     09-4834-ag
     Oouch v. Holder


 1                       UNITED STATES COURT OF APPEALS
 2
 3                          FOR THE SECOND CIRCUIT
 4
 5                             August Term, 2010
 6
 7
 8   (Submitted: September 2, 2010          Decided: January 28, 2011)
 9
10                           Docket No. 09-4834-ag
11
12   - - - - - - - - - - - - - - - - - - - - -x
13
14   ALEXANDER OOUCH, a.k.a. ALEXANDER STASHA, a.k.a. ALEXANDER
15   OUSH,
16
17                     Petitioner,
18
19               - v.-
20
21   UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ERIC H.
22   HOLDER, JR., in his capacity as Attorney General of the
23   United States,
24
25                     Respondents.
26
27   - - - - - - - - - - - - - - - - - - - -x
28

29         Before:          JACOBS, Chief Judge, RAGGI, Circuit
30                          Judge, RAKOFF, District Judge.*
31
32         Petitioner seeks review of an October 23, 2009 decision

33   of the Board of Immigration Appeals, dismissing his appeal

34   from a June 1, 2009 decision of an immigration judge deeming



           *
            The Honorable Jed S. Rakoff, District Judge, United
     States District Court for the Southern District of New York,
     sitting by designation.
 1   him removable as an aggravated felon under 8 U.S.C.

 2   § 1227(a)(2)(A)(iii) and denying cancellation of removal,

 3   for his conviction of use of a child in a sexual performance

 4   in violation of N.Y. Penal Law § 263.05.    DISMISSED.

 5                                 FREDERICK P. KORKOSZ, Pearson &
 6                                 Korkosz, Albany, NY, for
 7                                 Petitioner (on submission).
 8
 9                                 STEFANIE NOTARINO HENNES, Office
10                                 of Immigration Litigation,
11                                 United States Department of
12                                 Justice, Washington, DC (Tony
13                                 West, Leslie McKay, and Kelly J.
14                                 Walls on the brief) , for
15                                 Respondents (on submission).
16
17   DENNIS JACOBS, Chief Judge:
18
19       Petitioner Alexander Oouch, a native and citizen of

20   Russia, was convicted of (inter alia) the use of a child in

21   a sexual performance in violation of New York Penal Law

22   (“N.Y.P.L.”) § 263.05.   Based on that conviction, the

23   Department of Homeland Security issued a Notice to Appear,

24   initiating removal proceedings under 8 U.S.C.

25   § 1227(a)(2)(A)(iii) for the aggravated felony of “sexual

26   abuse of a minor” in 8 U.S.C. § 1101(a)(43)(A). 1   On June 1,


          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
1    2009, an immigration judge determined he was removable and

2    ineligible for cancellation of removal.

3        The Board of Immigration Appeals (“BIA”) dismissed his

4    appeal on October 23, 2009, applying the categorical

5    approach set forth in Taylor v. United States, 495 U.S. 575

6    (1990), to determine that the conviction was an aggravated

7    felony.    The BIA reasoned that, although N.Y.P.L. § 263.05

8    is divisible, all divisions constitute sexual abuse of a

9    minor, so that any conviction under the statute constitutes

10   an aggravated felony.

11       Oouch filed a timely petition for our review, which

12   presents a question of law: whether N.Y.P.L. § 263.05

13   constitutes an “aggravated felony” for purposes of 8 U.S.C.

14   § 1227(a)(2)(A)(iii).    We dismiss the petition.

15

16                                  I

17       An alien who has committed an aggravated felony can be

18   removed from the country upon the order of the Attorney

19   General.    See 8 U.S.C. § 1227(a)(2)(A)(iii).    We lack

20   jurisdiction to review any final order removing an alien who

21   committed an aggravated felony covered in

22   § 1227(a)(2)(A)(iii).    See § 1252(a)(2)(C).    We retain


                                    3
1    jurisdiction, however, to determine constitutional claims

2    and questions of law that arise from BIA proceedings.     See

3    § 1252(a)(2)(D).   Whether an offense is an aggravated felony

4    for purposes of the immigration laws is a question of law.

5    See Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir. 2007).

6    We review these legal and constitutional issues de novo.

7    Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007).

