Kerr v. Garland ( 2023 )

21-6504
Kerr v. Garland
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 COURT’S
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 “SUMMARY ORDER”). A PARTY CITING 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
17th day of January, two thousand twenty-three.
PRESENT:
ROBERT D. SACK,
JOSEPH F. BIANCO,
ALISON J. NATHAN,
Circuit Judges.
_____________________________________
KADEEN KAMAR KERR,
Petitioner,
v. 21-6504
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: ROHMAH A. JAVED, Esq. (John H. Peng, on
the brief), for Karen Murtagh,
Executive Director, Prisoners’ Legal
Services of New York, Albany, NY.
FOR RESPONDENT: IMRAN R. ZAIDI, Trial Attorney, Office
of Immigration Litigation (Jennifer
J. Kenney, Assistant Director;
Lindsay B. Glauner, Senior Litigation
Counsel, on the brief), for Brian M.
Boynton, Principal Deputy Assistant
Attorney General, Civil Division,
United States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Kadeen Kamar Kerr, a native and citizen of Jamaica,
seeks review of an August 27, 2021 decision of the BIA, affirming
a December 15, 2020 decision of an Immigration Judge (“IJ”), which
ordered his removal to Jamaica. In re Kadeen Kamar Kerr, No. A058
826 330 (B.I.A. Aug. 27, 2021), aff’g No. A058 826 330 (Immigr.
Ct. Napanoch Dec. 15, 2020). We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and
the issues on appeal, which we refer to only as necessary to
explain our decision.
We have reviewed the decision of the IJ as supplemented by
the BIA. See Matthews v. Barr, 927 F.3d 606, 612 (2d Cir. 2019).
We defer to the agency’s definition of “crime of child abuse, child
neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i),
see Matthews, 927 F.3d at 616, but review de novo whether Kerr’s
conviction for endangering the welfare of a child in violation of
New York Penal Law (“NYPL”) § 260.10(1) satisfies that definition,
see Vasconcelos v. Lynch, 841 F.3d 114, 117 (2d Cir. 2016) (“Our
consideration of questions of law and the application of law to
undisputed facts is de novo.”); Vargas-Sarmiento v. U.S. Dep’t of
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Just., 448 F.3d 159, 164 (2d Cir. 2006) (“We review the BIA’s
interpretation of state or federal criminal laws de novo.”).
As we have explained, “[t]o determine whether a state
conviction is a removable offense as included on the INA's list,
we employ the ‘categorical approach,’ in which we ‘look not to the
facts of the particular prior case, but instead to whether the
state statute defining the crime of conviction categorically fits
within the generic federal definition.’” Williams v. Barr, 960
F.3d 68, 72 (2d Cir. 2020)(quoting Moncrieffe v. Holder, 569 U.S.
184, 190 (2013)). Within this framework, “[a] state offense makes
a categorical match with a generic federal offense only if a
conviction of the state offense necessarily involved facts
equating to the generic federal offense.” Id. (internal quotation
marks and citation omitted). Thus, in this analysis, “only the
minimum criminal conduct necessary to sustain a conviction under
a given statute is relevant.” Id. at 73 (internal quotation marks
and citation omitted). However, even if there is an apparent
categorical match between the state statute and the generic federal
definition, a petitioner can still prevail if he or she
demonstrates that there was a “realistic probability that a state
would apply the [state] statute to conduct beyond the generic
definition.” Id. at 78 (internal quotation marks and citation
omitted).
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In Matthews, we held that NYPL § 260.10(1) is an apparent
categorical match to the BIA’s definition of a crime of child
abuse. 927 F.3d at 618–20. NYPL § 260.10(1) provides, in
relevant part, that “[a] person is guilty of endangering the
welfare of a child when . . . [h]e or she knowingly acts in a
manner likely to be injurious to the physical, mental or moral
welfare of a child less than seventeen years old.” The agency
defines crime of child abuse as “any offense involving an
intentional, knowing, reckless, or criminally negligent act or
omission that constitutes maltreatment of a child or that impairs
a child’s physical or mental well-being.” Matthews, 927 F.3d at
612 (quoting Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512
(B.I.A. 2008)). The agency does not require “actual harm or injury
. . . so long as the state statute requires a sufficient risk of
harm to a child.” Id. Comparing these legal definitions in
Matthews, we concluded that “[t]his is not a situation . . . in
which the state statute, on its face, stretches further than the
BIA’s definition; instead, the state statute and the BIA’s
definition appear to be a categorical match.” Id. at 620. To the
extent that Kerr suggests that Matthews incorrectly gave Chevron
deference to the BIA’s interpretation of the crime of child abuse,
or Kerr otherwise argues that Matthews was wrongly decided, we
find no basis to depart from that binding precedent. See United
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States v. Gill, 748 F.3d 491, 502 n.8 (2d Cir. 2014) (“In our
Circuit, panels are bound by the decisions of prior panels until
such time as they are overruled either by an en banc panel of our
Court or by the Supreme Court.” (internal quotation marks and
citation omitted)).
Because New York’s statute appears to be a categorical match
with the BIA’s definition, Kerr is only entitled to relief if he
can demonstrate under the "realistic probability” standard “‘that
the State actually prosecutes the relevant offense in cases’ that
fall outside the federal definition.” Matthews, 927 F.3d at 620(quoting Moncrieffe, 569 U.S. at 206). More specifically, Kerr
must “point to his own case or other cases in which the state
courts in fact did apply the statute in the special (nongeneric)
manner for which [the petitioner] argues.” Id. (quoting Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)) (internal quotation
marks omitted). Kerr asserts, based on certain testimony at his
criminal trial, that his own conviction demonstrates that New York
applies its statute in a manner broader than the BIA’s generic
definition. Although this narrow argument is not foreclosed by
Matthews, id. at 620 (“Matthews does not argue that the facts
underlying his convictions do not match the BIA’s definition of a
crime of child abuse.”), we find Kerr’s contention unpersuasive
based upon the record.
