Summary
This Second Circuit opinion reviews a Board of Immigration Appeals decision denying a lawful permanent resident's petition for review of his removal order and his untimely motion to reopen proceedings. The court holds that the petitioner's New York second-degree sexual abuse conviction categorically qualifies as an aggravated felony constituting "sexual abuse of a minor," adhering to its prior precedent in Debique v. Garland despite arguments challenging stare decisis following Loper Bright. Additionally, the court denies the petition regarding the motion to reopen, finding the BIA reasonably concluded the petitioner lacked due diligence to warrant equitable tolling of the 90-day filing deadline.
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Practice areas
Questions Presented
- Whether a conviction for second-degree sexual abuse under NYPL § 130.60(2) categorically constitutes sexual abuse of a minor and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).
- Whether the Supreme Court's decision in Loper Bright Enterprises v. Raimondo undermined the precedential force of Debique v. Garland, which held that NYPL § 130.60(2) is categorically sexual abuse of a minor.
- Whether the court had jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the BIA's application of the equitable-tolling due-diligence standard to the undisputed facts.
- Whether the BIA abused its discretion by declining to equitably toll the 90-day deadline for Garcia's motion to reopen.
Holdings
- A conviction under NYPL § 130.60(2) categorically constitutes sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), and therefore is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
- Loper Bright did not authorize the panel to disregard or revisit Debique because prior holdings remain subject to statutory stare decisis even when they relied in part on Chevron, and Debique was not based exclusively on Chevron deference.
- The court had jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review whether the BIA misapplied the equitable-tolling due-diligence standard to undisputed facts.
- The BIA did not abuse its discretion in denying equitable tolling because it had a reasonable basis to conclude that Garcia failed to exercise due diligence throughout the period he sought to toll.
Key quotations
“The holdings of [prior] cases . . . are still subject to statutory stare decisis despite our change in interpretive methodology.” (4)
“The expressly sexual nature of such acts (which are limited to contact with “sexual or other intimate parts”), coupled with the expressly sexual nature of such intent (to “gratify[] sexual desire”) clearly puts the proscribed conduct within any commonsense meaning of the federal term “sexual abuse,” as used in § 1101(a)(43)(A).” (33)
“Garcia’s conviction for second-degree sexual abuse under NYPL § 130.60(2) categorically constitutes “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), and is therefore an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii).” (37)
Factual background
Garcia, a Dominican citizen and lawful permanent resident, was convicted under NYPL § 130.60(2) after pleading guilty to second-degree sexual abuse involving sexual contact with a seven-year-old girl. The offense was a class A misdemeanor, and Garcia received a conditional discharge, a fine, sex-offender registration, and a protective order. In removal proceedings, the immigration judge and BIA determined that the conviction was an aggravated felony involving sexual abuse of a minor. Garcia later sought reopening based on evidence concerning diabetes and possible mental-health effects, but he filed the motion approximately one year after the applicable deadline.
Procedural history
An immigration judge sustained the charge that Garcia's New York conviction for second-degree sexual abuse was an aggravated felony and entered a final removal order. The BIA dismissed Garcia's appeal and later denied his motion to reopen as untimely, declining equitable tolling. The Second Circuit consolidated Garcia's petitions for review, dismissed the removal-order petition under the aggravated-felony jurisdictional bar, and denied the motion-to-reopen petition.