Good Moral Character for Citizenship - Puello v BCIS

PUELLO v. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES

Manuel PUELLO, Petitioner-Appellant, v. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, Respondent-Appellee.

Docket No. 06-0735-cv.

Argued Nov. 7, 2007. -- December 20, 2007

Before: CABRANES, SACK, and KATZMANN, Circuit Judges. 

Matthew L. Guadagno, (Jules E. Coven, Kerry W. Bretz, of counsel) Bretz & Coven, LLP, New York, NY, for Petitioner-Appellant.F. James Loprest, Special Assistant United States Attorney (Kathy S. Marks, Assistant United States Attorney, of counsel) for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellee.

This case calls on us to decide when a “conviction” occurs for purposes of the naturalization provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(f)(8) (as amended by the Immigration Act of 1990, Pub.L. 101-649, Title V, 104 Stat. 4978, 5051 (Nov. 29, 1990)).   The petitioner-appellant, Manuel Puello, appeals from a decision of the United States District Court for the Southern District of New York (John F. Keenan, J.) affirming the denial by the respondent-appellee Bureau of Citizenship and Immigration Services (BCIS) of Puello's application for naturalization.   Under the 1990 amendments to the INA, if a person is “convicted” of an aggravated felony after the date of enactment of the statute, November 29, 1990, that person is statutorily precluded from establishing the “good moral character” required for naturalization.  8 U.S.C. § 1101(f)(8);  8 C.F.R. § 316.10(b)(1)(ii).   In pertinent part, the INA defines “conviction” as a “formal judgment of guilt of the alien entered by a court.”  8 U.S.C. § 1101(a)(48)(A).   Puello pleaded guilty to an aggravated felony, conspiracy to possess cocaine with intent to distribute, on December 12, 1989.   He was sentenced on April 3, 1991, and the district court entered judgment against him on April 10, 1991.

Puello argues that the date of his conviction was the date of his guilty plea, which was before the amendment to the INA became effective.   BCIS contends, and the district court held, that the date of Puello's conviction was either his sentencing date or the date judgment was entered against him-both of which occurred after the amendment of the INA. If Puello is correct, the statute does not preclude him from proving his good moral character;  conversely, if BCIS is correct, Puello cannot prove his good moral character and is barred from naturalization.   We have not yet had occasion to address this question.   For the reasons stated below, we affirm the district court's decision.

Background

Petitioner-appellant Manuel Puello is a fifty-one year-old immigrant from the Dominican Republic.   He has been a lawful permanent resident of the United States since October 14, 1974, and is married to a United States citizen.   On September 21, 1989, a Southern District of New York grand jury indicted Puello on charges of possession with intent to distribute a controlled substance, and conspiracy to possess with intent to distribute a controlled substance, arising out of his negotiations to sell approximately two kilograms of cocaine to a confidential informant.   Puello pleaded guilty to the conspiracy count before United States District Judge Robert Patterson on December 12, 1989.   Puello's sentencing did not occur, however, until April 3, 1991, when Judge Patterson sentenced Puello to time served and four years of supervised release.   The clerk filed the Judgment in a Criminal Case on April 10, 1991.   The judgment indicates that the court sentenced Puello to a below-guidelines sentence on motion of the government as a result of Puello's substantial assistance, perhaps explaining the lengthy delay between Puello's guilty plea and his sentencing.

Puello applied for United States citizenship on October 5, 2001.   In his application, Puello responded affirmatively to the question asking whether he had ever been convicted of a crime.   On September 13, 2002, following an investigation, BCIS informed Puello that federal immigration regulations rendered him ineligible for naturalization.   In its decision denying Puello's application, BCIS noted that, under 8 C.F.R. § 316.2(a)(7), an applicant must establish that he “has been and continues to be a person of good moral character.”   BCIS then quoted 8 C.F.R. § 316.10(b), which states that an “applicant shall be found to lack good moral character, if the applicant has been ․ convicted of an aggravated felony ․ on or after November 29, 1990.”   The decision explained that Puello's federal conviction occurred on April 3, 1991.   Because Puello's conviction was for an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43)(B), he was therefore “precluded from establishing good moral character since [his] conviction occurred subsequent to November 29, 1990.”   Puello requested a review hearing, arguing that BCIS had erred:  According to Puello, his conviction occurred on December 12, 1989, the date of his guilty plea.   On February 28, 2003, the BCIS District Director affirmed the denial of Puello's application.

