Kaufmann v. Holder , 759 F.3d 6 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2432
PETER HEINZ KAUFMANN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Justin Conlon on brief for petitioner.
Karen L. Melnik, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Assistant Attorney General, Civil
Division, and Douglas E. Ginsburg, Assistant Director, on brief for
respondent.
July 14, 2014
LYNCH, Chief Judge. Petitioner Peter Heinz Kaufmann, a
native of Germany, was convicted under Connecticut law for
possession of child pornography. This had immigration
consequences. The Board of Immigration Appeals ("BIA") found him
removable under 8 U.S.C. §§ 1101(a)(43)(I) and 1227(a)(2)(A)(iii).
He petitions for review, arguing that his admission in the state
proceeding to having images of children "having sex" is
insufficient to bring him within the federal statute's definition
of an aggravated felony of child pornography because the relevant
state law of conviction encompasses other conduct. His argument is
meritless, and we deny the petition for review.
I.
Petitioner, born in Germany in 1948, lawfully entered the
United States in 1959. In 1999, petitioner downloaded child
pornography onto his computer, paying for the images with a credit
card. In 2002, Connecticut police officers armed with a search
warrant entered petitioner's house and found at least five
pornographic images involving known minors on petitioner's
computer.
Petitioner pleaded guilty to state charges of possession
of child pornography under Connecticut law on November 22, 2004.
During the plea colloquy, the prosecutor explained to the judge
that petitioner had admitted that the images were of "children
having sex and it came from Russia." Petitioner was given a
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suspended sentence of five years along with ten years of probation.
Petitioner does not deny making the admission.
On April 8, 2013, the Department of Homeland Security
("DHS"), based on the Connecticut conviction, charged petitioner
with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which
provides that "[a]ny alien who is convicted of an aggravated felony
at any time after admission is deportable." See also 8 U.S.C.
§ 1101(a)(43)(A), (I).
In an oral decision on June 4, 2013, an Immigration Judge
("IJ") found that petitioner was removable as an aggravated felon
and ordered his deportation to Germany. Petitioner appealed to the
BIA, which dismissed the appeal and affirmed the order of removal
on October 17, 2013. This petition for review followed.
II.
Ordinarily, courts lack jurisdiction to review the BIA's
finding that an alien is removable on the basis of having committed
a criminal offense. See 8 U.S.C. § 1252(a)(2)(C). However, we
retain jurisdiction to review constitutional claims or questions of
law raised in such a case. See id. § 1252(a)(2)(D). This petition
for review presents a single question of law, so we have
jurisdiction to address only that question.
We review the BIA's legal conclusion de novo, granting
some deference to its reasonable interpretation of the statutes and
regulations within its purview. See Liu v. Holder, 714 F.3d 56, 59
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(1st Cir. 2013). Because the BIA "conducted an independent
evaluation of the record and rested its decision on a self-
generated rationale," our review is focused on the BIA's decision
rather than the IJ's. Gonzalez v. Holder, 673 F.3d 35, 38 (1st
Cir. 2012) (quoting Zheng v. Holder, 570 F.3d 438, 440 (1st Cir.
2009)) (internal quotation mark omitted).
The BIA concluded that petitioner was removable for
having been convicted of an aggravated felony of child pornography
as described in 18 U.S.C. §§ 2251, 2251A, or 2252.1 See 8 U.S.C.
§ 1101(a)(43)(I). Those provisions, in relevant part, outlaw the
possession of "any visual depiction . . . of a minor engaging in
sexually explicit conduct." 18 U.S.C. § 2252. "Sexually explicit
conduct" is defined as "graphic sexual intercourse," "bestiality,"
"masturbation," "sadistic or masochistic abuse," or "exhibition of
the genitals or pubic area of any person." Id. § 2256(2). The BIA
concluded that petitioner's conviction necessarily fell within that
definition.
The Connecticut statute under which petitioner was
convicted criminalized the knowing possession of child
pornography.2 It defined child pornography as "any material
1
The BIA did not reach the IJ's separate conclusion that
petitioner's same conviction would also qualify as an aggravated
felony under 8 U.S.C. § 1101(a)(43)(A) as "sexual abuse of a
minor."
