21-6208

Debique v. Garland

United States Court of Appeals

for the Second Circuit

August Term 2022

Submitted: December 13, 2022

Decided: January 27, 2023

No. 21-6208

WAYNE PATRICK DEBIQUE,

Petitioner,

v.

MERRICK B. GARLAND,

United States Attorney General

Respondent.

On Petition for Review of an Order of

the Board of Immigration Appeals

Before: SACK, PARKER, and PARK, Circuit Judges.

Petitioner Wayne Patrick Debique seeks review of a decision of 

the Board of Immigration Appeals (“BIA”) dismissing his appeal 

from an order of an Immigration Judge (“IJ”) finding him removable 

under the Immigration and Nationality Act (“INA”). The IJ and BIA 

concluded that Debique is removable because his prior conviction for

sexual abuse in the second degree under N.Y. Penal Law § 130.60(2) 
2

is both (1) “sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A), which 

is an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii); and (2) 

“a crime of child abuse, child neglect, or child abandonment” under 

8 U.S.C. § 1227(a)(2)(E)(i).

We dismiss Debique’s petition in part and deny it in part. 

First, a conviction under N.Y. Penal Law § 130.60(2) constitutes 

“sexual abuse of a minor.” See Rodriguez v. Barr, 975 F.3d 188 (2d Cir. 

2020) (per curiam); Acevedo v. Barr, 943 F.3d 619 (2d Cir. 2019). 

“Sexual abuse of a minor” is defined as an “aggravated felony” under 

the INA, and we lack jurisdiction to review a final order of removal 

against an alien who committed an “aggravated felony.” See 8 

U.S.C. § 1252(a)(2)(C). We therefore dismiss Debique’s petition in 

part. Second, Debique has abandoned any arguments as to whether 

N.Y. Penal Law § 130.60(2) constitutes a “crime of child abuse,” so we 

decline to reach the issue and deny this aspect of the petition. 

Debique’s petition is thus DISMISSED in part and DENIED in part.

Judge Park concurs in a separate opinion.

Abadir Jama Barre, Barre Law, LLC, New York, NY, for 

Petitioner.

Brian Boynton, Acting Assistant Attorney General;

Jennifer J. Keeney, Assistant Director, Criminal 

Immigration Team, Office of Immigration Litigation;

Rebekah Nahas, Senior Litigation Counsel, Criminal 

Immigration Team, Office of Immigration Litigation, 

Civil Division, U.S. Department of Justice, for Respondent.
3

PER CURIAM:

Petitioner Wayne Patrick Debique seeks review of a March 26, 

2021 decision of the Board of Immigration Appeals (“BIA”)

dismissing his appeal from the October 29, 2020 order of an 

Immigration Judge (“IJ”) finding him removable under Sections 

237(a)(2)(A)(iii) and 237(a)(2)(E)(i) of the Immigration and 

Nationality Act (“INA”),1 denying his application for cancellation of 

removal under section 240A(a)(3) of the INA, 2 and ordering him 

removed. In re Debique, No. A099-985-678 (B.I.A. Mar. 26, 2021), aff’g 

No. A099-985-678 (Immigr. Ct. N.Y.C. Oct. 29, 2020). In his petition 

for review, Debique argues that the BIA and IJ erred because 

Debique’s New York state conviction for second-degree sexual abuse 

under N.Y. Penal Law § 130.60(2) is not “an aggravated felony” under 

8 U.S.C. § 1227(a)(2)(A)(iii) or “a crime of child abuse, child neglect,

or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i). Debique 

also seeks cancellation of removal under 8 U.S.C. § 1229b(a). 

Consistent with our decisions in Rodriguez v. Barr, 975 F.3d 188 

(2d Cir. 2020) (per curiam), and Acevedo v. Barr, 943 F.3d 619 (2d Cir. 

2019), we conclude that a conviction under N.Y. Penal Law § 130.60(2) 

is “sexual abuse of a minor.” “Sexual abuse of a minor” is defined 

as an “aggravated felony” under the INA, and we lack jurisdiction to 

review “any final order of removal against an alien who is removable 

by reason of having committed” an aggravated felony. 8 U.S.C. 

§ 1252(a)(2)(C). We therefore dismiss Debique’s petition in part. 

1 In subsequent references to these INA provisions, we cite the 

analogous sections of the U.S. Code: 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 

U.S.C. § 1227(a)(2)(E)(i), respectively.