On June 6, 2003, Puello filed a petition for de novo review of the denial of his application in the United States District Court for the Southern District of New York. See 8 U.S.C. § 1421(c) (“A person whose application for naturalization under this subchapter is denied ․ may seek review of such denial before the United States district court․ Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law․”).  Both parties agreed to the material facts and moved for summary judgment.   The district court issued an opinion and order granting BCIS's motion for summary judgment and affirming the denial of Puello's application on December 13, 2005.   See Puello v. Bureau of Citizenship & Immigration Servs., 418 F.Supp.2d 436 (S.D.N.Y.2005).   The district court held that the date of Puello's conviction was either his sentencing date or the date the judgment was entered on the docket, both of which occurred after November 29, 1990.  Id. Puello timely filed this appeal.

Discussion

Standard of Review

We review de novo a district court's grant of summary judgment.   Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir.2003).   Summary judgment is properly granted when “there is no genuine issue as to any material fact and ․ the moving party is entitled to judgment as a matter of law.”   Fed.R.Civ.P. 56(c).  In this case, the parties agree to all material facts-the critical issue is the interpretation of the definition of “conviction” in the INA. We review such questions of statutory interpretation de novo.   Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 143 (2d Cir.2002).

The Meaning of the Word “Conviction” in the INA

In this case, our principal task is to determine whether, under the definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A), a “formal judgment of guilt of the alien entered by a court” occurs at the time of the alien's guilty plea to a criminal charge, or on the date of sentencing or entry of the judgment.  “Statutory construction ․ is a holistic endeavor.”  United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988).   To interpret the terms of a statute, we look first to the statutory language itself.   See Auburn Hous. Auth., 277 F.3d at 143 (citing Mallard v. United States Dist. Court, 490 U.S. 296, 300, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989)).  “Well-established principles of construction dictate that statutory analysis necessarily begins with the ‘plain meaning’ of a law's text and, absent ambiguity, will generally end there.”  Collazos v. United States, 368 F.3d 190, 196 (2d Cir.2004).  “In ascertaining the plain meaning of a statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.”  K Mart Corp. v. Cartier, 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988).   If the meaning of a statute is ambiguous, the court may resort to legislative history to determine the statute's meaning.   See Canada Life Assurance Co. v. Converium Ruckversicherung (Deutschland) AG, 335 F.3d 52, 57 (2d Cir.2003);  Auburn Hous. Auth., 277 F.3d at 143-44.   But in so doing, we must “construct an interpretation that comports with [the statute's] primary purpose and does not lead to anomalous or unreasonable results.”  Connecticut ex rel. Blumenthal v. United States Dep't of the Interior, 228 F.3d 82, 89 (2d Cir.2000) (citing Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982)).

It has long been a requirement that an applicant for naturalization demonstrate good moral character.   See, e.g., Repouille v. United States, 165 F.2d 152, 153 (2d Cir.1948) (construing the phrase “good moral character” in the predecessor to the Immigration and Nationality Act).   Prior to 1990, the INA barred aliens convicted of murder from demonstrating good moral character, but allowed aliens convicted of other felonies to attempt to meet that requirement.   In 1990, Congress amended the INA to provide that all aliens convicted of any aggravated felony would be statutorily precluded from establishing the necessary good moral character for naturalization.   The pertinent naturalization provision now reads:  “No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was-one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section).”  8 U.S.C. § 1101(f)(8).   The 1990 amendments also provided that this change “shall take effect on the date of enactment of this Act and shall apply to convictions occurring on or after such date.”   Immigration Act of 1990, § 509(b), 104 Stat. at 5051.   The date of enactment was November 29, 1990.

In 1996, Congress again amended the INA, for the first time adding to the statute a definition of the word “conviction”:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication has been withheld, where

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A).   In passing the statute, Congress made clear that it intended the new definition to apply retroactively.   Illegal Immigration Reform and Alien Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, Div. C., Title III-A § 322(c), 110 Stat. 3009-629 (1996) (applying the new definition to “convictions and sentences entered before, on, or after the date of enactment of this Act”).

