18‐996
Quito v. Barr
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                   August Term 2019

                (Argued: November 12, 2019     Decided: January 15, 2020)

                                   Docket No. 18‐996

                       _____________________________________

                                     SERGIO QUITO

                                             Petitioner,

                                        — v. —

                    WILLIAM P. BARR, United States Attorney General,

                                          Respondent.
                       _____________________________________

Before:                WESLEY, LIVINGSTON, and BIANCO, Circuit Judges.

       Petitioner Sergio Quito, a native and citizen of Ecuador, seeks review of a
March 19, 2018 Board of Immigration Appeals decision affirming an immigration
judge’s September 13, 2017 decision denying his motion to terminate removal
proceedings, his applications for a waiver of inadmissibility and readjustment of
status, and ordering him removed. Petitioner argues that his conviction for
attempted possession of a sexual performance by a child is not an aggravated
felony and that the agency committed legal and factual errors in denying his
application for a waiver of inadmissibility. Because we conclude that petitioner’s
conviction is an aggravated felony and his remaining arguments fail to raise a
colorable constitutional claim or question of law, we DENY the petition for review.
                                             CORY FORMAN, Cohen Forman
                                             Barone, LLP, New York, NY, for
                                             Petitioner.

                                             ANN M. WELHAF, Trial Attorney
                                             (Joseph H. Hunt, Assistant Attorney
                                             General, Stephen J. Flynn, Assistant
                                             Director, and Lynda A. Do, Trial
                                             Attorney, on the brief), Office of
                                             Immigration Litigation, United States
                                             Department of Justice, Washington,
                                             D.C., for Respondent.
JOSEPH F. BIANCO, Circuit Judge:

      Petitioner Sergio Quito, a native and citizen of Ecuador, seeks review of a


March 19, 2018 Board of Immigration Appeals (“BIA”) decision affirming an


immigration judge’s September 13, 2017 decision denying his motion to terminate


removal proceedings, his applications for a waiver of inadmissibility and


readjustment of status, and ordering him removed.          Quito argues that his


conviction, after a guilty plea, for attempted possession of a sexual performance


by a child under New York Penal Law (“N.Y. Penal Law”) § 263.16 is not an


aggravated felony under the Immigration and Nationality Act (“INA”)


§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). He also asserts that the agency



                                         2
erred in denying his application for a waiver of inadmissibility under INA


§ 212(h), 8 U.S.C. § 1182(h). Because we conclude that Quito’s conviction under


N.Y. Penal Law § 263.16 is an aggravated felony, and his remaining arguments fail


to raise a colorable constitutional claim or question of law, we deny the petition


for review.


                                BACKGROUND

      Quito entered the United States without inspection in 1994 and became a


lawful permanent resident in 2007. In 2012, he was convicted, after a guilty plea,


of attempted possession of a sexual performance by a child in violation of N.Y.


Penal Law § 263.16. Based on that conviction, the Department of Homeland


Security placed Quito in removal proceedings, charging him as removable for


having been convicted of an aggravated felony, or an attempt to commit an


aggravated felony, relating to child pornography under the INA.          8 U.S.C.


§ 1101(a)(43)(I), (U).




                                        3
      Quito denied removability and moved to terminate the proceedings. He


argued that his conviction was not an aggravated felony because § 263.16 sweeps


more broadly than the relevant federal child pornography statute, 18 U.S.C.


§ 2252(a)(4)(B). Quito also sought discretionary relief in the form of a hardship‐


based waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h), and


readjustment of status under INA § 245(a), 8 U.S.C. § 1255(a). To that end, Quito’s


wife, daughter, and sister‐in‐law testified during a hearing before the immigration


judge about the financial and emotional hardships they experienced during


Quito’s detention.


      In September 2017, an immigration judge ordered Quito removed. He


concluded that Quito’s conviction under § 263.16 categorically fits within


§ 2252(a)(4)(B) and is thus an aggravated felony under the INA. In reaching that


conclusion, the immigration judge relied in part on this Court’s decision in Weiland


v. Lynch, which held that a nearly identical New York statute, N.Y. Penal Law


§ 263.11, is an aggravated felony under the INA. 