2 In subsequent references to this INA provision, we cite the 

analogous section of the U.S. Code: 8 U.S.C. § 1229b(a).
4

Second, we conclude that Debique abandoned any argument related 

to whether his conviction constitutes a “crime of child abuse.” We 

therefore deny this aspect of Debique’s petition. 

I. BACKGROUND

A native of Trinidad and Tobago, Debique entered the United 

States legally as a visitor in 2001, and he became a lawful permanent 

resident in 2015. On October 17, 2019, Debique was convicted in 

New York state court of sexual abuse in the second degree under N.Y. 

Penal Law § 130.60(2), which makes it a crime to “subject[] another 

person to sexual contact and when such other person is . . . [l]ess than 

fourteen years old.” 

On March 3, 2020, the Department of Homeland Security

issued a Notice to Appear, alleging that Debique is removable under

(1) 8 U.S.C. § 1227(a)(2)(E)(i) as “an alien who at any time after entry 

has been convicted of a crime of domestic violence, a crime of 

stalking, or a crime of child abuse, child neglect, or child 

abandonment”; and (2) 8 U.S.C. § 1227(a)(2)(A)(iii) because “at any 

time after admission, [Debique has] been convicted of an aggravated 

felony as defined in Section 101(a)(43)(A) of the Act,3 a law relating 

to Murder, Rape OR Sexual Abuse of a Minor.” Certified 

Administrative Record (“CAR”) at 220. Debique denied both

charges and sought cancellation of removal. 

The IJ concluded Debique was removable as charged. First, 

the IJ found that Debique’s conviction under N.Y. Penal Law 

§ 130.60(2) was “sexual abuse of a minor” and thus an “aggravated 

3 In subsequent references to this INA provision, we cite the 

analogous section of the U.S. Code: 8 U.S.C. § 1101(a)(43)(A).
5

felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). Based on this finding, the 

IJ “pretermit[ted] [Debique’s] application for cancellation of removal” 

and denied the possibility of voluntary departure given “the severity 

of the underlying crime.” Id. at 64. Second, the IJ determined that 

Debique was removable under 8 U.S.C. § 1227(a)(2)(E)(i) as “an alien 

who has been convicted of a crime of child abuse, child neglect, or 

child abandonment,” which “includes sexual abuse of a minor.” Id.

This conclusion was based on the IJ’s initial finding that Debique had 

committed “sexual abuse of a minor.”

Debique appealed to the BIA, which dismissed his appeal and 

affirmed the IJ’s decision. First, the BIA held that N.Y. Penal Law 

§ 130.60(2) “is categorically an aggravated felony involving sexual

abuse of a minor” under 8 U.S.C. § 1227(a)(2)(A)(iii). Id. at 3. In In 

re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (B.I.A. 1999), the BIA 

“adopted the definition of ‘sexual abuse’ of a child contained in 18 

U.S.C. § 3509(a), as a guide in identifying the types of crimes that we 

would consider to be sexual abuse of a minor.” CAR at 4. In 

Mugalli v. Ashcroft, we afforded Chevron deference to RodriguezRodriguez’s interpretation of “sexual abuse of a minor.” 258 F.3d 52, 

56-60 (2d Cir. 2001). Applying these precedents, the BIA held that 

Debique’s conviction constitutes “sexual abuse of a minor” because it 

falls “within the meaning of either the use of a child to engage in 

sexually explicit conduct or the molestation or sexual exploitation of 

children as contained in 18 U.S.C. § 3509(a).” CAR at 4.

Second, the BIA affirmed the IJ’s conclusion that Debique’s 

conviction under N.Y. Penal Law § 130.60(2) constitutes “a crime of 

child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i). The BIA’s definition 

of a “crime of child abuse” is “any offense involving an intentional, 
6

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, including sexual abuse or exploitation.” Id. at 

5 (quoting In re Velazquez-Herrera, 24 I. & N. Dec. 503, 512 (B.I.A. 

2008)). The BIA, affirming the IJ, held that this broad definition of a 

“crime of child abuse” includes N.Y. Penal Law § 130.60(2). The BIA 

therefore dismissed Debique’s appeal. Debique filed a petition for 

review on April 4, 2021.4

II. DISCUSSION

When “the BIA adopts and affirms the IJ’s decision, we review 

the two decisions in tandem. We review all questions of law, 

including the application of law to facts, de novo.” Ojo v. Garland, 25 

F.4th 152, 159 (2d Cir. 2022) (cleaned up).