There is no dispute that the crime for which Puello was convicted is an aggravated felony.   See 8 U.S.C. § 1101(a)(43)(B) (including among the list of aggravated felonies “illicit trafficking in a controlled substance”).   Nor is there any allegation that this case is governed by the provision of the definition defining what constitutes a conviction when adjudication has been withheld, which applies to situations where the defendant might mitigate the effects of his conviction through good behavior, successful completion of probation, or the like.   Thus, we focus only on the first prong of the definition, “formal judgment of guilt of the alien entered by a court.” ¹

We begin, as we must, by examining the language of statute, starting with the common meaning of the words in it.   See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) ( “Courts properly assume, absent sufficient indication to the contrary, that Congress intends the words in its enactments to carry their ordinary, contemporary, common meaning.”) (internal quotation marks omitted).   First, the definition uses the words “formal judgment,” the common meaning of which denotes a document signed by the judge and entered on the docket, as in Federal Rule of Criminal Procedure 32(k)(1):  “In the judgment of conviction, the court must set forth the plea, the jury verdict or the court's findings, the adjudication and the sentence․ The judge must sign the judgment, and the clerk must enter it.”   See Perez, 294 F.3d at 562 (noting that “it makes sense to define ‘formal judgment of guilt’ by reference to Rule 32[ (k)(1)'s] definition of ‘judgment of conviction’ ”).   While it is true, as Puello argues, that the language of Rule 32(k)(1) (“judgment of conviction”) is slightly different from the language of the INA definition (“formal judgment of guilt”), both terms center on the action the court must take to formalize the judgment.   Further, as the district court noted, 418 F.Supp.2d at 438, in other contexts the Supreme Court and this Court have considered the judgment to occur at the time of sentencing.   See, e.g., Corey v. United States, 375 U.S. 169, 174, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963) (noting that “the sentence is the judgment”) (internal quotation marks omitted);  United States ex rel. Mignozzi v. Day, 51 F.2d 1019, 1021 (2d Cir.1931) (noting that “the only judgment in a criminal case is the sentence”).   Puello does not suggest any alternative explanation for why Congress included the word “judgment” in the definition of “conviction,” especially with the common understanding of that word as a backdrop.

Additionally, the statutory definition of “conviction” speaks of a judgment “entered by a court,” the common understanding of which involves the entry on the docket of the document envisioned in Rule 32(k)(1), and not a guilty plea alone.   See, e.g., Fed. R.App. P. 4(b)(1)(A)(i) (noting that “a defendant's notice of appeal must be filed ․ within 10 days after the later of the entry of either the judgment or the order being appealed”);  United States v. Robinson, 473 F.3d 487, 490 (2d Cir.2007) (noting the rule that “we ordinarily lack jurisdiction to review decisions before sentencing is complete and a judgment of conviction has been entered”);  United States v. Rodriguez, 892 F.2d 233, 234 (2d Cir.1989) (referring to the date of the judgment as the date “[t]he judgment of conviction was actually entered in the criminal docket”).

