NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 22-1493 ______________

JOSE LUIS REYES, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ______________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A094-241-250) _________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on December 8, 2022

Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges

(Filed: February 23, 2023)

______________

OPINION* ______________

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. FUENTES, Circuit Judge.

Jose Luis Reyes petitions for review of a decision of the Board of Immigration

Appeals (“BIA”) denying his application for cancellation of removal. Because Reyes has

failed to meet his burden to establish that his conviction under a New York statute is not a

disqualifying offense for cancellation of removal, we deny his petition for review.

I.

Petitioner Reyes is a native and citizen of Mexico who first entered the United States

without inspection in 1995. In 2004, Reyes pleaded guilty to a charge of sexual abuse

under New York Penal Law § 130.60 (“New York Statute”). In 2010, the Department of

Homeland Security initiated removal proceedings against Reyes by issuing a Notice to

Appear. Reyes did not dispute his removability on non-criminal grounds.

Reyes moved for cancellation of removal based on hardship to his three children if

he were removed. However, Reyes’s conviction for sexual abuse in the second degree

presents a barrier to cancellation of removal: that relief is unavailable to an applicant who

has been convicted of an “aggravated felony.”1 The Immigration Judge (“IJ”) found Reyes

removable, and then considered whether Reyes’s conviction constituted an aggravated

felony. The IJ concluded that the issue had been directly addressed by the BIA in Matter

of Small, and that the conviction did constitute an aggravated felony. The IJ therefore

ordered Reyes removed.

1 8 U.S.C. § 1229b(b)(1).

2 Reyes appealed to the BIA. The BIA affirmed the IJ’s ultimate conclusion that the

conviction constituted aggravated felony sexual abuse of a minor, making Reyes ineligible

for cancellation of removal. Reyes now petitions for review of that decision.

II.

We have jurisdiction to review the BIA’s final order of removal.2 We lack

jurisdiction to review an order to remove a non-citizen who has committed an aggravated

felony,

(a)(2)(C), but we may retain jurisdiction to address the prerequisite

of whether a petitioner was convicted of an aggravated felony.3 We review the BIA’s

determination that Reyes’s New York State conviction constituted an aggravated felony de

novo.4

III.

Reyes’s removability is not in dispute. Once the government has met its burden of

establishing removability, the noncitizen then bears the burden of establishing his

eligibility for discretionary cancellation of removal.5 The Immigration and Nationality Act

(“INA”) authorizes the Attorney General to cancel the removal of a noncitizen if that

person establishes, among other things, that his “removal would result in exceptional and

extremely unusual hardship to . . . [his] spouse, parent, or child, who is a citizen of the

2

(a)(5). 3 Stubbs v. Att’y Gen.,

, 253 n.4 (3d Cir. 2006). 4 Evanson v. Att’y Gen.,

(3d Cir. 2008). The BIA issued its own decision on the merits rather than summarily affirming the IJ. We therefore review the BIA’s decision, not that of the IJ. See Hanif v. Att’y Gen.,

(3d Cir. 2012) (citing Sheriff v. Att’y Gen.,

(3d Cir. 2009)). 5 Syblis v. Att’y Gen.,

(3d Cir. 2014).

3 United States.”6 The Attorney General may discretionarily grant that form of relief from

removal only to an applicant who, among other things, has not been convicted of an offense

under

(a)(2), which includes any “aggravated felony.”7 We therefore turn

to the question of whether Reyes’s conviction constitutes an aggravated felony.

A.

To determine whether a petitioner’s prior conviction is an aggravated felony, we

apply the categorical approach. This approach “asks only whether the elements of a federal

criminal statute can be satisfied by reference to the actual statute of conviction.”8 A court

looks “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 of a

corresponding aggravated felony.”9

A divisible statute listing multiple crimes with different elements requires courts to

employ a “modified” categorical approach to determine the precise crime of conviction.10

Under the modified categorical approach, the court may look to a limited class of

documents—such as the indictment, jury instructions, or plea agreement and colloquy—

solely to determine under which portion of the statute the defendant was convicted.11 Once

a court has used the modified categorical approach to “determine what crime, with what

6 8 U.S.C. § 1229b(b)(1). 7 Id. 8 Evanson,

(quoting Singh v. Ashcroft,

(3d Cir. 2004)). 9 Moncrieffe v. Holder,

(2013) (internal quotation marks omitted). 10 Hillocks v. Att’y Gen,

(3d Cir. 2019). 11 Mathis v. United States,

(2016).

4 elements, a defendant was convicted of,” then it may “compare that crime, as the

categorical approach commands, with the relevant generic offense.”12

B.

At the time of Reyes’s conviction, the statute under which he was convicted

provided that:

A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:

(1) Incapable of consent by reason of some factor other than being less than seventeen years old; or

(2) Less than fourteen years old.13

This statute requires the modified categorical approach because it has “alternative

elements.”14 It is divisible between its two subsections: subsection two requires that the

victim be under 14 years old, while subsection one does not. Further, New York’s Criminal

Jury Instructions and Model Colloquies provide two entirely different model instructions

for each of the statute’s two subsections.15 The statute is therefore divisible, and Reyes

does not argue otherwise.

As far as the record on Reyes’s conviction, the Administrative Record contains a

disposition sheet and a plea colloquy, which refers to the offense as “sex abuse in the

12

. 13 New York Penal Law § 130.60. 14 Hillocks,

. 15 Penal Law Article 130, https://www.nycourts.gov/judges/cji/2- PenalLaw/130/art130hp.shtml (last accessed February 8, 2023).