(2d Cir. 2016) (per


                                         4
curiam).   As to Quito’s applications for a waiver of inadmissibility and


readjustment of status, the immigration judge assumed that Quito was eligible for


that relief, but denied the relief in his discretion. He found that Quito’s criminal


history—which, in addition to his child pornography conviction, includes a 2001


second‐degree harassment conviction stemming from an altercation with his wife


and three disorderly conduct convictions in the 1990s for patronizing sex


workers—outweighed the asserted hardships to his family. The immigration


judge also expressed concern that Quito continued to minimize his culpability for


the child pornography conviction.


      The BIA affirmed the immigration judge’s decision and dismissed Quito’s


appeal. It concluded that, under Weiland, Quito’s conviction for violating § 263.16


is an aggravated felony. The BIA also agreed with the immigration judge’s


discretionary denial of a waiver of inadmissibility and readjustment of status,


similarly reasoning that Quito’s criminal history warranted denying that relief


notwithstanding the hardships to his family.


                                         5
      Quito timely petitioned this Court. We granted a stay of removal and


denied Respondent’s motion to dismiss for lack of jurisdiction, concluding that we


had jurisdiction to review whether Quito’s conviction is an aggravated felony


under the INA. We further noted that Quito’s argument that § 263.16 is not an


aggravated felony was colorable because Weiland did not address the argument


that § 263.16 is broader than § 2252(a)(4)(B) because it does not require the


prosecution to prove that the defendant knew the victim was under 18 years old.


                                 DISCUSSION

I. Aggravated Felony Determination


      Although we lack jurisdiction to review a final order of removal against a


noncitizen convicted of an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), we retain


jurisdiction to review colorable constitutional claims and questions of law, 

including whether a particular conviction constitutes an


aggravated felony, Ming Lam Sui v. I.N.S., 

, 110 (2d Cir. 2001). We




                                        6
review de novo whether Quito’s conviction under § 263.16 is an aggravated felony.


Santana‐Felix v. Barr, 

, 53 (2d Cir. 2019).


      Under the INA, a noncitizen “who is convicted of an aggravated felony” is


deportable.   8 U.S.C. § 1227(a)(2)(A)(iii).    As relevant here, the INA defines


“aggravated felony” to include an attempt to commit “an offense described in”


18 U.S.C. § 2252. See 

(U). In turn, § 2252(a)(4)(B), which the


parties agree is the relevant subsection here, criminalizes “knowingly


possess[ing], or knowingly access[ing] with intent to view, . . . any visual depiction


. . . of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2252(a)(4)(B).


      To determine whether Quito’s conviction is “an offense described in”


§ 2252(a)(4)(B), we employ the “categorical approach.”         Moncrieffe v. Holder,

, 190 (2013); Hylton v. Sessions, 

, 60 (2d Cir. 2018). “Under


this approach 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 of a corresponding aggravated felony.” Moncrieffe,


                                           

(quoting Gonzales v. Duenas‐Alvarez, 

, 186 (2007)).


“Generic,” in this context, “mean[s] the offenses must be viewed in the abstract, to


see whether the state statute shares the nature of the federal offense that serves as


a point of comparison.” 

examine what the state conviction


necessarily involved, not the facts underlying the case, we must presume that the


conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized,


and then determine whether even those acts are encompassed by the generic


federal offense.” 

(alterations in original) (quoting Johnson v. United


States, 

, 137 (2010)).


      Quito was convicted, after a guilty plea, of violating N.Y. Penal Law


§ 263.16. That statute proscribes “possessing a sexual performance by a child,”


and states that a person is guilty of the offense “when, knowing the character and


content thereof, he knowingly has in his possession or control, or knowingly


accesses with intent to view, any performance which includes sexual conduct by a


child less than sixteen years of age.” N.Y. Penal Law § 263.16. Quito argues that


                                         8
§ 263.16 is not a categorical match to § 2252 because the state statute is broader in


two ways. First, Quito asserts that the requisite mental state under § 263.16 is less


stringent than under § 2252. Second, he argues that § 263.16 does not permit an


affirmative defense that is available under § 2252.


