21-6504 Kerr v. Garland

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of January, two thousand twenty-three.

PRESENT: ROBERT D. SACK, JOSEPH F. BIANCO, ALISON J. NATHAN, Circuit Judges. _____________________________________

KADEEN KAMAR KERR, Petitioner,

v. 21-6504

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: ROHMAH A. JAVED, Esq. (John H. Peng, on the brief), for Karen Murtagh, Executive Director, Prisoners’ Legal Services of New York, Albany, NY.

FOR RESPONDENT: IMRAN R. ZAIDI, Trial Attorney, Office of Immigration Litigation (Jennifer J. Kenney, Assistant Director; Lindsay B. Glauner, Senior Litigation Counsel, on the brief), for Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED that the petition for review is DENIED.

Petitioner Kadeen Kamar Kerr, a native and citizen of Jamaica,

seeks review of an August 27, 2021 decision of the BIA, affirming

a December 15, 2020 decision of an Immigration Judge (“IJ”), which

ordered his removal to Jamaica. In re Kadeen Kamar Kerr, No. A058

826 330 (B.I.A. Aug. 27, 2021), aff’g No. A058 826 330 (Immigr.

Ct. Napanoch Dec. 15, 2020). We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and

the issues on appeal, which we refer to only as necessary to

explain our decision.

We have reviewed the decision of the IJ as supplemented by

the BIA. See Matthews v. Barr,

(2d Cir. 2019).

We defer to the agency’s definition of “crime of child abuse, child

neglect, or child abandonment” under

(a)(2)(E)(i),

see Matthews,

, but review de novo whether Kerr’s

conviction for endangering the welfare of a child in violation of

New York Penal Law (“NYPL”) § 260.10(1) satisfies that definition,

see Vasconcelos v. Lynch,

(2d Cir. 2016) (“Our

consideration of questions of law and the application of law to

undisputed facts is de novo.”); Vargas-Sarmiento v. U.S. Dep’t of

F.3d 159, 164 (2d Cir. 2006) (“We review the BIA’s

interpretation of state or federal criminal laws de novo.”).

As we have explained, “[t]o determine whether a state

conviction is a removable offense as included on the INA's list,

we employ the ‘categorical approach,’ in which we ‘look not to the

facts of the particular prior case, but instead to whether the

state statute defining the crime of conviction categorically fits

within the generic federal definition.’” Williams v. Barr,

(2d Cir. 2020)(quoting Moncrieffe v. Holder,

(2013)). Within this framework, “[a] state offense makes

a categorical match with a generic federal offense only if a

conviction of the state offense necessarily involved facts

equating to the generic federal offense.”

(internal quotation

marks and citation omitted). Thus, in this analysis, “only the

minimum criminal conduct necessary to sustain a conviction under

a given statute is relevant.” Id. at 73 (internal quotation marks

and citation omitted). However, even if there is an apparent

categorical match between the state statute and the generic federal

definition, a petitioner can still prevail if he or she

demonstrates that there was a “realistic probability that a state

would apply the [state] statute to conduct beyond the generic

definition.” Id. at 78 (internal quotation marks and citation

omitted).

3 In Matthews, we held that NYPL § 260.10(1) is an apparent

categorical match to the BIA’s definition of a crime of child

abuse. 927 F.3d at 618–20. NYPL § 260.10(1) provides, in

relevant part, that “[a] person is guilty of endangering the

welfare of a child when . . . [h]e or she knowingly acts in a

manner likely to be injurious to the physical, mental or moral

welfare of a child less than seventeen years old.” The agency

defines crime of child abuse as “any offense involving an

intentional, knowing, reckless, or criminally negligent act or

omission that constitutes maltreatment of a child or that impairs

a child’s physical or mental well-being.” Matthews,

(quoting Matter of Velazquez-Herrera,

(B.I.A. 2008)). The agency does not require “actual harm or injury

. . . so long as the state statute requires a sufficient risk of

harm to a child.”

Comparing these legal definitions in

Matthews, we concluded that “[t]his is not a situation . . . in

which the state statute, on its face, stretches further than the

BIA’s definition; instead, the state statute and the BIA’s

definition appear to be a categorical match.”

. To the

extent that Kerr suggests that Matthews incorrectly gave Chevron

deference to the BIA’s interpretation of the crime of child abuse,

or Kerr otherwise argues that Matthews was wrongly decided, we

find no basis to depart from that binding precedent. See United

4 States v. Gill,

, 502 n.8 (2d Cir. 2014) (“In our

Circuit, panels are bound by the decisions of prior panels until

such time as they are overruled either by an en banc panel of our

Court or by the Supreme Court.” (internal quotation marks and

citation omitted)).

Because New York’s statute appears to be a categorical match

with the BIA’s definition, Kerr is only entitled to relief if he

can demonstrate under the "realistic probability” standard “‘that

the State actually prosecutes the relevant offense in cases’ that

fall outside the federal definition.” Matthews,

(quoting Moncrieffe,

). More specifically, Kerr

must “point to his own case or other cases in which the state

courts in fact did apply the statute in the special (nongeneric)

manner for which [the petitioner] argues.”