Examination of the overall structure and operation of the statute lends added credence to BCIS's position.   See Auburn Hous. Auth., 277 F.3d at 144 (“The meaning of a particular section in a statute can be understood in context with and by reference to the whole statutory scheme, by appreciating how sections relate to one another.   In other words, the preferred meaning of a statutory provision is one that is consonant with the rest of the statute.”).   Construing a guilty plea alone as a “formal judgment of guilt” makes little sense in the context of the definition of “conviction” as a whole.   The definition discusses two types of convictions:  the first prong addresses cases in which a formal judgment of guilt has been entered, and the second prong addresses cases in which adjudication has been deferred or withheld, but where a plea or verdict of guilt has occurred and punishment has been imposed.   To find a “conviction” under the first prong, BCIS assesses only whether there is a “formal judgment of guilt,” while under the second prong BCIS must find both (i) a jury verdict, guilty plea, plea of nolo contendere, or admission of facts sufficient to warrant a finding of guilt, plus (ii) imposition of punishment.   8 U.S.C. § 1101(a)(48)(A).   The first prong stands in relief from the second-a “formal judgment of guilt” is different from a deferred adjudication only at the point of sentencing or entry of judgment.   Both procedures may involve the acceptance of a guilty plea.   If a guilty plea alone were sufficient to establish a “formal judgment of guilt,” then the second prong of the definition would be superfluous;  it would never matter if adjudication were deferred because the verdict or entry of the plea would be sufficient to constitute a “conviction.”   See Griffiths v. INS, 243 F.3d 45, 53 (1st Cir.2001) (holding that a notation of “guilty-filed” on the criminal docket could not constitute a conviction under the first prong of the INA conviction definition because “a formal judgment of guilt under the first prong of the definition entails a showing of something beyond a simple finding of guilt․ Otherwise the reference in the second prong of the statute to deferred adjudications where either a judge or a jury has ‘found the alien guilty’ would be rendered superfluous.”).   Puello's reading of the statute would therefore contravene our usual practice of rejecting a reading of a statute that would render a section of it superfluous.   See Tablie v. Gonzales, 471 F.3d 60, 64 (2d Cir.2006).  “[A] statute must, if reasonably possible, be construed in a way that will give force and effect to each of its provisions rather than render some of them meaningless.”  Allen Oil Co., Inc. v. Comm'r of Internal Revenue, 614 F.2d 336, 339 (2d Cir.1980).

Furthermore, construing a guilty plea alone to constitute a “conviction” would be a significant departure from normal criminal procedure and would present difficult practical problems applying the statute.   The Federal Rules of Criminal Procedure make clear that a guilty plea does not represent a final judgment-rather, acceptance of the plea is a step along the way to a final judgment.   Rule 11 contemplates the different posture of proceedings before and after sentencing, as a guilty plea may be withdrawn under some circumstances prior to sentencing, but never afterwards.   Compare Fed.R.Crim.P. 11(d) (“A defendant may withdraw a plea of guilty or nolo contendere ․ after the court accepts the plea, but before it imposes sentence if ․ the defendant can show a fair and just reason for requesting the withdrawal”) with Fed.R.Crim.P. 11(e) (“After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.”).   Puello's interpretation of the statutory definition appears to lead to the bizarre result that a withdrawn guilty plea would still be a “conviction” for immigration purposes, because the “conviction” would be established on the date of the entry of the plea.   We reject this reading because “[a] statute should be interpreted in a way that avoids absurd results.”   See United States v. Dauray, 215 F.3d 257, 264 (2d Cir.2000).

In support of his reading of the definition, Puello cites a provision of the United States Sentencing Guidelines dealing with career-offender status stating that the “date a defendant sustained a conviction shall be the date that the guilt of the defendant has been established whether by guilty plea, trial, or plea of nolo contendere.”  U.S.S.G. § 4B1.2(c).  But Puello's citation to the sentencing guidelines does him more harm than good.   The language Puello cites from U.S.S.G. § 4B1.2(c) was inserted into that provision to conform with similar language in U.S.S.G. § 4A1.2(a)(4). U.S. Sentencing Guidelines Manual app.   C, amend. 461 (1992).  Section 4A1.2 deals with how a district court should assess a defendant's prior conduct in determining his criminal history and defines “conviction” to ensure that the district court takes into account conduct for which the defendant has been found guilty but not yet sentenced.   As such, the Guidelines Commission made clear that it intended, in this section, that conviction attach to the guilty plea and not the “formal entry of judgment.”   See United States v. Driskell, 277 F.3d 150, 156-57 (2d Cir.2002).

Looking closely at the “conviction” definition in the INA demonstrates that its purpose is to contrast the run-of-the-mill “formal judgment of guilt” with a vast array of procedures states had devised to mitigate the effects of criminal convictions.   As such, defendants found guilty of an aggravated felony and sentenced would be treated uniformly, regardless of whether formal judgment was deferred or vacated.   See, e.g., Saleh v. Gonzales, 495 F.3d 17, 23 (2d Cir.2007);  Pinho v. Gonzales, 432 F.3d 193, 205 (3d Cir.2005);  Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000).   Also, because defining a “conviction” as a guilty plea alone would render the second prong of the INA's definition superfluous, we do not need to look to another statute's definition to construe that word's meaning in the INA. As the two texts serve substantially different purposes, as evidenced by their contrasting definitions of “conviction,” we allow the term to operate differently in different contexts.

