Flores v. Barr

17‐3421‐ag
Flores v. Barr
BIA
Buchanan, IJ
A095 051 190
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 29th day of October, two thousand nineteen.

PRESENT: JON O. NEWMAN,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
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EDSON FLORES,
Petitioner,

‐v‐ 17‐3421‐ag

WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.

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FOR PETITIONER: EDMUND HIRSCHFELD (Daniel A. Rubens, Andrew D.
Silverman, on the brief), Orrick, Herrington &
Sutcliffe LLP, New York, NY.

FOR RESPONDENT: REBEKAH NAHAS, Trial Attorney (Derek C. Julius,
Assistant Director; Margaret Kuehne Taylor, Senior
Litigation Counsel, on the brief), for Joseph H. Hunt,
Assistant Attorney General, Office of Immigration
Litigation, United States Department of Justice,
Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (ʺBIAʺ) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is GRANTED, the BIAʹs decision is VACATED,

and the case is REMANDED.

Petitioner Edson Flores, a native and citizen of Honduras, seeks review of

an October 17, 2017, decision of the BIA affirming a March 22, 2017 decision of an

Immigration Judge (ʺIJʺ) denying his application for cancellation of removal. In re

Edson Flores, No. A095 051 190 (B.I.A. Oct. 17, 2017), affʹg No. A095 051 190 (Immig. Ct.

N.Y. City Mar. 22, 2017).

We review the IJʹs decision as modified and supplemented by the BIA.

Gertsenshteyn v. U.S. Depʹt of Justice, 544 F.3d 137, 142 (2d Cir. 2008). We assume the

partiesʹ familiarity with the underlying facts and procedural history in this case, which

we reference only as necessary to explain our decision to grant the petition and remand

for the BIA to have the opportunity to address in a precedential decision whether a

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conviction for first‐degree sexual abuse under New York Penal Law (ʺNYPLʺ)

§ 130.65(3) is a crime involving moral turpitude (ʺCIMTʺ) under the Immigration and

Nationality Act (ʺINAʺ).

I. Pereira Claim

As an initial matter, Flores argues that, under the Supreme Courtʹs

decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the agency lacked jurisdiction over

his removal proceedings because his Notice to Appear (ʺNTAʺ) did not provide a

hearing date or location. This argument is foreclosed by our decision in Gomez v. Barr,

922 F.3d 101, 112 (2d Cir. 2019) (ʺWe conclude that an NTA that omits information

regarding the time and date of the initial removal hearing is nevertheless adequate to

vest jurisdiction in the Immigration Court, at least so long as a notice of hearing

specifying this information is later sent to the alien.ʺ); see also Matter of Bermudez‐Cota, 27

I. & N. Dec. 441, 447 (B.I.A. 2018) (holding that an initial, defective notice that does not

indicate the date and time of a hearing can be cured if a subsequent notice of hearing

containing that information is provided). Although Floresʹs initial 2009 NTA did not

specify the date and time of his hearing in immigration court, he does not dispute that

he later received notice of his hearings at which he appeared.

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 II. Crime Involving Moral Turpitude

Flores challenges the agencyʹs determination that a conviction for first‐

degree sexual abuse under NYPL § 130.65(3) is a CIMT under 8 U.S.C. §

1227(a)(2)(A)(i)(I).

Although Flores is removable for his unlawful entry, the CIMT ruling

affects his ability to adjust his status. To adjust to lawful permanent resident status,

one must have been inspected and admitted or paroled into the United States and must

also meet the following three requirements: ʺ(1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible

to the United States for permanent residence, and (3) an immigrant visa is immediately

available to him at the time his application is filed.ʺ 8 U.S.C. § 1255(a). An alien who

has committed a CIMT generally cannot receive a visa or be admitted to the United

States. 8 U.S.C. §§ 1182(a)(2)(A)(i)(I). Such an alien, however, may be eligible for a

hardship‐based waiver of inadmissibility. 8 U.S.C. § 1182(h). Thus, if Floresʹs

conviction is not a CIMT, he can adjust his status without a waiver. Although the IJ

held that Flores did not warrant relief as a matter of discretion in light of his criminal

history, the BIA expressly declined to reach that issue. Accordingly, the determination

of whether Flores has committed a CIMT is material to the BIAʹs determination of his

eligibility for relief from removal. Because the BIA did not rely on the IJʹs alternative

discretionary denial, that finding is not before us.

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 The agency has adopted a categorical approach under which it looks to

the elements of the statute of conviction to determine whether a given crime is a CIMT.

Gill v. I.N.S., 420 F.3d 82, 89 (2d Cir. 2005); Matter of Silva‐Trevino, 26 I. & N. Dec. 826,

831 (B.I.A. 2016) (providing that the agency ʺwill examine the State or Federal statute

defining the crime of conviction to see if it fits within the generic definition of a crime

involving moral turpitudeʺ).

We generally defer to the BIAʹs definition of a CIMT, but we review the

BIAʹs interpretation of state law de novo. Gill, 420 F.3d at 89.1 We have given Chevron

deference to the BIAʹs general definition of a CIMT as an offense involving ʺconduct

that shocks the public conscience as being inherently base, vile, or depraved, and

contrary to the accepted rules of morality and the duties owed between persons or to

society in general.ʺ Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006) (quotation

marks and citations omitted). We have not yet, however, reviewed the BIAʹs

application of its CIMT definition to crimes involving sexual offenses against minors.2

ʺTo involve moral turpitude, a crime requires two essential elements:

reprehensible conduct and a culpable mental state.ʺ Matter of Silva‐Trevino, 26 I. & N.