A. “Sexual Abuse of a Minor”

We lack jurisdiction to review Debique’s claims under 8 U.S.C. 

§ 1227(a)(2)(A)(iii) because his New York state conviction is “sexual 

abuse of a minor” and thus an “aggravated felony” under the INA.

1. Legal Standards

The INA provides that “no court shall have jurisdiction to 

review any final order of removal against an alien who is removable 

by reason of having committed a criminal offense covered in 

section . . . 1227(a)(2)(A)(iii)” for an aggravated felony. 8 U.S.C.

§ 1252(a)(2)(C). An “aggravated felony” includes “murder, rape, or 

sexual abuse of a minor.” Id. § 1101(a)(43)(A). “This jurisdictional 

4 On November 1, 2022, this Court denied Debique’s motion to stay 

his removal pending appeal.
7

bar arises if: (1) the petitioner is an alien; and (2) he is deportable 

under one of the offenses enumerated in 8 U.S.C. § 1101(a)(43).” 

Mugalli, 258 F.3d at 54-55. 

This Court has jurisdiction to determine whether this 

jurisdictional bar applies—i.e., whether Debique’s New York state 

conviction under N.Y. Penal Law § 130.60(2) constitutes “sexual 

abuse of a minor,” thereby making it an “aggravated felony.” See

Bell v. Reno, 218 F.3d 86, 89 (2d Cir. 2000). If Debique “is in fact 

removable because he was convicted of an aggravated felony . . . , we 

must dismiss his petition for lack of jurisdiction.” Sui v. INS, 250 

F.3d 105, 110 (2d Cir. 2001).

To determine whether a predicate offense qualifies as a 

removable offense under the INA, “we generally employ a 

‘categorical approach’ to determine whether the state offense is 

comparable to an offense listed in the INA. Under this approach 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 of a corresponding aggravated 

felony.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (cleaned up). 

“When a court reviews an agency’s construction of the statute 

which it administers, it is confronted with two questions.” Chevron, 

U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). 

First, we determine whether the statute is unambiguous. Id. “If the 

intent of Congress is clear, that is the end of the matter; for the court, 

as well as the agency, must give effect to the unambiguously 

expressed intent of Congress.” Id. at 842-43. At the first step, we 

must “employ[] traditional tools of statutory construction” to 

ascertain Congress’s intent. Id. at 843 n.9. Second, “if the statute is 
8

silent or ambiguous,” we ask “whether the agency’s answer is based 

on a permissible construction of the statute.” Id. at 843. This Court 

has recognized that BIA “precedential opinions interpreting the INA 

[may be] entitled to Chevron deference.” Florez v. Holder, 779 F.3d 

207, 211 (2d Cir. 2015).

2. “Sexual Abuse of a Minor” Under the INA

The INA does not define the term “sexual abuse of a minor,” so 

in Mugalli, this Court afforded Chevron deference to the BIA’s 

interpretation of that term. Mugalli, 258 F.3d at 60. Specifically, 

Mugalli deferred to the BIA’s decision in Rodriguez-Rodriguez, which 

looked to 18 U.S.C. § 3509(a)(8) as “a useful identification of the forms 

of sexual abuse” under the INA. Id. at 57 (quoting 22 I. & N. Dec. at 

995). Sexual abuse under 18 U.S.C. § 3509(a)(8) “includes the 

employment, use, persuasion, inducement, enticement, or coercion of 

a child to engage in, or assist another person to engage in, sexually 

explicit conduct or the rape, molestation, prostitution, or other form 

of sexual exploitation of children, or incest with children.” 

Rodriguez-Rodriguez also invoked Black’s Law Dictionary, which 

defines “sexual abuse” as “[i]llegal sex acts performed against a minor 

by a parent, guardian, relative, or acquaintance.” 22 I. & N. Dec. at 

996 (quoting Sexual Abuse, Black’s Law Dictionary 1375 (6th ed. 1990)). 

As noted in Mugalli, Rodriguez-Rodriguez treated 18 U.S.C. § 3509 as “a 

guide,” not “a definitive standard or definition.” Mugalli, 258 F.3d 

at 58 (quoting Rodriguez-Rodriguez, 22 I. & N. Dec. at 996). 

