offense; there

 7   must be a realistic probability, not a theoretical possibility, that the State would

 8   apply its statute to conduct that falls outside the generic definition of a crime.”

 9   Moncrieffe, 569 U.S. at 191 (internal quotation marks and citation omitted). As we

10   have stated, “each category of sexual conduct under New York law is subsumed

11   in the federal definition of sexually explicit conduct.” Oouch, 633 F.3d at 123

12   (internal quotation marks omitted).

13          Petitioner also claims that New York’s lack of a mistake‐of‐age defense

14   precludes the court’s holding. See N.Y.P.L. § 15.20(3) (noting that knowledge of a




     issue here, at least with regard to the victim’s age.

     12 Although neither of Acevedo’s convictions allows for an affirmative mistake
     of age defense, an individual could still assert other defenses to this charge such
     as infancy, N.Y.P.L. §30.00; duress, N.Y.P.L. § 40.00; entrapment, N.Y.P.L. § 40.05;
     renunciation, N.Y.P.L. § 40.10; or mental disease or defect, N.Y.P.L. § 40.15.

                                               15
 1   child’s age is neither an element nor a defense to the crimes at issue). The federal

 2   crime of sexual abuse of a minor does allow for a mistake of age affirmative

 3   defense.13 See 18 U.S.C. § 2243(c) (allowing a reasonable mistake of age defense in

 4   situations where the perpetrator believed that the victim was sixteen, when the

 5   victim was at least twelve). But to determine whether the generic meaning of

 6   sexual abuse of a minor requires such a defense, the court may look to state

 7   criminal codes. See Esquivel‐Quintana, 137 S. Ct. at 1571 (collecting state criminal

 8   codes in assessing the generic age of consent); Taylor, 495 U.S. at 598 (looking to

 9   state criminal codes to determine the generic definition of burglary). Shortly after

10   the addition of “sexual abuse of a minor” to the list of aggravated felonies in the

11   INA in 1996, a mistake of age defense to statutory rape was not available in the

12   majority of jurisdictions. See Colin Campbell, Annotation, Mistake or Lack of

13   Information as to Victim’s Age as Defense to Statutory Rape, 46 A.L.R. 5th 499, ¶ 3

14   (1997) (noting that courts in thirty‐four states have ruled that mistake of age is not

15   a defense to statutory rape); see also Catherine L. Carpenter, On Statutory Rape,


     13 The Supreme Court declined to adopt 18 U.S.C. § 2243 in its entirety as the
     definition of SAM given that the INA does not cross‐reference that definition in
     defining sexual abuse of a minor, as it does with other aggravated felonies and
     because to do so “would categorically exclude the statutory rape laws of most
     States” as section 2243(a) requires a four‐year age difference that many states do
     not require. Esquivel‐Quintana, 137 S. Ct. at 1571.
                                              16
 1   Strict Liability, and the Public Welfare Offense Model, 53 Am. U. L. Rev. 313, 385–91

 2   (2003) (noting that statutory rape laws in twenty‐nine states and the District of

 3   Columbia impose strict liability, typically without a mistake of age defense). To

 4   find that a lack of mistake of age defense puts a state statute outside the bounds of

 5   SAM under the INA would be to exclude the majority of state crimes for statutory

 6   rape that existed at the time the statute was broadened, a result we conclude is

 7   directly at odds with Congress’s intent in adding SAM to the list of INA

 8   aggravated felonies. See Esquivel‐Quintana, 137 S. Ct. at 1571 (rejecting an

 9   interpretation of SAM that would exclude the majority of state statutory rape

10   laws).

11                                     CONCLUSION
12
13            For the foregoing reasons, the court finds that Acevedo’s conviction under

14   N.Y.P.L. § 130.45 is properly classified as sexual abuse of a minor under the INA

15   as it does not encompass more conduct than the generic federal definition and

16   cannot realistically result in an individual’s conviction for conduct made with a

17   less than knowing mens rea.




                                              17
