Kaufmann v. Holder, No. 13-2432 (1st Cir. 2014)
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Petitioner, a native of Germany, lawfully entered the United States in 1959. In 2004, Petitioner pleaded guilty to possession of child pornography under Connecticut law. The Board of Immigration Appeals (BIA) later concluded that Petitioner was removable for having been convicted of an aggravated felony of child pornography under 8 U.S.C. 1101(a)(43)(I) and 1227(a)(2)(A)(iii). Petitioner petitioned for review, contending the government did not meet its burden of showing that the state conviction fell under the federal statute because the relevant state law of conviction encompassed other conduct. The First Circuit denied Petitioner’s petition for review, holding that Petitioner’s admission in the state proceeding to having images of children “having sex” was sufficient to bring him within the federal statute’s definition of an aggravated felony of child pornography.
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United States Court of Appeals For the First Circuit No. 13-2432 PETER HEINZ KAUFMANN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Lynch, Chief Judge, Torruella and Thompson, Circuit Judges. Justin Conlon on brief for petitioner. Karen L. Melnik, Trial Attorney, Office of Immigration Litigation, Stuart F. Delery, Assistant Attorney General, Civil Division, and Douglas E. Ginsburg, Assistant Director, on brief for respondent. July 14, 2014 LYNCH, Chief Judge. native of Germany, possession of consequences. was child Petitioner Peter Heinz Kaufmann, a convicted under pornography. Connecticut This had law for immigration The Board of Immigration Appeals ("BIA") found him removable under 8 U.S.C. §§ 1101(a)(43)(I) and 1227(a)(2)(A)(iii). He petitions for review, arguing that his admission in the state proceeding to having images of children "having sex" is insufficient to bring him within the federal statute's definition of an aggravated felony of child pornography because the relevant state law of conviction encompasses other conduct. His argument is meritless, and we deny the petition for review. I. Petitioner, born in Germany in 1948, lawfully entered the United States in 1959. In 1999, petitioner downloaded child pornography onto his computer, paying for the images with a credit card. warrant In 2002, Connecticut police officers armed with a search entered pornographic petitioner's images house involving and known found minors at on least five petitioner's computer. Petitioner pleaded guilty to state charges of possession of child pornography under Connecticut law on November 22, 2004. During the plea colloquy, the prosecutor explained to the judge that petitioner had admitted that the images were of "children having sex and it came from Russia." -2- Petitioner was given a suspended sentence of five years along with ten years of probation. Petitioner does not deny making the admission. On April 8, 2013, the Department of Homeland Security ("DHS"), based on the Connecticut conviction, charged petitioner with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." See also 8 U.S.C. § 1101(a)(43)(A), (I). In an oral decision on June 4, 2013, an Immigration Judge ("IJ") found that petitioner was removable as an aggravated felon and ordered his deportation to Germany. Petitioner appealed to the BIA, which dismissed the appeal and affirmed the order of removal on October 17, 2013. This petition for review followed. II. Ordinarily, courts lack jurisdiction to review the BIA's finding that an alien is removable on the basis of having committed a criminal offense. See 8 U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction to review constitutional claims or questions of law raised in such a case. for review presents a See id. § 1252(a)(2)(D). This petition single question of law, so we have jurisdiction to address only that question. We review the BIA's legal conclusion de novo, granting some deference to its reasonable interpretation of the statutes and regulations within its purview. See Liu v. Holder, 714 F.3d 56, 59 -3- (1st Cir. 2013). Because the BIA "conducted an independent evaluation of the record and rested its decision on a selfgenerated rationale," our review is focused on the BIA's decision rather than the IJ's. Gonzalez v. Holder, 673 F.3d 35, 38 (1st Cir. 2012) (quoting Zheng v. Holder, 570 F.3d 438, 440 (1st Cir. 2009)) (internal quotation mark omitted). The BIA concluded that petitioner was removable for having been convicted of an aggravated felony of child pornography as described in 18 U.S.C. §§ 2251, 2251A, or 2252.1 § 1101(a)(43)(I). See 8 U.S.C. Those provisions, in relevant part, outlaw the possession of "any visual depiction . . . of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2252. "Sexually explicit conduct" is defined as "graphic sexual intercourse," "bestiality," "masturbation," "sadistic or masochistic abuse," or "exhibition of the genitals or pubic area of any person." Id. § 2256(2). The BIA concluded that petitioner's conviction necessarily fell within that definition. The convicted Connecticut criminalized pornography.2 It defined statute the under knowing child which petitioner possession pornography as of was child "any material 1 The BIA did not reach the IJ's separate conclusion that petitioner's same conviction would also qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) as "sexual abuse of a minor." 