More recently, the Supreme Court held that “in the context of 

statutory rape offenses focused solely on the age of the participants,” 

“sexual abuse of a minor” under the INA is unambiguous. EsquivelQuintana v. Sessions, 137 S. Ct. 1562, 1572-73 (2017). The Court 
9

declined to afford the BIA Chevron deference and instead interpreted 

“sexual abuse of a minor” “using the normal tools of statutory 

interpretation.” Id. at 1569, 1572. But the Court suggested its 

holding was confined to “the context of statutory rape offenses

focused solely on the age of the participants,” “leav[ing] for another 

day” the interpretation of the “generic offense” of “sexual abuse of a 

minor.” Id. at 1572. After Esquivel-Quintana, we reaffirmed “our 

decision in Mugalli to grant deference to the BIA in its use of 18 U.S.C. 

§ 3509(a)(8) in identifying which crimes serve as [sexual abuse of a 

minor] under the INA.” Acevedo, 943 F.3d at 623. Per our 

“longstanding rule,” we are bound by Mugalli and Acevedo. In re 

Guo, 965 F.3d 96, 105 (2d Cir. 2020) (citation omitted).

3. N.Y. Penal Law § 130.60(2)

We conclude that N.Y. Penal Law § 130.60(2) constitutes the 

“aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. 

§§ 1227(a)(2)(A)(iii), 1101(a)(43)(A). Under § 130.60(2), “[a] person is 

guilty of sexual abuse in the second degree when he or she subjects 

another person to sexual contact and when such other person 

is . . . [l]ess than fourteen years old.”5 N.Y. Penal Law § 130.60.

5 In some cases, we apply the “modified categorical approach,” 

which allows “for limited review of the record” through a two-step process: 

(1) “we determine if the statute is ‘divisible,’ such that some categories of 

proscribed conduct render an alien removable and some do not,” and then 

(2) “we consult the record of conviction to ascertain the category of conduct 

of which the alien was convicted.” Lanferman v. BIA, 576 F.3d 84, 88-89 (2d 

Cir. 2009) (per curiam) (cleaned up). Under the modified categorical

approach, review of the record is limited to “inquiry into the fact of 

conviction of a specific offense but prohibits reference to or examination of 

the particular factual circumstances underlying that conviction.” Dickson v. 
10

Although we have not squarely held that a conviction under 

N.Y. Penal Law § 130.60(2) is “sexual abuse of a minor,” we recently 

held that a substantively identical provision is. See Rodriguez v. Barr,

975 F.3d 188, 194 (2d Cir. 2020) (per curiam) (holding that a conviction 

under N.Y. Penal Law § 130.65(3) constitutes “sexual abuse of a 

minor”). Compare N.Y. Penal Law § 130.65(3) (“A person is guilty of 

sexual abuse in the first degree when he or she subjects another person 

to sexual contact . . . [w]hen the other person is less than eleven years 

old[.]” (emphases added)), with N.Y. Penal Law § 130.60(2) (“A 

person is guilty of sexual abuse in the second degree when he or she 

subjects another person to sexual contact and when such other person 

is . . . [l]ess than fourteen years old.” (emphases added)). 

Following Rodriguez, it is clear that Debique’s conviction under 

N.Y. Penal Law § 130.60(2) is “sexual abuse of a minor” under the 

INA. Both statutes use the same definition of sexual contact, and we 

Ashcroft, 346 F.3d 44, 52 (2d Cir. 2003). 

A statute is divisible if it “list[s] elements in the alternative, and 

thereby define[s] multiple crimes.” Mathis v. United States, 579 U.S. 500, 

505 (2016); see also United States v. Moore, 916 F.3d 231, 238 (2d Cir. 2019)

(noting that a statute is divisible if it “delineates two methods of committing 

[a single] crime”). N.Y. Penal Law § 130.60 is a divisible statute because it

states that “[a] person is guilty of sexual abuse in the second degree“ if “he 

or she subjects another person to sexual contact“ and that other person is 

either (1) “[i]ncapable of consent by reason of some factor other than being 

less than seventeen years old,” or (2) “[l]ess than fourteen years old.” N.Y. 

