The opinion of the court was delivered by: Judge, Rakoff, District Judge.*fn1
Submitted: September 2, 2010
Before: JACOBS, Chief Judge, RAGGI, Circuit
Petitioner seeks review of an October 23, 2009 decision of the Board of Immigration Appeals, dismissing his appeal from a June 1, 2009 decision of an immigration judge deeming him removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) and denying cancellation of removal, for his conviction of use of a child in a sexual performance in violation of N.Y. Penal Law § 263.05. DISMISSED.
DENNIS JACOBS, Chief Judge:
Petitioner Alexander Oouch, a native and citizen of Russia, was convicted of (inter alia) the use of a child in a sexual performance in violation of New York Penal Law ("N.Y.P.L.") § 263.05. Based on that conviction, the Department of Homeland Security issued a Notice to Appear, initiating removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii) for the aggravated felony of "sexual abuse of a minor" in 8 U.S.C. § 1101(a)(43)(A). On June 1, *fn1 Oouch was also convicted of N.Y.P.L. § 263.16, 2009, an immigration judge determined he was removable and ineligible for cancellation of removal.
The Board of Immigration Appeals ("BIA") dismissed his appeal on October 23, 2009, applying the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990), to determine that the conviction was an aggravated felony. The BIA reasoned that, although N.Y.P.L. § 263.05 is divisible, all divisions constitute sexual abuse of a minor, so that any conviction under the statute constitutes an aggravated felony.
Oouch filed a timely petition for our review, which presents a question of law: whether N.Y.P.L. § 263.05 constitutes an "aggravated felony" for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). We dismiss the petition.
An alien who has committed an aggravated felony can be removed from the country upon the order of the Attorney General. See 8 U.S.C. § 1227(a)(2)(A)(iii). We lack jurisdiction to review any final order removing an alien who committed an aggravated felony covered in § 1227(a)(2)(A)(iii). See § 1252(a)(2)(C). We retain jurisdiction, however, to determine constitutional claims and questions of law that arise from BIA proceedings. See § 1252(a)(2)(D). Whether an offense is an aggravated felony for purposes of the immigration laws is a question of law. See Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir. 2007). We review these legal and constitutional issues de novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir. 2007).
One category of aggravated felony is "sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). Oouch was charged with removability on that basis. We therefore consider, de novo, whether a violation of N.Y.P.L. § 263.05 constitutes "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A), with Chevron deference as to the BIA's construal of the Immigration and Nationality Act ("INA"), see Joaquin-Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir. 2006). The inquiry determines our jurisdiction: If Oouch's conviction is an aggravated felony, we must dismiss the petition for lack of jurisdiction; if not, we may exercise jurisdiction and vacate the order of removal. See Sui v. INS, 250 F.3d 105, 110 (2d Cir. 2001).
The BIA is charged with interpreting and enforcing the INA, including 8 U.S.C. § 1101(a)(43)(A). See § 1103(a)(1); 8 C.F.R. § 1003.1. The BIA's interpretation of the INA is entitled to the deference prescribed in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Joaquin-Porras, 435 F.3d at 178; Sui, 250 F.3d at 111-12. Congress provided no further definition of the term "sexual abuse of a minor" in § 1101(a)(43)(A). Since the ...