      As a threshold matter, we disagree with Respondent that our decision in


Weiland forecloses Quito’s arguments. In Weiland, we held that § 263.11, which is


nearly identical to § 263.16, is an aggravated felony under the 

. The only argument that the petitioner raised to the contrary in that case,


however, was that § 263.11 is not an aggravated felony because it lacks a federal


jurisdictional element. 

Court found that argument unpersuasive


under the Supreme Court’s decision in Torres v. Lynch, 

, 1631 (2016),


which held that federal jurisdictional elements are properly ignored when


applying the categorical approach. 

petitioner did not raise any


other arguments, the Weiland Court did not address the issues presented here—


namely, whether New York’s child pornography statute is not an aggravated


                                         9
felony because (1) its knowledge requirement is less stringent than the federal


child pornography statute or because (2) it does not permit an affirmative defense


that is available under the federal statute. Thus, Weiland does not control our


decision here.1


       For the reasons that follow, however, we conclude that § 263.16 categorically


matches § 2252(a)(4)(B) and that Quito’s conviction is therefore an aggravated


felony under the INA.


       A. Scienter


       Quito first argues that § 263.16’s knowledge requirement is broader than


§ 2252’s because § 263.16 does not require the government to prove that the


defendant knew the age of the minor, while § 2252 does. We disagree and hold


that § 263.16’s knowledge requirement categorically matches § 2252’s.




1Similarly, although we stated in a footnote in Oouch v. Department of Homeland Security, 

, 120 n.1 (2d Cir. 2011) that the petitioner’s conviction under § 263.16 for possessing a sexual
performance by a child “could have been a ground for removability under 8 U.S.C.
§ 1101(a)(43)(I),” that brief statement was dictum that does not control here.

                                                10
      At the outset, to the extent Quito argues that § 2252 requires the government


to prove that the defendant knew the specific age of the minor (e.g., whether the


minor was 13 or 15 years of age), we disagree. In relevant part, § 2252 criminalizes


“knowingly possess[ing], or knowingly access[ing] with intent to view, . . . any


visual depiction . . . of a minor engaging in sexually explicit conduct.” 18 U.S.C.


§ 2252(a)(4)(B). In United States v. X‐Citement Video, Inc., the Supreme Court held


that “the term ‘knowingly’ in § 2252 extends both to the sexually explicit nature of


the material and to the age of the performers.” 

, 78 (1994). Quito


appears to urge a literal reading of “the age of the performers,” but, read in its


entirety, X‐Citement Video makes clear that the government must prove that the


defendant knew that the performance involved a minor, not that the defendant


knew the specific age of that minor. See, e.g., 

68 (describing knowledge


requirement under § 2252 as “know[ing] that one of the performers was a minor”


and “‘knowing[]’ . . . the minority of the performers”). Moreover, circuit courts


have consistently interpreted X‐Citement Video to require knowledge only that the


                                         11
visual depiction involved a minor. See, e.g., United States v. Haymond, 

,


957 (10th Cir. 2012) (“[T]o convict [the defendant], the government was required


to prove he knew that the specific images he was convicted of possessing depicted


minors engaged in sexually explicit conduct.”); United States v. Szymanski, 

, 799 (6th Cir. 2011) (concluding that defendant “must have known, not just


that he was receiving something, but that what he was receiving was child


pornography”); United States v. Myers, 

, 1042 (7th Cir. 2004) (“The


Supreme Court has held that . . . § 2252(a)(2) includes a scienter requirement, and


therefore encompasses only situations in which the defendant knows that the


material he is receiving depicts minors engaged in sexually explicit conduct.”);


United States v. Matthews, 

, 351 (4th Cir. 2000) (interpreting X‐Citement


Video to extend “knowledge requirement to . . . the sexually explicit nature of the


materials as well as to the involvement of minors in the materials’ production”).


We likewise interpret § 2252 and X‐Citement Video to require that the defendant




                                         12
know the material he or she possesses is child pornography—meaning it involves


a minor—but not that the defendant know the age of the minor.