Our examination of the language of the definition, in the context of the statute as a whole, leads us to conclude that “conviction” refers to the date on which judgment is entered on the docket, not the date on which a court accepts a guilty plea.

The Legislative History of the Conviction Definition

Because we believe the language in the statute is unambiguous, we need not examine legislative history to divine the statute's meaning. See Wetzler v. FDIC, 38 F.3d 69, 73 (2d Cir.1994).   But even assuming arguendo that the statute were ambiguous, our review of the legislative history demonstrates that it would not support Puello's position that Congress intended a guilty plea alone to constitute a formal judgment of guilt.

Before 1996 there was no statutory definition of the term “conviction” in the INA, and before 1988 the Board of Immigration Appeals (typically dealing with deportation, not naturalization) generally applied state-law definitions of conviction and took the position that if a state vacated or expunged an alien's conviction, the alien was no longer “convicted” under the INA. This resulted in confusion and disuniform results, particularly in the context of the varied approaches states took to ameliorating convictions, such as vacaturs after rehabilitation and deferred adjudications.   See Saleh, 495 F.3d at 23 (noting that “the BIA acknowledged ․ that its own prior approach was unduly deferential to state definitions of conviction and had thus frustrated congressional intent”);  Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000) (noting that the BIA was “[f]rustrated by the crazy quilt of anomalous results that flowed from widely disparate state rehabilitative and diversionary arrangements”).   Also, pursuant to a one-sentence Supreme Court opinion, the INS generally regarded convictions as not final until the defendant exhausted or waived all direct appeals.   See Moosa v. INS, 171 F.3d 994, 1000 n. 4 (5th Cir.1999) (citing Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955));  see also Marino v. INS, 537 F.2d 686, 691 (2d Cir.1976) (holding that, at that time, “an alien is not deemed to have been ‘convicted’ of a crime under the [INA] until ․ direct appellate review of the conviction ․ has been exhausted or waived.”) (citations omitted).

As a result, in 1988 the BIA attempted to ensure uniformity of treatment by fashioning a singular definition of “conviction” in In re Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  In Ozkok, the BIA stated that “[a]s in the past, we shall consider a person convicted if the court has adjudicated him guilty or has entered a formal judgment of guilt.”  Id. at 551.   The BIA then found that when adjudication is withheld a conviction would occur where (1) a judge or jury found the defendant guilty, or the defendant pleaded guilty or nolo contendere or admitted sufficient facts to warrant a finding of guilt;  (2) the judge had ordered some form of punishment;  and (3) a judgment or adjudication of guilty could be entered if the defendant violated the terms of his probation or failed to comply with the requirements of the court's order, without availability of further proceedings regarding the person's guilt or innocence of the original charge.  Id. at 551-52.

Congress, however, felt that the BIA's definition was not broad enough and crafted a new definition of conviction as part of the IIRIRA.   See Saleh, 495 F.3d at 23;  Francis v. Gonzales, 442 F.3d 131, 140 (2d Cir.2006).   In that definition, Congress essentially reproduced the Ozkok test, but eliminated its third requirement.   The Congressional Conference Committee Report accompanying passage of the bill notes Congress's intent to consider aliens “convicted” even in states where “a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien's guilt or innocence.” H.R. Conf. Rep. No. 104-828, at 224 (1996).   The report continues:  “This new provision, by removing the third prong of Ozkok, clarifies Congressional intent that even in cases where adjudication is ‘deferred,’ the original finding or confession of guilt is sufficient to establish a ‘conviction’ for purposes of the immigration laws.”  Id.

Although Puello has seized on the language quoted above regarding Congress's supposed “focus” on the “original ․ confession of guilt,” the report does not address specifically the question involved in this case.   The entirety of the commentary on the new definition of conviction focuses on the deferred-adjudication prong;  the language regarding “formal judgment of guilt” remains essentially unchanged from the Ozkok formulation.   IIRIRA did, however, eliminate the requirement that all direct appeals be exhausted or waived before a conviction is considered final under the statute.   See Abiodun v. Gonzales, 461 F.3d 1210, 1213 (10th Cir.2006);  Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir.2004);  Moosa, 171 F.3d at 1009.