8        One category of aggravated felony is “sexual abuse of a

9    minor.”   8 U.S.C. § 1101(a)(43)(A).   Oouch was charged with

10   removability on that basis.    We therefore consider, de novo,

11   whether a violation of N.Y.P.L. § 263.05 constitutes “sexual

12   abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), with

13   Chevron deference as to the BIA’s construal of the

14   Immigration and Nationality Act (“INA”), see Joaquin-Porras

15   v. Gonzales, 435 F.3d 172, 178 (2d Cir. 2006).    The inquiry

16   determines our jurisdiction: If Oouch’s conviction is an

17   aggravated felony, we must dismiss the petition for lack of

18   jurisdiction; if not, we may exercise jurisdiction and

19   vacate the order of removal.    See Sui v. INS, 250 F.3d 105,

20   110 (2d Cir. 2001).

21

22                                  A



                                    4
1        The BIA is charged with interpreting and enforcing the

2    INA, including 8 U.S.C. § 1101(a)(43)(A).     See § 1103(a)(1);

3    8 C.F.R. § 1003.1.    The BIA’s interpretation of the INA is

4    entitled to the deference prescribed in Chevron, U.S.A.,

5    Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

6    837 (1984).    Joaquin-Porras, 435 F.3d at 178; Sui, 250 F.3d

7    at 111-12.    Congress provided no further definition of the

8    term “sexual abuse of a minor” in § 1101(a)(43)(A).     Since

9    the term is not self-defining and is of uncertain reach, we

10   cannot conclude in this case that the intent of Congress is

11   manifest.

12       The BIA analyzed and interpreted the term “sexual abuse

13   of a minor” in In re Rodriguez-Rodriguez, 22 I. & N. Dec.

14   991, 994-96 (BIA 1999).    In so doing, it consulted other

15   federal statutes that define similar sex offenses.     The

16   narrow definition of “sexual abuse” in 18 U.S.C. §§ 2242,

17   2243, and 2246 was deemed inapposite because it required

18   contact with the victim.    Id. at 996.   Instead, the BIA

19   adopted the meaning of “sexual abuse” in 18 U.S.C. § 3509 2


          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
                                     5
1    to operate as a “guide in identifying the types of crimes

2    [it] would consider to be sexual abuse of a minor.”   Id.

3    The BIA adopted so broad and flexible a definition in view

4    of the congressional intent to “expand the definition of an

5    aggravated felony and to provide a comprehensive statutory

6    scheme to cover crimes against children” through the grounds

7    of deportability added by the Illegal Immigration Reform and

8    Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

9    Div. C, 110 Stat. 3009-546.   Id. at 994, 996.

10       We have already held that this definition is entitled

11   to Chevron deference.   See Mugalli v. Ashcroft, 258 F.3d 52,

12   56 (2d Cir. 2001).   Oouch urges us to follow the Ninth

13   Circuit’s in banc decision to the contrary in Estrada-

14   Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (in

15   banc), which declined to give Chevron deference to

16   Rodriguez-Rodriguez in a case involving a statutory rape

17   statute.   But since Estrada-Espinoza is contrary to Mugalli,




                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).
                                    6
1    we adhere to our Circuit law. 3

2

3                                  B

4        In assessing whether an alien’s conviction renders him

5    removable, we use a categorical approach that looks to the

6    elements of the penal statute rather than the particulars of

7    the alien’s conduct.   Taylor, 495 U.S. at 602; Canada v.

8    Gonzales, 448 F.3d 560, 565 (2d Cir. 2006).   The inquiry is

9    whether “every set of facts violating a statute” satisfies

10   the criteria for removability; in effect, only the minimum

11   criminal conduct necessary for a conviction is relevant.

12   Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004).

13       The inquiry gets complicated when a criminal statute

14   proscribes several classes of criminal acts--some of them

15   grounds for removal, and some not.   See Dulal-Whiteway v.

16   U.S. Dep’t of Homeland Sec., 501 F.3d 116, 121-22 (2d Cir.



          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, 567 F.3d 832, 838 (7th Cir. 2009); Bahar v.
     Ashcroft, 264 F.3d 1309, 1312 (11th Cir. 2001). As it
     happens, the Ninth Circuit has retreated from its analysis,
     and has limited Estrada-Espinoza to statutory rape laws.
     See United States v. Medina-Villa, 567 F.3d 507, 515 (9th
     Cir. 2009).