      Therefore, the relevant question here is whether § 263.16 also requires the


government to prove that the defendant knew that the material he or she


possessed involved a minor. We hold that it does. It is well‐settled that criminal


liability relating to child pornography “may not be imposed without some element


of scienter on the part of the defendant,” New York v. Ferber, 

,


765 (1982), and that “the presumption in favor of a scienter requirement should


apply to each of the statutory elements that criminalize otherwise innocent


conduct,” X‐Citement 

; see also Staples v. United States, 

, 614‐15 (1994) (rejecting “construction of the statute [that] potentially would


impose criminal sanctions on a class of persons whose mental state . . . makes their


actions entirely innocent”). As the Supreme Court explained in X‐Citement Video,


“the age of minority” in a child pornography offense is such an element “because


nonobscene, sexually explicit materials involving persons over the age of


                                          13
[minority] are protected by the First 

(collecting


Supreme Court decisions). In other words, because “one would reasonably expect


to be free from regulation when trafficking in sexually explicit, though not


obscene, materials involving adults . . . the age of the performers is the crucial


element separating legal innocence from wrongful conduct.” 

      Although the New York Court of Appeals has not specifically addressed the


knowledge that a defendant must have about the age of the depicted individuals


to be guilty under § 263.16, New York’s intermediate appellate courts have


consistently indicated that the defendant must know that he or she possesses child


pornography. In People v. Henry, for example, the Third Department stated that,


to be guilty of violating § 263.16, “the defendant must be aware that he or she is in


possession of a sexual performance by a child.” 

, 1290 (3d Dep’t


2018). Similarly, in People v. Yedinak, the Third Department explained that “while


[§ 263.16] requires proof that the defendant knew of the character and content of


the performance, it also specifically requires that the defendant knowingly had the


                                         14
sexual performance by a child in his or her possession or control.” 

, 1053 (3d Dep’t 2018). That court then held that evidence that the defendant


“intentionally used two search terms that are commonly associated with files that


contain child pornography, that [the] defendant admitted there may be child


pornography found in his [computer] and that the file names of the files


downloaded . . . from defendant’s IP address contained explicit descriptions of the


content” was “legally sufficient to support the element of knowledge regarding


the content and character of the files for which defendant was convicted of


possessing.” 

Most recently, in People v. Urtz, the Third Department


held that the defendant’s “statements that he had, in fact, saved pornographic


videos involving children,” as well as his testimony that he “had recently changed


his display name—‘I like em’ younger’—to omit ‘18 plus,’” supported the jury’s


finding that the defendant “knew of the character and content of the videos and


image[] and knowingly possessed [and accessed] them.” 

, 1489‐


90 (3d Dep’t 2019) (alterations in original) (quoting 

).


                                         15
      Quito nevertheless argues that, under § 263.16, the defendant must know


only that he or she possesses sexually explicit and pornographic material, and


need not know that the material is child pornography. If the government proves


that the material involves a minor, Quito asserts, then the defendant is strictly


liable. To support this argument, Quito relies on N.Y. Penal Law § 15.20(3), which


states that “knowledge by the defendant of the age of [the] child” is not an element


of § 263.16. However, § 15.20(3) establishes only that the government need not


prove that the defendant knew the specific age of the minor to obtain a conviction


under § 263.16. It has no bearing on § 263.16’s requirement that the defendant


“know[] the character and content” of the visual depiction, which, as explained


above, requires that the defendant know that he or she possesses child


pornography.


      Quito also relies on a New York state trial court decision, People v. Gilmour,

(N.Y. Sup. Ct. 1998), to support his interpretation. The court in


Gilmour stated that “[i]n order to obtain a conviction under [§ 263.16], a prosecutor


                                         16
is . . . required to prove beyond a reasonable doubt that a defendant knows both


the character and content of the material possessed.” 

It continued that


“once knowledge is proven, a strict liability standard is imposed, provided that


the prosecutor can also prove beyond a reasonable doubt that the child performer


is less than 16 years of age.” 

court used the phrase “strict


liability,” it also acknowledged that § 263.16 contains a scienter requirement—that


the defendant know the character and content of the material he or she possesses.