5 second degree.”16 The record is not perfectly clear as to which subsection Reyes was

convicted under. However, “an inconclusive record of conviction does not satisfy a

noncitizen’s burden of demonstrating eligibility for relief from removal.”17 Reyes instead

bears the burden of establishing that he was not convicted under subsection two.18 He has

not carried that burden.

C.

We next must determine whether subsection two categorically constitutes an

aggravated felony.19 The INA includes “sexual abuse of a minor” as an aggravated felony

but does not define that term.20 In the Third Circuit, “for purposes of applying the

categorical approach in the context of an immigration case, an analysis of the generic crime

of ‘sexual abuse of a minor’ depends upon

(a)(8) for guidance.”21 That

federal statute defines sexual abuse as including “the employment, use, persuasion,

inducement, enticement, or coercion of a child to engage in, or assist another person to

16 AR 935. 17 Syblis,

. 18 See Pereida v. Wilkinson,

(2021) (explaining that the petitioner carries the burden to prove as a factual matter that he was not convicted under a subsection of a divisible statute that constitutes a crime of moral turpitude). 19 Reyes primarily argues that the BIA erred by not newly applying the categorical approach, and instead relying on a misinterpretation of the holding of In Re Small,

(BIA 2002). He also argues that the Third Circuit’s decision in Cabeda v. Attorney General,

(3d Cir. 2020) effectively overturned Small. Rather than rely on Small, we will apply the categorical approach. 20

(a)(43)(A). 21 Cabeda,

.

6 engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of

sexual exploitation of children, or incest with children.”22

Reyes argues that the minimal conduct needed to obtain a conviction under the New

York Statute is not conduct that could fit within this federal counterpart. He first argues

that touching through clothing can qualify as “sexual contact” under the New York Statute

but not under the federal equivalent. Section 3509(a)(9)(A) defines “sexually explicit

conduct”—one of the items included in the federal statute’s definition of “sexual abuse”—

to include “sexual contact in the manner of genital-genital, oral-genital, anal-genital, or

oral-anal contact.” 23 “Sexual contact” in turn is defined as including intentional touching

“either directly or through clothing.”24 Reyes’s argument is therefore unavailing.

Reyes also argues that the body parts included in the New York Statute are broader

than those included in the federal definition. The New York Statute defines “sexual

contact” as “any touching of the sexual or other intimate parts of a person for the purpose

of gratifying sexual desire of either party.”25 To support his position, Reyes cites to the

Second Circuit’s decision in United States v. Romeo,

(2d Cir. 2010),

which relies on James v. Mukasey,

(2d Cir. 2008) for the proposition that

sexual contact under the New York Statute is broader than the federal definition. He also

22

(a)(8). 23

(a)(9)(A). 24

(emphasis added). 25 New York Penal Law § 130.00(3).

7 cites to two New York cases holding that the New York Statute’s definition of sexual

conduct includes instances where the actor touches the victim’s upper leg.26

The Second Circuit has clearly held, however, that a conviction under the New York

Statute is an aggravated felony under the INA.27 In Rodriguez, the Second Circuit clarified

that the contrary suggestion in James was dicta and that “the New York law’s reference to

‘intimate’ body parts does not necessarily make the New York statute’s definition of sexual

contact broader than that provided in the INA.”28 It further explained that “[l]imitations

imposed by relevant state definitions and caselaw ensure that the state statute does not

extend beyond the federal definition: a conviction under [New York law] requires both that

the victim be [a minor] and that the perpetrator’s ‘sexual contact’ with the victim be ‘for

the purpose of gratifying sexual desire.’”29

We agree with the Second Circuit that the New York Statute sweeps no further than

the INA, especially considering the “breadth of conduct”30 encompassed by the federal

26 P. Brf. 17 (citing People v. Gray,

(N.Y. App. Div. 1994); People v. Morbelli,

(N.Y. Crim. Ct. 1989)). 27 Debique v. Garland,

(2d Cir. 2023) (per curium). 28 Rodriguez v. Barr,

(2d Cir. 2020); see also Debique,

(“[O]ur holding in Rodriguez defeats [Petitioner’s] argument that James v. Mukasey,

(2d Cir. 2008), implies

(2) is broader than the generic federal definition of ‘sexual abuse of a minor.’”). 29 Rodriguez,

. In Rodriguez, the relevant New York offense was § 130.65(3). Both § 130.60(2) and § 130.65(3) refer to “sexual abuse,” which is defined at the outset of the statute, and therefore the same statutory definition applies to both statutory provisions. Debique,

(referring to the two statutes as “substantively identical”). 30 Restrepo v. Att’y Gen.,

(3d Cir. 2010). Note that this Court continues to be bound by Restrepo even after Esquivel-Quintana v. Sessions,

(2017). Cabeda,

. Restrepo in turn defers to the BIA’s decision in In re Rodriguez- Rodriguez, in which the BIA concluded that the federal statute was not just intended to

8 generic definition, and that both statutes reach a “broad range of maltreatment [of children]

of a sexual nature.”31 And contrary to Reyes’s contention, a misdemeanor conviction can

qualify as an aggravated felony.32 Reyes has not demonstrated that subsection 2 of the New

York Statute criminalizes conduct that falls outside the generic federal definition. He

therefore has not met the burden of establishing his eligibility for discretionary cancellation

of removal.

IV.

For the foregoing reasons, we will deny Reyes’s petition for review.

capture crimes that involved physical sexual contact. In re Rodriguez-Rodriguez,

(BIA 1999). 31 In re Rodriguez-Rodriguez,

. 32 See Biskupski v. Att’y Gen.,

(3d Cir. 2007); United States v. Graham,

(3d Cir. 1999) (“[A] misdemeanor can be an ‘aggravated felony’ . . . even if it is not, technically speaking, a felony at all.”).

9