1 We give deference to the BIAʹs interpretation of ambiguous terms in the immigration statute, so
long as that interpretation is a permissible construction of the statute. See Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
2 In other cases involving New York sexual abuse convictions, the petitioners did not challenge the
CIMT determination. See, e.g., Singh v. Lynch, 630 F. App’x 8 (2d Cir. 2015) (summary order). Moreover,
non‐precedential, unpublished BIA decisions like the one here are not entitled to Chevron deference. See,
e.g., Varughese v. Holder, 629 F.3d 272, 274 (2d Cir. 2010) (per curiam).
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Dec. at 834. Silva‐Trevino held that a Texas statute criminalizing sexual contact with a

minor under age 17 was not categorically a CIMT because the statute held the defendant

strictly liable by not requiring a culpable mental state (e.g., negligence, recklessness, or

knowledge) regarding the victimʹs age. Id. at 833‐36. In other words, a reasonable

mistake as to the victimʹs age and legal ability to consent was no defense to the Texas

crime. Id.

In 2017, the BIA held that a Maryland statute criminalizing sexual conduct

with minors under age 14 was categorically a CIMT, despite the fact that there was strict

liability with regard to the victimʹs age. Matter of Jimenez‐Cedillo, 27 I. & N. Dec. 1, 5

(B.I.A. 2017). The BIA distinguished the Maryland statute from the Texas statute in

Silva‐Trevino, reasoning that:

[W]here a statute criminalizing sexual conduct with a minor
necessarily involves either a particularly young victim or a
significant age difference between the perpetrator and a
victim under 16 years of age, the culpable mental state
element for a crime involving moral turpitude is implicitly
satisfied by the commission of the proscribed act.

Id. The Fourth Circuit vacated and remanded this decision, however, finding it

inconsistent with Silva‐Trevino and requesting further reasoning to support the BIAʹs

change in its approach to sexual offense statutes that do not allow for mistake‐of‐age

defenses. Jimenez‐Cedillo v. Sessions, 885 F.3d 292, 300 (4th Cir. 2018) (ʺIf it is the Boardʹs

judgment that there should be a change in the Silva‐Trevino rule on mental culpability as

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to a victimʹs age, then it should provide the requisite ʹgood reasons for [any] new policyʹ

it adopts in this case.ʺ (quoting Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126

(2016))).

Flores was convicted under NYPL § 130.65(3), which provides that a

person is guilty of sexual abuse in the first degree when he ʺsubjects another person to

sexual contact . . . when the other person is less than 11 years old.ʺ New York defines

ʺsexual contactʺ as ʺany touching of the sexual or other intimate parts of a person for the

purpose of gratifying sexual desire.ʺ NYPL § 130.65(3). Like the Texas and Maryland

crimes discussed above, NYPL § 130.65(3) is a strict liability offense with respect to the

victimʹs age. See NYPL § 15.20(3) (providing that a mistake as to the victimʹs age is not

a defense unless the statute expressly states that it is); People v. Prise, 515 N.Y.S.2d 387,

391 (Sup. Ct. Kings Cty. 1987), aff’d, 543 N.Y.S.2d 117 (2d Dep’t 1989).

Here, the BIA reasoned that this offense required a culpable mental state

because the defendant must act for the purpose of sexual gratification. But the Texas

statute at issue in Silva‐Trevino also required acting for the purpose of sexual

gratification, and the BIA held that that statute was not a CIMT because there was no

culpable mental state regarding the victimʹs age. 26 I. & N. Dec. at 835. Instead of

discussing whether NYPL § 130.65(3) requires a culpable mental state regarding the

victimʹs age, the BIA cited its holding in Jimenez‐Cedillo that a conviction is a CIMT even

absent knowledge of age when the victim is under 14. However, the Fourth Circuitʹs

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2018 remand calls Jimenez‐Cedillo into question. We agree that the BIAʹs failure to

acknowledge or explain its departure from Silva‐Trevino requires a remand here as well.

See Mei Fun Wong v. Holder, 633 F.3d 64, 78 (2d Cir. 2011); see also Encino, 136 S. Ct. at

2126‐27.

The Government argues that NYPL § 130.65(3) implicitly contains the

requisite mental culpability because of how young victims must be under the statute.

The Government contends that, under a categorical approach, a defendant like Flores

ʺshould have knownʺ that the victim, who had to be under the age of 11 for there to be a

violation of NYPL § 130.65(3), was at least under the age of legal consent, which in New

York is 17. Respondentʹs Br. 37. While the argument is compelling, the agency did

not rely on this reasoning in its decision. As Flores argues, ʺwe may not supply a

reasoned basis for the agencyʹs decision that the agency itself has not given.ʺ Pub.

Citizen, Inc. v. Mineta, 340 F.3d 39, 53 (2d Cir. 2003) (quoting Motor Vehicle Mfrs. Ass’n of

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

Accordingly, we grant the petition and remand with instructions for the

BIA to further explain its CIMT determination. Although the BIA lacks authority to

rule on the constitutionality of the statutes it administers, see United States v. Gonzalez‐

Roque, 301 F.3d 39, 47‐48 (2d Cir. 2002), it may take Floresʹs constitutional vagueness

argument into account when determining the mental state required for a CIMT and

applying that mental culpability requirement to the New York statute. If the BIA

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concludes on remand that NYPL § 130.65(3) is a CIMT, it shall also address whether this

determination may be applied retroactively to Flores or others. See, e.g., Obeya v.

Sessions, 884 F.3d 442, 448 (2d Cir. 2018); Lugo v. Holder, 783 F.3d 119, 121 (2d Cir. 2015).

We have considered Floresʹs remaining arguments and conclude they are

without merit. Accordingly, for the foregoing reasons, the petition for review is

GRANTED, the BIAʹs decision is VACATED, and the case is REMANDED to the BIA

for further proceedings consistent with this order.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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