Penal Law § 130.60. Applying the modified categorical approach, we may 

review the information charging Debique, which alleged that Debique 

“subject[ed] a child . . . who was less than fourteen years old, to sexual 

contact by touching her buttocks and placing his hand under her shirt on 

her bare skin and reaching towards her chest.” CAR at 196. 
11

have held that this definition of “sexual contact” is a categorical match 

to the generic federal offense, see Rodriguez, 975 F.3d at 195. The only 

difference between this case and Rodriguez is the element concerning 

the victim’s age: N.Y. Penal Law § 130.65(3) requires the victim to be 

under eleven years old, while § 130.60(2) requires the victim to be 

under fourteen years old. For present purposes, this distinction 

makes no difference. Debique points to no evidence that the generic 

federal definition of “sexual abuse of a minor” would somehow 

categorically exclude offenses committed against victims between the 

ages of eleven and fourteen.

To the contrary, various authorities imply that the generic 

federal definition of “sexual abuse of a minor” applies to crimes 

committed against “a minor” who is under fourteen years old. First, 

in Esquivel-Quintana, the Supreme Court held that under “the generic 

federal definition of sexual abuse of a minor” and “in the context of 

statutory rape offenses that criminalize sexual intercourse based 

solely on the ages of the participants,” the age of the victim must be 

“younger than 16.” 137 S. Ct. at 1568. Second, the BIA has 

extended the reasoning of Rodriguez-Rodriguez—the BIA decision to 

which we deferred in Mugalli and Acevedo—to hold that under the 

generic federal definition of “sexual abuse of a minor,” “[a] victim of 

sexual abuse is a ‘minor’ . . . if he or she is under 18 years of age.” In 

re V-F-D, 23 I. & N. Dec. 859, 862 (B.I.A. 2006). Third, at the time the 

INA was amended in 1996 to expand the definition of an “aggravated 

felony,” the term “minor” was likely understood to refer to 

individuals under the age of eighteen. See Minor, Black’s Law 

Dictionary 997 (6th ed. 1990) (“In most states, a person is no longer a 

minor after reaching the age of 18 . . . .”); In re V-F-D, 23 I. & N. Dec. 

at 862 (“We find that the broader age limitation in 18 U.S.C. 
12

§ 3509(a)(2) [of age eighteen and under] best reflects the diverse State 

laws that punish sexually abusive behavior toward children, the 

common usage of the word ‘minor,’ and the intent of Congress in 

expanding the definition of an aggravated felony to protect 

children.”). Finally, the BIA in 2002 agreed that a conviction under 

N.Y. Penal Law § 130.60 is “sexual abuse of a minor” under the INA. 

In re Small, 23 I. & N. Dec. 448, 449 (B.I.A. 2002). So the requirement 

under N.Y. Penal Law § 130.60(2) that the victim be “less than 

fourteen years old” does not sweep more broadly than the generic 

federal definition of “sexual abuse of a minor.” 6 Applying the 

reasoning of Rodriguez to the otherwise identical language of 

Debique’s statute of conviction, we conclude that a conviction under 

N.Y. Penal Law § 130.60(2) is a categorical match for “sexual abuse of 

a minor” under 8 U.S.C. § 1101(a)(43)(A) and therefore an 

“aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii).

Debique’s arguments to the contrary are unavailing. First, 

Debique erroneously claims that his case is different from Rodriguez

because his statute of conviction is labeled as a misdemeanor, not a 

felony. But the Supreme Court foreclosed a similar argument in 

Taylor v. United States, observing that “th[e] categorical approach[] 

extend[s] the range of predicate offenses to all crimes having certain 

6 We do not decide whether the generic federal definition of “sexual 

abuse of a minor” requires a minimum age differential or particular 

relationship between the perpetrator and victim. Cf. Esquivel-Quintana, 

137 S. Ct. at 1572 (“We leave for another day whether the generic offense 

requires a particular age differential between the victim and the 

perpetrator, and whether the generic offense encompasses sexual 

intercourse involving victims over the age of 16 that is abusive because of 

the nature of the relationship between the participants.”).
13

common characteristics . . . regardless of how they were labeled by 

state law.” 495 U.S. 575, 589 (1990) (emphasis added). Debique’s

“labeling” argument makes little sense under the logic of the 

categorical approach, which adopts a uniform, elements-driven 

method of interpretation to account for “the wide variation among 

states and localities in the ways that offenses are labeled.” Id. at 582 

(quoting S. Rep. No. 98-190, at 20 (1983)).