Likewise, in the years since the passage of IIRIRA, most litigation over the definition of “conviction” has involved the definition's deferred-adjudication prong, particularly with respect to how various state schemes to expunge or vacate convictions implicate the statute.   Recently, in Saleh v. Gonzales, we noted that “the BIA identified two primary aims that it believed Congress sought to accomplish [in crafting a definition of conviction]:  to focus the conviction inquiry on the ‘original determination of guilt’ and to ‘implement a uniform federal approach.’ ”  495 F.3d at 23 (quoting Matter of Roldan-Santoyo, 22 I. & N. Dec. 512, 521-22 (BIA 1999)).   The BIA has taken the approach that convictions vacated for reasons other than the underlying merits remain convictions for purposes of the immigration laws, but convictions vacated because of substantive or procedural defects do not remain convictions for immigration purposes.   See In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003).   In Saleh, we found this interpretation of the statute reasonable under Chevron analysis, following numerous other circuits that have reached the same conclusion.  495 F.3d at 23;  see also Alim v. Gonzales, 446 F.3d 1239, 1250 (11th Cir.2006);  Pinho v. Gonzales, 432 F.3d 193, 209-10 (3d Cir.2005);  Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir.2005).   Puello argues that if a “conviction” can still exist for immigration purposes, even though it has later been expunged or vacated, the word “conviction” must mean a jury's verdict or the acceptance of a guilty plea without any further action by a court.

In all, Puello's argument amounts to a claim that the legislative history and the government's subsequent interpretation of the “conviction” definition demonstrate that the immigration laws treat an alien as convicted based solely on the finding of guilt, and not what happens afterward.   The crucial flaw in Puello's argument, however, is that all of the analysis and cases he cites interpret the second prong of the “conviction” definition, dealing with withheld adjudication.   It was in those cases that Congress was so concerned about fixing a date of conviction to ensure uniformity of treatment.   And even in those cases, a guilty plea alone does not constitute a “conviction”-the court must impose punishment as well.  8 U.S.C. § 1101(a)(48)(A)(ii).   In enacting IIRIRA, Congress had nothing new to say about the standard case in which a court found a defendant guilty, by way of either a verdict or a guilty plea, sentenced him or her, and entered a formal judgment on the docket.   In those run-of-the-mill cases, it is clear from the language and operation of the statute that Congress did not intend that a guilty plea alone would constitute a “conviction.”

Retroactivity

Puello also argues that the application of the INA's definition of “conviction” is impermissibly retroactive, apparently claiming that when he entered his guilty plea he did so with the expectation that he would not be barred from later establishing his good moral character for naturalization.

Puello's claim is without merit because the amendments were not applied retroactively to him.   The 1990 amendment to the INA applied to “convictions occurring on or after” the date of enactment, November 29, 1990.   Immigration Act of 1990, Pub.L. No. 101-649, Title IV, § 509, 104 Stat. 4978, 5051 (Nov. 29, 1990).   To the extent Puello claims to have relied on the status quo at the time of his guilty plea, that reliance is misplaced.   Because, as discussed above, even at the time of Puello's guilty plea, defendants were not deemed convicted under the INA until sentencing at the earliest, Puello was not convicted of his offense until after passage of the INA amendments.   And there is no evidence that Puello's guilty plea was an attempt to finalize his conviction in advance of passage of the 1990 amendments and thus avoid their impact.   See Boatswain v. Gonzales, 414 F.3d 413, 419 (2d Cir.2005) (noting that, in evaluating whether a statute operates retroactively, “we look[ ] for some indication ․ [that] the individual whose settled expectations were in question relied on a potential benefit in structuring his conduct”).   Had Puello been troubled by the effects of the passage of the amendment, he could have at least attempted to withdraw his guilty plea, which he did not do.

Moreover, Congress may permissibly apply a statute retroactively if it clearly communicates that intent.   See Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994);  Kai Tung Chan v. Gantner, 464 F.3d 289, 293 (2d Cir.2006).   When Congress amended the INA, it did so for all individuals convicted of felonious conduct after the effective date of the Act-not only for individuals who committed offensive conduct after the date of enactment of the Act. Given that Congress understood that convictions did not occur until sentencing, this language evinces clear Congressional intent that the amendments apply retroactively to those who had committed aggravated felonies, but had not yet been convicted.