2
The statute was amended after petitioner's indictment but
before his conviction. He was tried and convicted under the old
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involving . . . photographic or other visual reproduction of a live
performance which depicts a minor in a prohibited sexual act."
Conn. Gen. Stat. § 53a-193(13) (2003). "Prohibited sexual act," in
turn, was defined as "erotic fondling, nude performance, sexual
excitement, sado-masochistic abuse, masturbation or sexual
intercourse." Id. § 53a-193(3). Petitioner focuses on the
definition of "erotic fondling," as "touching a person's clothed or
unclothed genitals, pubic area, buttocks, or if such person is a
female, breast." Id. § 53a-193(5). His argument is that this
fondling of clothed areas makes the Connecticut statute broader
than the federal statute. Specifically, the Connecticut statute
criminalizes possession of depictions involving touching of a
minor's clothed buttocks or female breasts, while the federal
statute does not. From this he says the government did not meet
its burden of showing the state conviction fell under the federal
statute.
Ordinarily, we use a "categorical approach" to determine
whether a state conviction fits within the federal definition for
purposes of the Immigration and Nationality Act. See Campbell v.
Holder, 698 F.3d 29, 34 (1st Cir. 2012). Under that approach, we
examine whether the elements of the state crime of conviction
version of the statute, which was operative at the time he
committed the crime.
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necessarily indicate that the elements of the federal crime were
present. See Taylor v. United States, 495 U.S. 575, 600-01 (1990).
However, when a statute is divisible into multiple
offenses or theories of liability, some of which satisfy the
definition under the federal statute and some of which do not, we
apply a "modified categorical approach." Descamps v. United
States, 133 S. Ct. 2276, 2283-84 (2013). Under the modified
categorical approach, we may look to the record of conviction to
determine whether the petitioner was convicted under one of the
provisions that does satisfy the federal definition. See Patel v.
Holder, 707 F.3d 77, 80-81 (1st Cir. 2013). When using this
approach, we will find that a state conviction fits the federal
definition only if the record shows as much through "necessary"
inferences; merely "reasonable" inferences are insufficient. Id.
at 82-83 (quoting Renteria-Morales v. Mukasey, 551 F.3d 1076, 1085
(9th Cir. 2008)) (internal quotation marks omitted). Petitioner
argues that the government's inference is no more than reasonable.
We may appropriately review the transcript of the plea
colloquy. See Shepard v. United States, 544 U.S. 13, 16 (2005).
That is the source of petitioner's admission that the images
portrayed children "having sex."
Petitioner argues that the term "having sex" is
ambiguous, and that the BIA could not necessarily conclude that his
conviction fits within the definition found in 8 U.S.C.
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§ 1101(a)(43)(I). Petitioner supports his argument with multiple
social science studies concluding that people ascribe a range of
meanings to the term "sex" or "have sex."
Petitioner's argument misses the point. The fact that a
term may carry multiple meanings does not render it meaningless.3
His real and equally fallacious argument is that the admission that
the children photographed were "having sex" could reasonably mean
he was convicted under the clothed sexual fondling part of the
statute. But no reasonable person would ascribe that meaning to
the term "have sex." Further, none of the social science sources
petitioner relies on support that definition.
Since the plea colloquy established that the pictures
showed children "having sex," the BIA correctly concluded that it
necessarily established as well that the conviction did not fall
outside the scope of the federal statute, 8 U.S.C.
§ 1101(a)(43)(I). Petitioner is removable. The petition for
review is denied.
3
The term "vehicle" in the context of theft laws, for
instance, may be subject to reasonable disagreement with respect to
some things (for example, would a non-motorized scooter qualify?),
but it is entirely clear as to others (for example, a car is a
vehicle, and a suitcase is not). The fact that it is unclear
whether a scooter is a vehicle does not change the fact that a
suitcase is not one. Cf. Massachusetts v. U.S. Dep't of Transp.,
93 F.3d 890, 893-94, 896-97 (D.C. Cir. 1996) (explaining that
statutory ambiguities "may be unclear in only one direction," and
concluding that even though statute was arguably ambiguous, it
nonetheless could not have the meaning the agency ascribed to it).
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