Second, our holding in Rodriguez defeats Debique’s argument 

that James v. Mukasey, 522 F.3d 250 (2d Cir. 2008), implies N.Y. Penal 

Law § 130.60(2) is broader than the generic federal definition of 

“sexual abuse of a minor.” In James, we observed that “under New 

York law, a kiss on the mouth constitutes ‘sexual contact’” under N.Y. 

Penal Law § 130, and “[t]his definition is broader than that of the 

federal statute from which the BIA has drawn guidance”—i.e., 18 

U.S.C. § 3509. James, 522 F.3d at 258. But the Rodriguez Court later 

rejected this “passing” dicta in James given that (1) “the New York 

law’s reference to ‘intimate’ body parts does not necessarily make the 

New York statute’s definition of sexual contact broader than that 

provided in the INA,” and (2) the “open-ended nature of the conduct 

covered by INA § 101(a)(43)(A).” Rodriguez, 975 F.3d at 193-94.

Debique’s conviction for second-degree sexual abuse under 

New York law is thus a categorical match for “sexual abuse of a 

minor,” an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). 

We dismiss this part of Debique’s petition for lack of jurisdiction.7 

See 8 U.S.C. § 1252(a)(2)(C).

7 Debique requests that this Court cancel his removal under 8 U.S.C. 

§ 1229b(a). But as the government correctly points out, “[t]he Attorney 
14

B. “A Crime of Child Abuse”

Debique has abandoned any argument that his conviction 

under N.Y. Penal Law § 130.60(2) is not “a crime of child abuse” 

under 8 U.S.C. § 1227(a)(2)(E)(i). Although 8 U.S.C. § 1252(a)(2)(C) 

deprives this Court of jurisdiction to review final orders of removal 

for “an alien who is removable by reason of having committed” one 

of several enumerated offenses, a “crime of child abuse” under 8 

U.S.C. § 1227(a)(2)(E)(i) is not such an offense. We therefore retain 

jurisdiction to “review . . . questions of law,” 8 U.S.C. § 1252(a)(2)(D), 

including whether Debique’s conviction under N.Y. Penal Law 

§ 130.60(2) is a “crime of child abuse, child neglect, or child 

abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i). We decline, 

however, to exercise jurisdiction here.

Under Federal Rule of Appellate Procedure 28(a)(8)(A), “the 

argument” in an appellant’s brief must contain “appellant's 

contentions and the reasons for them, with citations to the authorities 

and parts of the record on which the appellant relies.” “We consider 

abandoned any claims not adequately presented in an appellant’s 

brief,” and an appellant’s failure to make “legal or factual arguments” 

constitutes abandonment. Schwapp v. Town of Avon, 118 F.3d 106, 112 

(2d Cir. 1997). Under “the party-presentation rule,” we “‘normally 

decide only questions presented by the parties’ and may play only ‘a 

modest initiating role’ in shaping the arguments before” us. United 

General may cancel removal in the case of an alien who is inadmissible or 

deportable from the United States” only “if the alien . . . has not been 

convicted of any aggravated felony.” Id. § 1229b(a)(3). Debique’s New 

York state conviction constitutes an “aggravated felony” under 8 U.S.C. 

§ 1227(a)(2)(A)(iii), so he is ineligible for cancellation of removal.
15

States v. Graham, 51 F.4th 67, 80 (2d Cir. 2022) (quoting United States v. 

Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)). An “abandoned claim[] 

thus sounds in the party-presentation rule.” Id. (cleaned up).

Debique fails to argue that his New York state conviction does 

not constitute a ground for removal under 8 U.S.C. § 1227(a)(2)(E)(i). 

He claims only that § 1227(a)(2)(E)(i) “is overbroad,” Petr. Br. at 8, and 

cites In re Velazquez-Herrera, 24 I. & N. Dec. at 511-12, and Guzman v. 

Holder, 340 F. App’x 679 (2d Cir. 2009) (summary order), for support. 

The entirety of Debique’s point is that although the phrase “crime of 

child abuse” under the INA has been interpreted broadly, that “does 

not mean that its breadth is infinite.” Petr. Br. at 9. Debique, 

however, makes no “legal or factual arguments” as to 8 U.S.C. 

§ 1227(a)(2)(E)(i)’s application to his statute of conviction, nor does he 

explain why the BIA and IJ erred in their application of the categorical 

approach in his case. Schwapp, 118 F.3d at 112. 

Debique’s statement that the breadth of 8 U.S.C. 

