Before: WALKER, LIVINGSTON, and LYNCH, Circuit Judges.
31 Petitioner seeks review of an order of the Board of Immigration Appeals ("BIA") affirming 32 the decision of an Immigration Judge ("IJ") that found Petitioner removable as having been 33 convicted of an "aggravated felony" under Immigration and Nationality Act § 237(a)(2)(A)(iii), 34 8 U.S.C. § 1227(a)(2)(A)(iii). Because the BIA and IJ correctly found Petitioner's statute of 35 conviction to be divisible, and review of Petitioner's record of conviction shows that he was 1 convicted under a branch of the statute that constituted an aggravated felony, we DENY the petition 2 for review.
13 Petitioner Walter Eduardo Ganzhi ("Ganzhi"), a native and citizen of Ecuador, seeks review 14 of a May 5, 2009 order of the Board of Immigration Appeals ("BIA") affirming the October 24, 2007 15 decision of Immigration Judge ("IJ") Philip J. Montante, Jr., ordering Ganzhi "removed and 16 deported" as an alien who had been convicted of an aggravated felony under Immigration and 17 Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). See In re Walter Ganzhi, 18 No. A075 920 641 (B.I.A. May 5, 2009), aff'g No. A075 920 641 (Immig. Ct. Buffalo, N.Y. Oct. 24, 19 2007). Ganzhi argues that the BIA and IJ improperly found him removable, in that his conviction 20 for sexual misconduct pursuant to New York Penal Law ("NYPL") § 130.20 does not qualify as an 21 aggravated felony under the categorical approach employed in reviewing statutes of conviction and, 22 further, that section 130.20 is not "divisible" and therefore is not subject to the modified categorical 23 approach that permits a court to examine an alien's record of conviction in determining whether he 24 is removable. Ganzhi further contends that, even supposing that his statute of conviction is divisible, 25 the BIA and IJ erred by considering materials that were not a part of his record of conviction in making their determinations. Because the BIA and IJ correctly determined that Ganzhi's statute of 2 conviction is divisible, and because a review of Ganzhi's record of conviction demonstrates that he 3 was convicted pursuant to statutory provisions that constitute an aggravated felony, we deny the 4 petition for review.
6 Ganzhi arrived in the United States at an unknown location on August 28, 1995. On 7 September 30, 1998, he was arrested and subsequently charged with sexual misconduct and 8 endangering the welfare of a child in violation of NYPL §§ 130.20(1) and 260.10(2), pursuant to a 9 criminal information that specified, with respect to the sexual misconduct charge, that Ganzhi had 10 engaged in "sexual intercourse with a female without her consent" and that "[l]ack of consent was 11 due to the fact that the victim is deemed incapable of consent because she is less than 17 years of 12 age." After an adjustment of status interview in which he evidently failed to disclose the criminal 13 charges pending against him to immigration authorities, Ganzhi's immigration status was adjusted 14 to that of lawful permanent resident on November 16, 1999. He subsequently pled guilty to the 15 charge of sexual misconduct on December 13, 1999.
16 On July 29, 2004, the Department of Homeland Security ("DHS") initiated removal 17 proceedings against Ganzhi via a Notice to Appear, charging him as removable for having procured 18 his admission to the United States by fraud under INA §§ 212(a)(6)(C)(i), 237(a)(1)(A), 19 8 U.S.C. §§ 1182(a)(6)(C)(i), 1227(a)(1)(A), and as an alien convicted of an aggravated felony 20 under 8 U.S.C. § 1227(a)(2)(A)(iii), specifically a "crime of violence" as defined in INA 21 § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). The aggravated felony charge was later withdrawn and replaced with a charge of removability based on conviction for a crime involving moral turpitude 2 ("CIMT"), INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), but after Ganzhi filed a motion to 3 terminate his removal proceedings, in which he argued that he had not procured his admission by 4 fraud and that sexual misconduct did not constitute a CIMT, DHS once again added an aggravated 5 felony charge, this time contending that Ganzhi's conviction for sexual misconduct constituted the 6 aggravated felony of "sexual abuse of a minor," 8 U.S.C. § 1101(a)(43)(A).