To the extent that Puello bases his argument on the fact that Congress did not define conviction in the INA until 1996, Congress's explicit intent that the definition apply retroactively forecloses that argument.   See IIRIRA § 322(c), 110 Stat. 3009-629 (1996) (applying the new definition to “convictions and sentences entered before, on, or after the date of enactment of this Act”);  Moosa, 171 F.3d at 1007 (“Congress could not have more clearly expressed this intent than through its statement that § 322(a) was to apply to convictions entered before the date of IIRIRA's enactment.”) (emphasis in original).

Rule of Lenity

As a final alternative, Puello argues that because the statute is ambiguous, we should construe it in his favor under the rule of lenity.   The rule of lenity, however, “only comes into play when a court after looking at all aids to legislative meaning can do no more than ‘guess as to what Congress intended.’ ”  United States v. Cullen, 499 F.3d 157, 164 (2d Cir.2007) (quoting Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998)).   See also United States v. Hescorp, Heavy Equip. Sales Corp., 801 F.2d 70, 77 (2d Cir.1986) (noting that the rule of lenity “is a doctrine of last resort, to be used only after the traditional means of interpreting authoritative texts have failed to dispel any ambiguities”).   Because we have already determined that the plain meaning of the statute precludes Puello's interpretation, we need not resort to the rule of lenity.

Conclusion

In sum, we hold that, under the plain meaning of the definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A), the entry of a “formal judgment of guilt ․ by a court” occurs when judgment is entered on the docket, not when a defendant pleads guilty.   We also hold that the 1990 amendments to the INA were not impermissibly applied retroactively to Puello.   Therefore, the judgment of the district court is affirmed.

FOOTNOTES

1.   At the outset, we note that the Third Circuit has answered this question directly and held that the date of conviction under the statute is the date of either sentencing or entry of judgment on the docket.   See Perez v. Elwood, 294 F.3d 552, 562 (3d Cir.2002) (Becker, C.J.).   Although we have not yet squarely addressed the issue, in other cases interpreting the INA's definition of conviction we have assumed that a “formal judgment of guilt” connotes more than just a guilty plea.   See Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir.2004) (holding that an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that “Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt”);  Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir.2001) (holding in the deportation context that a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant “entered a plea of guilty, and the court entered a formal judgment of guilt”).

KATZMANN, Circuit Judge:

Divisibility of Criminal Statute in 2nd Circuit - James v. Mukasey

JAMES v. MUKASEY

Ushian Kayon JAMES, Petitioner, v. Michael B. MUKASEY,Attorney General, Respondent.

Docket No. 06-5163-ag.

Argued:  Dec. 14, 2007. -- March 25, 2008

Before:  CALABRESI, CABRANES, and SOTOMAYOR, Circuit Judges. 

Nita Dobroshi, Law Offices of Spar & Bernstein, P.C. (Michelle Alexander, on the brief), New York, N.Y., for Petitioner.Janice K. Redfern, Office of Immigration Litigation, U.S. Department of Justice, (Peter D. Keisler, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, on the brief), Washington, D.C., for Respondent.

Petitioner Ushian Kayon James (“James”) petitions for review of an October 30, 2006 decision of the BIA affirming a July 27, 2006 order of removal by Immigration Judge (“IJ”) Alan A. Vomacka.   That order was based on a finding that James's state misdemeanor conviction for “Endangering the Welfare of a Child” was an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(A) (“sexual abuse of a minor”).

BACKGROUND

James, a twenty-seven-year-old native and citizen of Jamaica, was admitted to the United States in 1999 as a lawful permanent resident. Sometime in 2002, when he was twenty-two, he entered into a relationship with the daughter of a family acquaintance.   The details of the relationship are not entirely clear, but eventually James was charged with rape in the third degree, pursuant to New York Penal Law section 130.25.   The felony complaint-later reduced to a “misdemeanor information”-alleged that in February of 2003, James, then twenty-two years old, engaged in sexual intercourse with a sixteen-year-old female.   James pleaded guilty in the First District Court of New York, County of Suffolk, to “Endangering the Welfare of a Child,” pursuant to New York Penal Law section 260.10.² A conviction was entered on October 3, 2003, and James was sentenced to three years' probation.

