Oouch v. Holder, No. 09-4834 (2d Cir. 2011)

Annotate this Case

Download PDF

09-4834-ag Oouch v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Submitted: September 2, 2010 Decided: January 28, 2011) Docket No. 09-4834-ag - - - - - - - - - - - - - - - - - - - - -x 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. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, RAGGI, Circuit Judge, RAKOFF, District Judge.* 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. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 DISMISSED. 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). DENNIS JACOBS, Chief Judge: 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. 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 Based on that conviction, the 1 On June 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. 8 is divisible, all divisions constitute sexual abuse of a 9 minor, so that any conviction under the statute constitutes 10 11 The BIA reasoned that, although N.Y.P.L. § 263.05 an aggravated felony. 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 I 16 17 An alien who has committed an aggravated felony can be 18 removed from the country upon the order of the Attorney 19 General. 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 8 U.S.C. § 1227(a)(2)(A)(iii). See § 1252(a)(2)(C). 3 We lack We retain 1 jurisdiction, however, to determine constitutional claims 2 and questions of law that arise from BIA proceedings. 3 § 1252(a)(2)(D). 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 9 See Whether an offense is an aggravated felony One category of aggravated felony is sexual abuse of a minor. 8 U.S.C. § 1101(a)(43)(A). Oouch was charged with 10 removability on that basis. 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). 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. 20 110 (2d Cir. 2001). We therefore consider, de novo, See Sui v. INS, 250 F.3d 105, 21 22 The inquiry A 4 1 The BIA is charged with interpreting and enforcing the 2 INA, including 8 U.S.C. § 1101(a)(43)(A). 3 8 C.F.R. § 1003.1. 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). 7 at 111-12. 8 term sexual abuse of a minor in § 1101(a)(43)(A). 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 See § 1103(a)(1); The BIA s interpretation of the INA is Joaquin-Porras, 435 F.3d at 178; Sui, 250 F.3d Congress provided no further definition of the Since 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). 15 federal statutes that define similar sex offenses. 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. 19 adopted the meaning of sexual abuse in 18 U.S.C. § 3509 2 In so doing, it consulted other Id. at 996. The Instead, the BIA 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. 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. 10 Id. Id. at 994, 996. We have already held that this definition is entitled 11 to Chevron deference. 12 56 (2d Cir. 2001). 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. See Mugalli v. Ashcroft, 258 F.3d 52, Oouch urges us to follow the Ninth 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 4 B 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. 8 Gonzales, 448 F.3d 560, 565 (2d Cir. 2006). 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). Taylor, 495 U.S. at 602; Canada v. The inquiry is 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. 16 U.S. Dep t of Homeland Sec., 501 F.3d 116, 121-22 (2d Cir. 3 See Dulal-Whiteway v. 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). 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. 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. For such a divisible statute, We have not yet fixed on an 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. 5 262 (2d Cir. 2000). 6 § 263.05, which consists of [i] a preliminary clause, [ii] 7 a general clause, and [iii] a parental clause : 8 9 10 11 12 13 14 15 16 17 See Michel v. INS, 206 F.3d 253, Oouch was convicted under N.Y.P.L. [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. 18 19 20 A 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 25 A sexual performance under the N.Y.P.L. is one that exhibits sexual conduct . 5 5 See § 263.00(1). Sexual conduct is defined as 9 Under the 1 federal statute, sexual abuse entails sexually explicit 2 conduct. 3 sexual conduct under New York law is subsumed in the 4 federal definition of sexually explicit conduct. 7 See 18 U.S.C. § 3509(a)(8). 6 Each category of 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 8 text prohibits conduct that is not specifically included in 9 the federal statutory text: to authorize a sexual Oouch argues that the state statutory 10 performance. 11 reference to 18 U.S.C. § 3509(a) was intended as a guide 8 However, the BIA has cautioned that its 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. 2 I. & N. Dec. at 996. 3 abuse by non-exhaustive inclusion, dictating that the term 4 sexual abuse includes the employment, use . . . . 5 (emphasis added). 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. 9 a position to authorize a child s conduct has a degree of Rodriguez-Rodriguez, 22 Section 3509(a) itself defines sexual Moreover, to authorize a child to A person in 10 control (other than as a parent, guardian, or legal 11 custodian) tantamount to control by employment or 12 inducement. 13 performance more likely to occur when a defendant is 14 offering or pimping the child as a participant. 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. 21 at 994 (recognizing that Congress s intent in adding 22 § 1101(a)(43)(A) was to expand the definition of an It is the element of control that makes the In view of See Rodriguez-Rodriguez, 22 I. & N. Dec. 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. 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. In Leocal v. Ashcroft, 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. 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. Id. Although the 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. 21 fully as stringent as the mental state implied by the 22 actions enumerated in the federal statutory text. 13 This mental state is 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. 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. 17 454. 18 beyond sexual abuse of a minor, and therefore did not 19 constitute an aggravated felony. 20 See Gonzalez v. Ashcroft, 369 F. Supp. 2d 442, 449- Id. at It followed that the statute criminalized conduct Id. 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 4 5 6 7 8 9 10 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 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. 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)). 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. 26 concerns and the absence of any clear legislative intent for Staples v. United States, 511 U.S. 600, 606-07 The New York legislature provides specific N.Y.P.L. § 15.15(1). 15 In view of these 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. 9 minimum, the plain wording draws two distinctions that See Gonzalez, 369 F. Supp. 2d at 450. At a 10 redeem the parental clause from mere surplusage. 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. 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. 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 The action (The power of consent would seem to be lodged 16 We 1 2 clause. 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. 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 These 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. 15 Leocal. 11 The Supreme Court reached a similar conclusion in 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 8 9 III Oouch argues that the conduct criminalized by N.Y.P.L. § 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. 12 does not categorically constitute a child pornography 13 offense for purposes of 8 U.S.C. § 1101(a)(43)(I). 14 argument is irrelevant. 15 removal specified 8 U.S.C. § 1101(a)(43)(A) as the only 16 basis for removal. 17 unreviewable exercise of prosecutorial discretion. 18 U.S.C. § 1252(g); Ali v. Mukasey, 524 F.3d 145, 150 (2d Cir. 19 2008). He asserts that § 263.05 This The document that initiated Oouch s The choice of grounds for removal is an See 8 Even if the offense were described more aptly as negligent or merely accidental conduct. see also People v. Velasquez, 528 N.Y.S.2d Ct. 1988) (interpreting knowingly mental possession of a defaced firearm statute to possession and defacement elements). 18 543 U.S. at 9; 502, 503 (Sup. state for apply to both 1 child pornography, it constitutes sexual abuse of a minor 2 and that is a proper ground for removal. 3 4 5 CONCLUSION 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. 13 § 1252(a)(2)(C). 14 dismissed. See The petition for review is therefore 19

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.