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Quito v. Barr

United States Court of Appeals, Second Circuit

January 15, 2020

Sergio Quito Petitioner,
v.
William P. Barr, United States Attorney General, Respondent.

          Argued: November 12, 2019

         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.

          Before: Wesley, Livingston, and Bianco, Circuit Judges.

          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 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).

         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. 835 F.3d 207 (2d Cir. 2016) (per 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.

         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 § ...


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