See 

above, New York’s intermediate appellate courts have


consistently interpreted that scienter requirement to mean that the defendant must


know the material is not just pornography, but child pornography. Thus, the court


in Gilmour correctly noted that, if the defendant has that knowledge, he or she is


guilty if the child is less than 16 years old, even if the defendant does not know the


child’s specific age. Quito has not cited a New York state case, and this Court is




                                         17
not aware of one, where a defendant was found guilty under § 263.16 even though


he or she did not know that the material possessed was child pornography.2


       Accordingly, because both § 263.16 and § 2252 require proof beyond a


reasonable doubt that the defendant knowingly possessed a visual depiction


involving the use of a minor, we hold that the knowledge requirements under the


statutes categorically match.


       B. Affirmative Defense


       Quito also argues that § 263.16 sweeps more broadly than § 2252 because it


does not permit an affirmative defense that is available under § 2252. Specifically,


§ 2252(c) allows an affirmative defense for an individual who possesses less than


three prohibited visual depictions and, without allowing anyone else to access




2Quito cites to three New York state court decisions that he asserts held that, under § 15.20(3), “a
defendant’s knowledge of the victim’s age is not an element of the crime.” Pet’r’s Br. 23 (first
citing People v. Dozier, 

, 485 (1st Dep’t 1980); then citing People v. Allen, 

, at *3 (N.Y. Crim. Ct. Aug. 27, 2003); and then citing People v. Prise, 

, 369
(N.Y. Crim. Ct. 1987)). None of these cases involved § 263.16 or any other offense relating to child
pornography.

                                                 18
them, either promptly destroys them or turns them over to law enforcement. See


18 U.S.C. § 2252(c). Section 263.16 does not permit a similar affirmative defense.


      Neither the Supreme Court nor this Court has directly addressed the role of


affirmative defenses in the categorical approach.        The Supreme Court has,


however, repeatedly instructed courts to look only to the statutory definition—


meaning the elements—of the relevant offense. See, e.g., Mathis v. United States,

, 2248 (2016) (explaining that, under the categorical approach, courts


“focus solely on whether the elements of the crime of conviction sufficiently match


the elements of [the generic crime]”); Descamps v. United States, 

, 261


(2013) (stating that “courts may ‘look only to the statutory definitions’—i.e., the


elements—of a defendant’s prior offenses” in applying categorical approach


(quoting Taylor v. United States, 

, 600 (1990))). “Elements” in this


context “are the ‘constituent parts’ of a crime’s legal definition—the things the


‘prosecution must prove to sustain a conviction.’” 

(quoting Black’s Law Dictionary (10th ed. 2014)).


                                         19
      Given this guidance, those circuits to have considered this issue have


concluded that affirmative defenses are not relevant to the categorical approach


because they are not elements of an offense. See United States v. Escalante, 

, 399‐400 (5th Cir. 2019) (stating that “it is black letter law that an affirmative


defense (or the absence thereof) is not the same thing as an element of the crime”


and “reject[ing] Escalante’s argument to consider different permissible affirmative


defenses . . . when applying the categorical approach”); United States v.


Velasquez‐Bosque, 

, 963 (9th Cir. 2010) (concluding that, because courts


look to only the statutory definition of the offense, “[t]he availability of an


affirmative defense is not relevant to the categorical analysis”); cf. Donawa v. U.S.


Att’y Gen., 

, 1282 (11th Cir. 2013) (rejecting argument that existence


of affirmative defense warranted application of modified categorical approach


because “[a]n affirmative defense generally does not create a separate element of


the offense that the government is required to prove in order to obtain a


conviction”).


                                         20
      Quito argues that the Supreme Court’s decision in Moncrieffe instructs


otherwise.   Moncrieffe involved a provision of the INA that defines as an


aggravated felony any offense that the Controlled Substances Act (“CSA”) makes


punishable as a 

. The petitioner was convicted under


Georgia state law for possession of marijuana with intent to distribute. 

89. In applying the categorical approach to determine whether that conviction was


an offense that the CSA makes punishable as a felony, the Supreme Court


considered an exception to felony treatment under the CSA that “makes marijuana


distribution punishable only as a misdemeanor if the offense involves a small


amount of marijuana for no remuneration.” 