7 Ganzhi filed a supplemental memorandum on June 9, 2005, arguing that his sexual 8 misconduct conviction did not constitute sexual abuse of a minor. In a written decision issued on 9 July 27, 2005, the IJ found Gaznhi removable as charged. The BIA vacated that ruling, however, 10 and remanded the proceedings because of the IJ's failure to provide Ganzhi with an individual 11 hearing on the matter.
12 On September 24, 2007, DHS withdrew without prejudice the removal charges based on 13 fraud and conviction for a CIMT, and the IJ held a hearing on the remaining issue, Ganzhi's 14 removability on the basis of having been convicted of the sexual abuse of a minor. The IJ issued a 15 written decision on October 24, 2007, in which he found that Ganzhi's sexual misconduct conviction 16 constituted sexual abuse of a minor, and ordered him removed to Ecuador on that basis.
17 The IJ first noted that "[i]n determining whether an alien's
conviction was for an offense that
18 renders him . . . removable under the federal immigration laws,
the BIA and [Second Circuit] have
19 employed a 'categorical approach.'" IJ Dec. & Order at 4 (quoting
Dulal-Whiteway v. U.S. Dep't
20 of Homeland Sec., 501 F.3d 116, 121 (2d Cir. 2007), abrogated on
other grounds by Nijhawan v.
21 Holder, 129 S. Ct. 2294 (2009)). Under that approach, a court
"look[s] to the elements and the
nature of an alien's offense of conviction, rather than to the
particular facts relating to the petitioner's
2 crime." Id. (quoting Dulal-Whiteway, 501 F.3d at 121). The IJ
also observed, however, that where
3 the statute of conviction "encompasses diverse classes of criminal
acts - some of which would
4 categorically be grounds for removal and others which would not -
the statute can be considered
5 'divisible,' permitting reference to the record of conviction for
the limited purpose of determining
6 whether the alien's conviction was under the branch of the statute
that permits removal." Id. While
7 NYPL § 130.20(1), pursuant to which Ganzhi had been convicted,
contains no reference to the age
8 of the victim, specifying only that a person is guilty when "[h]e
or she engages in sexual intercourse
9 with another person without such person's consent," the IJ observed
that another section of the penal
10 law defines "lack of consent" for the purposes of Article 130, and
indicates that the element of lack
11 of consent can be established by, inter alia, the victim's
incapacity to consent. See id. § 130.05(1)-
12 (2). Incapacity to consent, in turn, can be established pursuant
to any one of eight statutory
13 subsections, one of which looks to the age of the victim, and
establishes that a person is incapable
14 of consent if under the age of seventeen. See id. § 130.05(3).
"[S]ince some actions under this
15 statute would be considered removable, while others may not be,"
the IJ concluded that section
16 130.20(1) is divisible, and that it was appropriate to examine
Ganzhi's record of conviction. IJ Dec.
17 & Order at 5.
18 Although the IJ thus indicated how he reached his conclusion regarding divisibility, it is less 19 clear how he determined that Ganzhi actually had been convicted under a statutory provision that 20 rendered him removable. After finding the statute divisible, the IJ simply reiterated that one of the 21 statutory provisions makes "a person . . . incapable of consent when he or she is less than seventeen 1 years old." Id. (quoting NYPL § 130.05(3)). The IJ then stated "if the victim is found to be so, it 2 is a removable offense." Id. Earlier in his decision, the IJ had noted that at the time of the incident 3 giving rise to Ganzhi's conviction, Ganzhi's victim had been fifteen years old, and that Ganzhi had 4 "conceded to this conviction," but the IJ never explained how he concluded that Ganzhi had been 5 convicted under the specific statutory provision that made the victim's age relevant.
6 Ganzhi appealed the IJ's decision to the BIA. In an order dated May 5, 2009 the Board, 7 agreeing with the IJ's reasoning, determined Ganzhi's statute of conviction to be divisible, and 8 therefore concluded that it was appropriate to look to the record of conviction to determine the 9 branch of the statute under which Ganzhi had been ...