Quito v. Barr

Summary

Second Circuit holds that a conviction under New York Penal Law § 263.16 (attempted possession of a sexual performance by a child) categorically matches the federal child pornography statute, 18 U.S.C. § 2252(a)(4)(B), and thus constitutes an aggravated felony under INA § 237(a)(2)(A)(iii). The court ruled that the state statute's scienter requirement—knowing the character and content of the material—requires knowledge that the material involves a minor, matching the federal requirement, and that the absence of an affirmative defense under state law is irrelevant to the categorical approach because affirmative defenses are not elements of the offense. The court also held that challenges to the discretionary denial of a waiver of inadmissibility under INA § 212(h) do not raise colorable constitutional claims or questions of law and are therefore unreviewable.

Holdings

1. The court held that § 263.16's knowledge requirement categorically matches § 2252(a)(4)(B)'s. Both statutes require the government to prove that the defendant knew the material involves a minor (i.e., child pornography), but not that the defendant knew the specific age of the minor.
2. The court held that affirmative defenses are not relevant to the categorical approach because they are not elements of an offense. Therefore, the absence of the § 2252(c) affirmative defense in § 263.16 does not make the state statute broader.

Questions Presented

1. Whether Quito's conviction for attempted possession of a sexual performance by a child under N.Y. Penal Law § 263.16 is an aggravated felony under the Immigration and Nationality Act, specifically 8 U.S.C. § 1101(a)(43)(I),(U).
2. Whether the agency committed legal or factual errors in denying Quito's application for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).

Disposition

denied