2 The statute was amended after petitioner's indictment but before his conviction. He was tried and convicted under the old -4- involving . . . photographic or other visual reproduction of a live performance which depicts a minor in a prohibited sexual act." Conn. Gen. Stat. § 53a-193(13) (2003). "Prohibited sexual act," in turn, was defined as "erotic fondling, nude performance, sexual excitement, sado-masochistic intercourse." Id. § abuse, 53a-193(3). masturbation or Petitioner focuses sexual on the definition of "erotic fondling," as "touching a person's clothed or unclothed genitals, pubic area, buttocks, or if such person is a female, breast." Id. § 53a-193(5). His argument is that this fondling of clothed areas makes the Connecticut statute broader than the federal statute. Specifically, the Connecticut statute criminalizes possession of depictions involving touching of a minor's clothed buttocks or female breasts, while the federal statute does not. From this he says the government did not meet its burden of showing the state conviction fell under the federal statute. Ordinarily, we use a "categorical approach" to determine whether a state conviction fits within the federal definition for purposes of the Immigration and Nationality Act. Holder, 698 F.3d 29, 34 (1st Cir. 2012). See Campbell v. Under that approach, we examine whether the elements of the state crime of conviction version of the statute, committed the crime. which was -5- operative at the time he necessarily indicate that the elements of the federal crime were present. See Taylor v. United States, 495 U.S. 575, 600-01 (1990). However, when a statute is divisible into multiple offenses or theories of liability, some of which satisfy the definition under the federal statute and some of which do not, we apply a "modified categorical approach." Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013). Under the modified categorical approach, we may look to the record of conviction to determine whether the petitioner was convicted under one of the provisions that does satisfy the federal definition. Holder, 707 F.3d 77, 80-81 (1st Cir. 2013). See Patel v. When using this approach, we will find that a state conviction fits the federal definition only if the record shows as much through "necessary" inferences; merely "reasonable" inferences are insufficient. Id. at 82-83 (quoting Renteria-Morales v. Mukasey, 551 F.3d 1076, 1085 (9th Cir. 2008)) (internal quotation marks omitted). Petitioner argues that the government's inference is no more than reasonable. We may appropriately review the transcript of the plea colloquy. See Shepard v. United States, 544 U.S. 13, 16 (2005). That is the source of petitioner's admission that the images portrayed children "having sex." Petitioner argues that the term "having sex" is ambiguous, and that the BIA could not necessarily conclude that his conviction fits within the definition -6- found in 8 U.S.C. § 1101(a)(43)(I). Petitioner supports his argument with multiple social science studies concluding that people ascribe a range of meanings to the term "sex" or "have sex." Petitioner's argument misses the point. The fact that a term may carry multiple meanings does not render it meaningless.3 His real and equally fallacious argument is that the admission that the children photographed were "having sex" could reasonably mean he was convicted under the clothed sexual fondling part of the statute. But no reasonable person would ascribe that meaning to the term "have sex." Further, none of the social science sources petitioner relies on support that definition. Since the plea colloquy established that the pictures showed children "having sex," the BIA correctly concluded that it necessarily established as well that the conviction did not fall outside the scope § 1101(a)(43)(I). of the federal statute, Petitioner is removable. 8 U.S.C. The petition for review is denied. 3 The term "vehicle" in the context of theft laws, for instance, may be subject to reasonable disagreement with respect to some things (for example, would a non-motorized scooter qualify?), but it is entirely clear as to others (for example, a car is a vehicle, and a suitcase is not). The fact that it is unclear whether a scooter is a vehicle does not change the fact that a suitcase is not one. Cf. Massachusetts v. U.S. Dep't of Transp., 93 F.3d 890, 893-94, 896-97 (D.C. Cir. 1996) (explaining that statutory ambiguities "may be unclear in only one direction," and concluding that even though statute was arguably ambiguous, it nonetheless could not have the meaning the agency ascribed to it). -7-
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