Because the Georgia statute


under which the petitioner was convicted criminalized conduct that fell within the


CSA’s exception to felony treatment, the Supreme Court held that the petitioner’s


conviction was not an aggravated felony under the categorical approach. 

(“Moncrieffe’s conviction could correspond to either the CSA felony or the


CSA misdemeanor. Ambiguity on this point means that the conviction did not


                                         21
‘necessarily’ involve facts that correspond to an offense punishable as a felony


under the CSA.”).


      Contrary to Quito’s assertions, the Supreme Court’s decision in Moncrieffe


did not alter the legal principle that courts are to focus on only the statutory


definition of an offense in applying the categorical approach. Instead, the Court


explained that “a generic federal offense may be defined by reference to both


‘“elements” in the traditional sense’ and sentencing factors,” 

(quoting


Carachuri‐Rosendo v. Holder, 

, 572 (2010)), and the CSA’s exception to


felony treatment was relevant to that case only because “Congress . . . chose[] to


define the generic federal offense by reference to punishment,” 

Accordingly, we hold that, because they are not “elements” of an offense,


affirmative defenses are not relevant to the categorical approach, and we decline


to consider § 2252(c) here.




                                        22
      In sum, we conclude that § 263.16 categorically matches § 2252(a)(4)(B), and


thus the agency correctly determined that Quito’s conviction is an aggravated


felony rendering him removable under 8 U.S.C. § 1101(a)(43)(I), (U).


II. Waiver of Inadmissibility


      Finally, we lack jurisdiction to review Quito’s challenge to the agency’s


denial of a waiver of inadmissibility. Under the INA, our jurisdiction to review


such discretionary decisions is restricted to colorable constitutional claims and


questions of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D). A colorable constitutional claim


or question of law may arise “in fact‐finding which is flawed by an error of law”


or “where a discretionary decision is argued to be an abuse of discretion because


it was made without rational justification or based on a legally erroneous


standard.” Barco‐Sandoval v. Gonzales, 

, 39 (2d Cir. 2008) (internal


quotation marks omitted) (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 

,


329 (2d Cir. 2006)). However, “the mere assertion that an IJ has ‘abused his


discretion’ by ‘incorrectly weigh[ing] the evidence, fail[ing] to explicitly consider


                                         23
certain evidence, [or] simply reach[ing] the wrong outcome’ does not itself


establish a colorable ‘constitutional claim’ within the meaning of 8 U.S.C.


§ 1252(a)(2)(D), even if a petitioner ‘dress[es] up’ his claim in the language of due


process.” Bugayong v. INS, 

, 72 (2d Cir. 2006) (alterations in original)


(quoting Saloum v. U.S. Citizenship & Immigration Servs., 

(2d Cir.


2006)).


      Quito fails to raise a colorable constitutional claim or question of law


relating to the discretionary denial of his application for a waiver of


inadmissibility. As noted earlier, the immigration judge assumed that Quito was


eligible for a waiver of inadmissibility, but denied the waiver as a matter of


discretion based on Quito’s criminal history and his attempts to minimize his


culpability for the child pornography conviction. The BIA agreed that denial of


the waiver was warranted as a matter of discretion.            In challenging this


discretionary determination, Quito argues that the agency misinterpreted § 263.16


but, as explained above, the agency correctly interpreted that statute. Moreover,


                                         24
the agency is not bound by the categorical approach in determining whether a


petitioner warrants discretionary relief and may consider the facts and underlying


conduct surrounding a given conviction. See Wallace v. Gonzales, 

, 139


(2d Cir. 2006). Quito’s remaining arguments challenge how the agency weighed


the evidence and balanced the hardships in his case, which are discretionary and


factual issues that we lack jurisdiction to review. See Xiao Ji 

‐30.


                                  CONCLUSION


      Because we conclude that N.Y. Penal Law § 263.16 categorically matches


§ 2252(a)(4)(B), and because Quito’s challenge to the agency’s denial of his


application for a waiver of inadmissibility fails to raise a colorable constitutional


claim or question of law, we DENY the petition for review. The stay of removal


that the Court previously granted is VACATED.




                                         25