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At the outset, we reject Kerr’s argument, raised for the first
time in his reply brief, that Pereida v. Wilkinson, 141 S. Ct. 754
(2021), places the burden on the government to prove that there
was no “realistic probability” that Kerr was convicted for conduct
broader than the BIA’s generic definition of a crime of child
abuse. In Matthews, we determined that even though “it is the
Government’s burden to prove removability . . . it is a
noncitizen’s burden to establish a realistic probability of being
convicted for conduct outside the federal definition, at least in
cases where the state and federal statutes appear to be a
categorical match.” 927 F.3d at 618. The decision in Pereida —
which concerned a petitioner’s burden to prove that he was not
convicted under a certain section of a state’s divisible statute
in order to demonstrate eligibility for the discretionary relief
of cancellation of removal — has no bearing on the allocation of
burdens under the realistic probability approach as set forth in
Matthews.
Here, Kerr has failed to meet his burden under the “realistic
probability” standard. Kerr was convicted by a jury of
endangering the welfare of his infant half-sister after the police
found large quantities of marijuana, loaded firearms, ammunition,
and cash in his bedroom in an apartment where he lived with his
infant half-sister, brother, two other adults, and two other
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children. At his trial, police officers testified that during the
search of the apartment, the bedroom door was open, and in the
bedroom they found a loaded firearm and bags of marijuana on top
of Kerr’s dresser, 1 as well as additional firearms and marijuana
inside his dresser and closet.
Based upon this evidence, the prosecutor argued in summation
that “anyone” in the house “could have had access to” Kerr’s
bedroom. Certified Administrative Record at 1272. Moreover, with
respect to the requisite elements of the crime, the jury was
instructed that it was required to determine whether Kerr, “on or
about August 15, 2013, . . . acted in a manner likely to be
injurious to the physical, mental or moral welfare of [his infant
half-sister] [and] that [Kerr] did so knowingly.” Id. at 1304.
Thus, the State’s evidence — that the police found loaded firearms
and marijuana in his bedroom (including on his dresser), to which
the door was ajar — along with the legal instruction provided to
1 This evidence, contrary to Kerr’s argument, distinguishes his
conviction from other cases where New York courts overturned a conviction
or dismissed a charge under NYPL § 260.10(1). See, e.g., People v.
Hitchcock, 98 N.Y.2d 586, 590, 592 (2002) (affirming the vacating of
defendant’s child endangerment conviction based on firearm possession
where defendant made efforts to conceal the firearm that was “wrapped
in rags, inside a stereo speaker hidden in a closet behind various items
of clothing and bags”); People v. Grajales, 686 N.Y.S.2d 608, 609–10
(Crim. Ct. 1999) (dismissing child endangerment charges where there was
no evidence to support the prosecution’s conclusory statement that the
marijuana was “out and accessible” and holding that “there must be some
facts . . . to show a nexus between the presence of the marihuana in the
apartment and potential or likely harm to the children”).
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the jury, demonstrate that Kerr’s conviction falls squarely within
the BIA’s generic definition of a crime of child abuse, which
merely “requires a sufficient risk of harm to a child.” Matthews,
927 F.3d at 612.
Kerr points to conflicting evidence he offered at trial to
support his argument that the contraband was locked in his room
and was inaccessible to the infant. For example, he emphasizes
that one of the adults living in the apartment testified that the
officers needed a device to unlock the bedroom door during the
search. However, there is no basis in the record to conclude that
the jury credited Kerr’s alternative version of the evidence. The
mere fact that there was conflicting evidence at trial as to
whether Kerr’s bedroom door was locked falls far short of
satisfying his burden of “demonstrat[ing] that the State actually
prosecutes the relevant offense in cases that fall outside the
federal definition.” 2 Matthews, 927 F.3d at 620 (internal
2 To hold otherwise would require immigration judges to conduct a mini-
trial whenever there was some evidence at the criminal trial that
conflicted with the government’s proof, even though the jury found the
petitioner guilty of the crime and the crime is an apparent categorical
match. That approach is more demanding for the government than the
legal standard for assessing the sufficiency of the evidence in criminal
cases, see Jackson v. Virginia, 443 U.S. 307, 319 (1979) (holding that
courts conducting review of the sufficiency of the evidence to support
a criminal conviction should view the “evidence in the light most
favorable to the prosecution”), and such re-litigation of the underlying
conviction supporting removability is “entirely inconsistent with both
the INA’s text and the categorical approach,” Moncrieffe, 569 U.S. at
200.
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quotation marks and citation omitted). As the Supreme Court
emphasized, the categorical approach’s “focus on the minimum
conduct criminalized by the state statute is not an invitation to
apply legal imagination to the state offense; there must be a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
[federal] definition of a crime.” Moncrieffe, 569 U.S. at 191(internal quotation marks and citation omitted). In short, Kerr’s
conviction does not demonstrate any realistic probability that New
York State applies NYPL § 260.10(1) to conduct that is broader
than the BIA’s generic definition of a crime of child abuse.
Accordingly, consistent with our holding in Matthews, the BIA did
not err in concluding that Kerr is removable.
We have considered Kerr’s remaining arguments and find them
to be without merit. For the foregoing reasons, the petition for
review is DENIED. All pending motions and applications are DENIED
and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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