                                   7
1    2007), abrogated on other grounds by Nijhawan v. Holder, 129

2    S. Ct. 2294, 2298 (2009).   For such a “divisible statute,”

3    the record of conviction may be reviewed under a modified

4    categorical approach to ascertain which class of criminal

5    act furnished the basis for the defendant’s conviction.

6    See, e.g., id. at 124-27.   We have not yet fixed on an

7    approach for determining when a statute is thus divisible. 4

8    There is no need to do that now, however; N.Y.P.L. § 263.05

9    is drafted as discrete offenses in a disjunctive list.     It

10   is settled in this Circuit that such structure establishes

11   divisibility, if one or more offenses in the list (but not

12   all) are grounds for removal.       See id. at 126.

13       We must therefore consider whether N.Y.P.L. § 263.05 is

14   divisible, by analyzing the discrete offenses independently.

15   If they yield different results, the statute is divisible

16   (and the additional steps under the modified categorical

17   approach must be undertaken); otherwise, the statute is

18   indivisible and our inquiry is complete.

19



          4
            We have recently discussed three potential approaches
     without selecting one. See Lanferman v. Bd. of Immigration
     Appeals, 576 F.3d 84, 90-92 (2d Cir. 2009); Dulal-Whiteway,
     501 F.3d at 126-28.

                                     8
1                                    II

2        Since the BIA has no interpretive responsibility over a

3    state criminal statute, we review de novo its interpretation

4    of the New York Penal Law.     See Michel v. INS, 206 F.3d 253,

5    262 (2d Cir. 2000).    Oouch was convicted under N.Y.P.L.

6    § 263.05, which consists of [i] a “preliminary clause,” [ii]

7    a “general clause,” and [iii] a “parental clause”:

 8              [i] A person is guilty of the use of a child in a
 9              sexual performance if knowing the character and
10              content thereof [ii] he employs, authorizes or
11              induces a child less than seventeen years of age
12              to engage in a sexual performance or [iii] being a
13              parent, legal guardian or custodian of such child,
14              he consents to the participation by such child in
15              a sexual performance.
16
17   We consider the general and parental clauses in turn.

18

19                                   A

20       As to the general clause, we consider whether the types

21   of performances, the conduct that is criminalized, and the

22   required mental state are all equivalent to or narrower than

23   their corollaries in the BIA’s interpretation.

24       A “sexual performance” under the N.Y.P.L. is one that

25   exhibits “sexual conduct .”5   See § 263.00(1).   Under the



          5
              “Sexual conduct” is defined as
                                     9
1   federal statute, “sexual abuse” entails “sexually explicit

2   conduct.”    See 18 U.S.C. § 3509(a)(8). 6   Each category of

3   “sexual conduct” under New York law is subsumed in the

4   federal definition of “sexually explicit conduct.” 7     The



                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 conduct--oral sexual conduct and anal sexual conduct
    --are 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).
                                    10
1    state law therefore does not cover any performances not

2    covered by the federal definition of “sexually explicit

3    conduct” from the BIA’s interpretation.

4         Similarly, the conduct that triggers liability under

5    the general clause--employing, authorizing, or inducing 8 --is

6    subsumed in the broader range of prohibited actions in the

7    federal statute. 9   Oouch argues that the state statutory

8    text prohibits conduct that is not specifically included in

9    the federal statutory text: to “authorize” a sexual

10   performance.    However, the BIA has cautioned that its

11   reference to 18 U.S.C. § 3509(a) was intended as a guide




          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)
                                    11
1    rather than a definitive standard.    Rodriguez-Rodriguez, 22

2    I. & N. Dec. at 996.    Section 3509(a) itself defines “sexual

3    abuse” by non-exhaustive inclusion, dictating that “the term

4    ‘sexual abuse’ includes the employment, use . . . .”