§ 1227(a)(2)(E)(i) is not infinite “does not constitute compliance with 

[FRAP] 28(a): an appellant . . . must state the issue and advance an 

argument.” Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009) (citation 

omitted). Debique fails to do so and has thus abandoned any 

arguments as to 8 U.S.C. § 1227(a)(2)(E)(i). We therefore decline to 

reach this issue, especially given that Debique is independently 

removable under 8 U.S.C. § 1227(a)(2)(A)(iii). See INS v. Bagamasbad, 

429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and 

agencies are not required to make findings on issues the decision of 

which is unnecessary to the results they reach.”). This part of 

Debique’s petition is denied.
16

III. CONCLUSION

For the foregoing reasons, Debique’s petition for review is 

DISMISSED as to his 8 U.S.C. § 1227(a)(2)(A)(iii) claim and DENIED

as to his 8 U.S.C. § 1227(a)(2)(E)(i) claim.
21-6208

Debique v. Garland

PARK, Circuit Judge, concurring in the judgment:

I concur in today’s opinion because we are bound by our own 

precedent, even when it is dubious. In Acevedo v. Barr, 943 F.3d 619 

(2d Cir. 2019), we granted Chevron deference to the BIA’s 

interpretation of “sexual abuse of a minor” despite the Supreme 

Court holding just two years earlier in Esquivel-Quintana v. Sessions, 

137 S. Ct. 1562 (2017), that “sexual abuse of a minor” in another 

context was unambiguous. I write separately to explain my view 

that Acevedo erred in deferring to the BIA in light of the Supreme 

Court’s decision in Esquivel-Quintana.

In the classic formulation, at Chevron Step One we ask “whether 

Congress has directly spoken to the precise question at issue. If the 

intent of Congress is clear, that is the end of the matter.” Chevron, 

U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). We

“employ[] traditional tools of statutory construction” to “ascertain[]

that Congress had an intention on the precise question at issue.” Id.

at 843 n.9. If “the statute is silent or ambiguous with respect to the 

specific issue,” then Step Two asks “whether the agency’s answer is 

based on a permissible construction of the statute.” Id. at 843. 

In recent years, the Supreme Court has warned against too 

readily deferring to the agencies and has emphasized that Step One’s

command to employ the “traditional tools of statutory construction” 

means what it says. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 

1630 (2018) (declining to afford Chevron deference because “the canon 

against reading conflicts into statutes is a traditional tool of statutory 

construction and it, along with the other traditional canons . . . is 

more than up to the job of solving today’s interpretive puzzle” and 

where “the canons supply an answer, Chevron leaves the stage”
2

(cleaned up)); Pereira v. Sessions, 138 S. Ct. 2105, 2113-14, 2116 (2018) 

(declining to “resort to Chevron deference” and “to inject ambiguity 

into the statute” when “[t]he statutory text alone is enough” to 

conclude “Congress has supplied a clear and unambiguous answer to 

the interpretive question at hand”). 

In Esquivel Quintana, the Court applied this analytical rigor, 

rather than deferring to the BIA, to interpret “sexual abuse of a 

minor”—the same phrase at issue here. The Court first noted that 

“Section 1101(a)(43)(A) does not expressly define sexual abuse of a 

minor.” Esquivel-Quintana, 137 S. Ct. at 1569. But this statutory 

omission did not automatically imply ambiguity and agency 

deference. Instead, the Court proceeded to “interpret that phrase 

using the normal tools of statutory interpretation,” including 

dictionary definitions, the structure of the INA, a related federal 

statute, and evidence from state criminal codes. Id. at 1569-72.

But two years after the Supreme Court in Esquivel-Quintana 

found “sexual abuse of a minor” to be unambiguous, our Court in 

Acevedo decided the same phrase was ambiguous. See Acevedo, 943 

F.3d at 623. Acevedo noted in three brief sentences that “‘sexual 

abuse of a minor’ is not defined by the INA”; “[t]he INA also does not 

incorporate by reference any definition in the criminal code”; and the 

INA’s legislative history is “similarly unhelpful.” Id. Acevedo 

simply reaffirmed our decision in Mugalli v. Ashcroft, 258 F.3d 52 (2d 

Cir. 2001), to defer to the BIA because Esquivel-Quintana “did not 

foreclose” the BIA’s interpretation of “sexual abuse of a minor” “in 

other instances.” Acevedo, 943 F.3d at 623.