(quoting Gonzales

v. Duenas-Alvarez,

(2007)) (internal quotation

marks omitted). Kerr asserts, based on certain testimony at his

criminal trial, that his own conviction demonstrates that New York

applies its statute in a manner broader than the BIA’s generic

definition. Although this narrow argument is not foreclosed by

Matthews, id. at 620 (“Matthews does not argue that the facts

underlying his convictions do not match the BIA’s definition of a

crime of child abuse.”), we find Kerr’s contention unpersuasive

based upon the record.

5 At the outset, we reject Kerr’s argument, raised for the first

time in his reply brief, that Pereida v. Wilkinson,

(2021), places the burden on the government to prove that there

was no “realistic probability” that Kerr was convicted for conduct

broader than the BIA’s generic definition of a crime of child

abuse. In Matthews, we determined that even though “it is the

Government’s burden to prove removability . . . it is a

noncitizen’s burden to establish a realistic probability of being

convicted for conduct outside the federal definition, at least in

cases where the state and federal statutes appear to be a

categorical match.”

. The decision in Pereida —

which concerned a petitioner’s burden to prove that he was not

convicted under a certain section of a state’s divisible statute

in order to demonstrate eligibility for the discretionary relief

of cancellation of removal — has no bearing on the allocation of

burdens under the realistic probability approach as set forth in

Matthews.

Here, Kerr has failed to meet his burden under the “realistic

probability” standard. Kerr was convicted by a jury of

endangering the welfare of his infant half-sister after the police

found large quantities of marijuana, loaded firearms, ammunition,

and cash in his bedroom in an apartment where he lived with his

infant half-sister, brother, two other adults, and two other

6 children. At his trial, police officers testified that during the

search of the apartment, the bedroom door was open, and in the

bedroom they found a loaded firearm and bags of marijuana on top

of Kerr’s dresser, 1 as well as additional firearms and marijuana

inside his dresser and closet.

Based upon this evidence, the prosecutor argued in summation

that “anyone” in the house “could have had access to” Kerr’s

bedroom. Certified Administrative Record at 1272. Moreover, with

respect to the requisite elements of the crime, the jury was

instructed that it was required to determine whether Kerr, “on or

about August 15, 2013, . . . acted in a manner likely to be

injurious to the physical, mental or moral welfare of [his infant

half-sister] [and] that [Kerr] did so knowingly.” Id. at 1304.

Thus, the State’s evidence — that the police found loaded firearms

and marijuana in his bedroom (including on his dresser), to which

the door was ajar — along with the legal instruction provided to

1 This evidence, contrary to Kerr’s argument, distinguishes his conviction from other cases where New York courts overturned a conviction or dismissed a charge under NYPL § 260.10(1). See, e.g., People v. Hitchcock,

(2002) (affirming the vacating of defendant’s child endangerment conviction based on firearm possession where defendant made efforts to conceal the firearm that was “wrapped in rags, inside a stereo speaker hidden in a closet behind various items of clothing and bags”); People v. Grajales,

, 609–10 (Crim. Ct. 1999) (dismissing child endangerment charges where there was no evidence to support the prosecution’s conclusory statement that the marijuana was “out and accessible” and holding that “there must be some facts . . . to show a nexus between the presence of the marihuana in the apartment and potential or likely harm to the children”).

7 the jury, demonstrate that Kerr’s conviction falls squarely within

the BIA’s generic definition of a crime of child abuse, which

merely “requires a sufficient risk of harm to a child.” Matthews,

.

Kerr points to conflicting evidence he offered at trial to

support his argument that the contraband was locked in his room

and was inaccessible to the infant. For example, he emphasizes

that one of the adults living in the apartment testified that the

officers needed a device to unlock the bedroom door during the

search. However, there is no basis in the record to conclude that

the jury credited Kerr’s alternative version of the evidence. The

mere fact that there was conflicting evidence at trial as to

whether Kerr’s bedroom door was locked falls far short of

satisfying his burden of “demonstrat[ing] that the State actually

prosecutes the relevant offense in cases that fall outside the

federal definition.” 2 Matthews,

(internal

2 To hold otherwise would require immigration judges to conduct a mini- trial whenever there was some evidence at the criminal trial that conflicted with the government’s proof, even though the jury found the petitioner guilty of the crime and the crime is an apparent categorical match. That approach is more demanding for the government than the legal standard for assessing the sufficiency of the evidence in criminal cases, see Jackson v. Virginia,

(1979) (holding that courts conducting review of the sufficiency of the evidence to support a criminal conviction should view the “evidence in the light most favorable to the prosecution”), and such re-litigation of the underlying conviction supporting removability is “entirely inconsistent with both the INA’s text and the categorical approach,” Moncrieffe,

.

8 quotation marks and citation omitted). As the Supreme Court

emphasized, the categorical approach’s “focus on the minimum

conduct criminalized by the state statute is not an invitation to

apply legal imagination to the state offense; there must be a

realistic probability, not a theoretical possibility, that the

State would apply its statute to conduct that falls outside the

[federal] definition of a crime.” Moncrieffe,

(internal quotation marks and citation omitted). In short, Kerr’s

conviction does not demonstrate any realistic probability that New

York State applies NYPL § 260.10(1) to conduct that is broader

than the BIA’s generic definition of a crime of child abuse.

Accordingly, consistent with our holding in Matthews, the BIA did

not err in concluding that Kerr is removable.

We have considered Kerr’s remaining arguments and find them

to be without merit. For the foregoing reasons, the petition for

review is DENIED. All pending motions and applications are DENIED

and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9