5    (emphasis added).    Moreover, to “authorize” a child to

6    engage in a sexual performance has the same effect as

7    “employing” or “inducing” the child to perform because the

8    law does not view minors as autonomous actors.    A person in

9    a position to “authorize” a child’s conduct has a degree of

10   control (other than as a parent, guardian, or legal

11   custodian) tantamount to control by employment or

12   inducement.   It is the element of control that makes the

13   performance more likely to occur when a defendant is

14   offering or pimping the child as a participant.     In view of

15   these shared characteristics and the guidance from the list

16   of prohibited actions in the federal statutory text, an act

17   “authorizing” a child to engage in a sexual performance

18   constitutes “sexual abuse of a minor” consistent with

19   Congress’s intent to define that term expansively and

20   comprehensively.    See Rodriguez-Rodriguez, 22 I. & N. Dec.

21   at 994 (recognizing that Congress’s intent in adding

22   § 1101(a)(43)(A) was “to expand the definition of an



                                    12
1    aggravated felony and to provide a comprehensive statutory

2    scheme to cover crimes against children”).

3        We must also consider whether the mental state

4    requirement of the general clause accords with the

5    requirement in the federal statute.    In Leocal v. Ashcroft,

6    the Supreme Court concluded that a conviction under a

7    Florida statute for causing bodily harm while driving under

8    the influence could not constitute the aggravated felony of

9    a “crime of violence.”   543 U.S. 1, 5-6 (2004).     It reasoned

10   that a “crime of violence” entailed a higher degree of

11   intent than mere negligent conduct, while the state statute

12   required no proof of any mental state.     Id.   Although the

13   decision hinged upon a specific interpretation of a “crime

14   of violence” rather than “sexual abuse of a minor,” it

15   counsels caution when a state statute has a lesser mental

16   state requirement.

17       The general clause of N.Y.P.L. § 263.05 has a

18   heightened mental state requirement, because it follows

19   directly the “knowing the character and content thereof”

20   wording from the preliminary clause.     This mental state is

21   fully as stringent as the mental state implied by the

22   actions enumerated in the federal statutory text.


                                   13
1           Because the relevant attributes of the general clause

2    (the types of performances, the conduct that is

3    criminalized, and the required mental state) all cover an

4    equivalent or narrower range of conduct than the BIA’s

5    interpretation, the general clause categorically constitutes

6    “sexual abuse of a minor.”

7

8                                   B

9           The parental clause is more complicated.   The statute

10   is ambiguous as to whether the requirement of “knowing the

11   character and content thereof” also applies to the parental

12   clause.    See Gonzalez v. Ashcroft, 369 F. Supp. 2d 442, 449-

13   51 (S.D.N.Y. 2005) (recognizing and analyzing ambiguity).

14   The Gonzalez opinion argued that the grammar of the statute

15   militated against the conclusion that the parental clause

16   requires awareness of the nature of the performance.     Id. at

17   454.    It followed that the statute criminalized conduct

18   beyond “sexual abuse of a minor,” and therefore did not

19   constitute an aggravated felony.    Id.

20          We conclude that the phrase “knowing the character and

21   content thereof” applies as well to the parental clause.

22   First, a reading of the parental clause in conjunction with


                                    14
1    the preliminary clause yields a coherent (if not exemplary)

2    English sentence:

 3              A person is guilty of the use of a child in a
 4              sexual performance if knowing the character and
 5              content thereof . . . being a parent, legal
 6              guardian or custodian of such child, he consents
 7              to the participation by such child in a sexual
 8              performance.
 9
10       Second, if the mental state requirement is read out of

11   the parental clause, there would be serious constitutional

12   concerns about felony liability for caretakers who were

13   unaware of the nature of the performance consented to.

14   Offenses that require no mens rea are disfavored, and some

15   indicium of legislative intent for strict liability is

16   generally required before dispensing with mens rea as an

17   element.   Staples v. United States, 511 U.S. 600, 606-07

18   (1994); see United States v. Alameh, 341 F.3d 167, 175 (2d

19   Cir. 2003) (declining to limit “knowledge” mental state to

20   only one clause of naturalization provision 18 U.S.C.