In my view, this quick resort to statutory ambiguity and agency 

deference was inconsistent with Esquivel-Quintana specifically and
3

with the Supreme Court’s teaching on Chevron generally. Although 

likely harmless to the outcome of this case, this type of interpretive 

shortcut raises separation-of-powers concerns. Chevron Step One

must have teeth to ensure that courts do not reflexively defer on 

matters of interpretation to the Executive. The Constitution 

exclusively vests the “judicial Power of the United States” in the 

federal judiciary, U.S. Const. art. III, § 1, and it is the “duty of the 

judicial department to say what the law is.” Marbury v. Madison, 5 

U.S. (1 Cranch) 137, 177 (1803). Uncritical deference to an executive 

agency “tell[s] those who come before us” asking “what the law is” to 

“go ask a bureaucrat” instead. Buffington v. McDonough, 143 S. Ct. 

14, 18-19 (2022) (mem.) (Gorsuch, J., dissenting from the denial of 

certiorari). So Chevron Step One is at bottom a separation-of-powers 

decision. If a statute is unambiguous, then the courts retain 

interpretive control, but if it is deemed ambiguous, then executive

agencies take the helm (as long as their construction is “reasonable”).

Our job in this case is to interpret the phrase “sexual abuse of a 

minor,” a task that we as “[j]udges are trained to do” and that “can be 

done in a neutral and impartial manner.” Brett M. Kavanaugh, 

Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2154 (2016) 

(reviewing Robert A. Katzmann, Judging Statutes (2014)). 1 We 

should do our job.

In short, we decided Mugalli during an era of almost-reflexive 

Chevron deference. But in recent years, the Supreme Court has taken 

1 Chevron deference may be more suitable when a court is asked to 

interpret “broad and open-ended terms like ‘reasonable,’ ‘appropriate,’ 

‘feasible,’ or ‘practicable’” that may benefit from an executive agency’s 

technical expertise. Kavanaugh, supra, at 2153.
4

a more rigorous approach, as in Esquivel-Quintana. Our Court in 

Acevedo found statutory ambiguity without employing the 

“traditional tools of statutory construction.”2 This not only runs 

afoul of Supreme Court guidance, but it also risks offending 

separation of powers. For today, our Court is bound to follow 

Acevedo, so I join its opinion in full.

2 Other courts of appeals have similarly understood EsquivelQuintana to require a more searching analysis at Chevron Step One. See, 

e.g., Cabeda v. Att’y Gen. of the U.S., 971 F.3d 165, 185-86, 188 (3d Cir. 2020) 

(Krause, J., concurring in part) (criticizing circuit precedent for “wav[ing] 

the white flag of ambiguity far too readily, and without performing the 

rigorous analysis Esquivel-Quintana demands” such as “vigorous textual 

and contextual statutory analysis tailored to the precise interpretive 

question presented”); Diaz-Rodriguez v. Garland, 12 F.4th 1126, 1132 (9th Cir. 

2021) (noting that Esquivel-Quintana is “highly instructive” because “[a]fter 

observing that Congress had not defined the term ‘sexual abuse of a minor,’ 

the Court did not throw up its hands and declare the statute ambiguous” 

but “instead relied on the normal tools of statutory interpretation” (cleaned 

up)), vacated on other grounds, No. 13-73719, 2022 WL 17493613 (9th Cir. Dec. 

8, 2022) (en banc); Bastias v. U.S. Att’y Gen., 42 F.4th 1266, 1277 (11th Cir. 

2022) (Newsom, J., concurring) (“[T]he Supreme Court has taken pains to 

clarify that Chevron step one has teeth: We judges must actually do the hard 

work of statutory interpretation; we can’t just skip ahead to step two.”). It 

appears that five circuits reject the notion that the BIA’s interpretation of 

“sexual abuse of a minor” in Rodriguez-Rodriguez is entitled to deference. 

Cabeda, 971 F.3d at 195-97 (Krause, J., concurring in part) (collecting cases). 

By my count, at least the Second, Third, and Seventh Circuits continue to 

defer to the BIA’s interpretation of “sexual abuse of a minor” after EsquivelQuintana. See, e.g., Acevedo, 943 F.3d at 623; Cabeda, 971 F.3d at 171 

(majority opinion); Correa-Diaz v. Sessions, 881 F.3d 523, 527-28 (7th Cir. 

2018).