21   § 1425(b)).   The New York legislature provides specific

22   guidance that when a penal statute contains only one mental

23   state requirement, “it is presumed to apply to every element

24   of the offense unless an intent to limit its application

25   clearly appears.”   N.Y.P.L. § 15.15(1).   In view of these

26   concerns and the absence of any clear legislative intent for

                                   15
1    strict liability, we have little trouble concluding that the

2    legislature intended the mental state to apply to the

3    parental clause.

4        Third, we disagree with the Gonzalez court’s analysis.

5    Gonzalez rejected the reading we adopt, reasoning that this

6    interpretation penalizes only conduct already penalized by

7    the general clause, thereby rendering the parental clause

8    superfluous.   See Gonzalez, 369 F. Supp. 2d at 450.    At a

9    minimum, the plain wording draws two distinctions that

10   redeem the parental clause from mere surplusage.   The action

11   penalized by the parental clause--to “consent”--does not

12   appear in the general clause; although the general clause

13   includes the similar act of “authoriz[ing],” there is no

14   reason to conclude that the two terms are necessarily

15   coterminous.   (The power of consent would seem to be lodged

16   only in a person who is a parent, or in a parent’s place.)

17   Furthermore, the general clause prohibits acts relating to

18   “engage[ment]” in a sexual performance, whereas the parental

19   clause uses the arguably broader word “participation.”     We

20   defer to New York courts to illuminate these distinctions;

21   for our purposes it suffices that they describe conduct

22   criminalized by the parental clause but not the general



                                   16
1    clause.

2         Fourth, although New York cases do not illuminate the

3    requisite mental state for the parental clause, other state

4    materials (in the margin 10 ) suggest the “knowing the

5    character and content thereof” standard applies.     These

6    sources counsel against recognizing a mens rea disparity in

7    an unfamiliar state statute where none is required or

8    recognized in practice.

9         Finally, even if the legislature intended the “knowing”

10   requirement to apply only to the general clause, the act of

11   “consent” in the parental clause presumes awareness of the

12   nature of the performance: One cannot consent fully to a

13   sexual performance if the nature of the performance is

14   unknown.     The Supreme Court reached a similar conclusion in

15   Leocal. 11


           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

                                     17
1        Having established that the parental clause has a

2    knowledge requirement equivalent or comparable to the

3    general clause, a conviction under the parental clause is an

4    aggravated felony for the same reasons as the general

5    clause.

6

7                                  III

8        Oouch argues that the conduct criminalized by N.Y.P.L.

9    § 263.05 is described more closely by the category of

10   aggravated felony in 8 U.S.C. § 1101(a)(43)(I): offenses

11   relating to child pornography.      He asserts that § 263.05

12   does not categorically constitute a child pornography

13   offense for purposes of 8 U.S.C. § 1101(a)(43)(I).      This

14   argument is irrelevant.    The document that initiated Oouch’s

15   removal specified 8 U.S.C. § 1101(a)(43)(A) as the only

16   basis for removal.    The choice of grounds for removal is an

17   unreviewable exercise of prosecutorial discretion.      See 8

18   U.S.C. § 1252(g); Ali v. Mukasey, 524 F.3d 145, 150 (2d Cir.

19   2008).    Even if the offense were described more aptly as



     “negligent or merely accidental conduct.”      543 U.S. at 9;
     see also People v. Velasquez, 528 N.Y.S.2d     502, 503 (Sup.
     Ct. 1988) (interpreting “knowingly” mental     state for
     possession of a defaced firearm statute to     apply to both
     possession and defacement elements).

                                    18
 1   child pornography, it constitutes “sexual abuse of a minor”

 2   and that is a proper ground for removal.

 3

 4                             CONCLUSION

 5       The state statute, N.Y.P.L. § 263.05, is not divisible,

 6   and any conviction under it categorically constitutes

 7   “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A)

 8   for purposes of removal for an aggravated felony pursuant to

 9   8 U.S.C. § 1227(a)(2)(A)(iii).     Having concluded, under 8

10   U.S.C. § 1252(a)(2)(D), that N.Y.P.L. § 263.05 was properly

11   interpreted as an aggravated felony, it follows that we lack

12   jurisdiction to review the removability order.     See

13   § 1252(a)(2)(C).   The petition for review is therefore

14   dismissed.




                                   19