On September 15, 2005, the Department of Homeland Security (“DHS”) issued James a Notice to Appear (“NTA”).   The NTA charged him with removability under 8 U.S.C. § 1227(a)(2)(E)(i) for being convicted of “a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.”   The IJ held a removal hearing on November 29, 2005, at which James admitted the factual allegations in the NTA but denied the charge of removability.   In a motion to terminate the proceedings, James argued that DHS had not shown that he had been convicted of “child abuse” as defined in the Immigration and Nationality Act (“INA”).   DHS then lodged an additional charge of removability, pursuant to a different provision of the INA:  Under 8 U.S.C. § 1227(a)(2)(A)(iii), the DHS claimed, James was removable for having been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(A), namely sexual abuse of a minor.   James objected to this charge as well.

On July 27, 2006, the IJ issued an order denying James's motion to terminate and sustaining both charges of removability.   The IJ's decision was based on the facts alleged in the felony complaint.   Because that complaint had been converted into a misdemeanor information, pursuant to New York Criminal Procedure section 180.50,³ the IJ concluded that “the physical conduct described between [James] and the ․ complaining witness”-sexual intercourse-“is in fact the conduct [James] pleaded guilty to when he entered a plea of guilty to endangering the welfare of a child.”   The IJ then found that James's conviction “does constitute a crime of ‘child abuse’ or at the very least may be considered some type of ‘child neglect,’ ” under 8 U.S.C. § 1227(a)(2)(E)(i), and that it also constituted the aggravated felony of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A).

James appealed the aggravated felony finding to the BIA, arguing that the IJ had misapplied the law and that his 2004 marriage to a U.S. citizen made him eligible for adjustment of status, a form of relief “not made available to him at his immigration court hearing.”   In an order dated October 30, 2005, the BIA affirmed the IJ's decision.   First, the BIA decided that the statute of conviction, New York Penal Law section 260.10, was, under the law of this Circuit, divisible.   The BIA observed that, while that statute “does not explicitly refer to any type of sexual content,” it “encompasses some offenses which would qualify as ‘sexual abuse.’ ”   In such circumstances, the BIA noted, the Second Circuit allows the agency to “consult the judgment and charging papers in an effort to ‘narrow down the statutory options' and identify the precise offense of which the respondent was convicted.”   Then, citing the felony complaint and the plea transcript, the BIA determined that James was, in fact, convicted of a crime within the meaning of 8 U.S.C. § 1101(a)(43)(A).   As for James's adjustment of status claim, the BIA observed that James had not sought this form of relief below, that he had not submitted appropriate documentation, and that he had failed to comply with the procedures for filing a motion to reopen to seek adjustment of status, see 8 C.F.R. § 1003.2(c)(1).   Accordingly, the BIA found a remand unwarranted.

James filed with our Court a timely petition for review, in which he argues that his case should be remanded (1) because a conviction for Endangering the Welfare of a Child under New York law does not constitute an aggravated felony for purposes of the INA, (2) because the BIA exceeded its jurisdiction when it considered the facts underlying his conviction, and (3) because he is eligible for relief from removal in the form of adjustment of status.

DISCUSSION

I. Jurisdiction and Standard of Review

As of the codification of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, div. C., 110 Stat. 3009-546 (Sept. 30, 1996), we lack jurisdiction to review any final order of removal against an alien who is deportable because he or she was convicted of an aggravated felony, save for constitutional claims and questions of law.   8 U.S.C. § 1252(a)(2)(C). “This jurisdictional 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 v. Ashcroft, 258 F.3d 52, 54-55 (2d Cir.2001).   We retain jurisdiction, however, to determine whether this jurisdictional bar applies-that is, whether a petitioner satisfies the jurisdictional facts.  Id. at 55.  “The determination of our jurisdiction is exclusively for the court to decide.”  Id. (internal quotation marks omitted).

Here, the BIA adopted the IJ's reasoning and offered additional commentary.   Consequently, we review the decision of the IJ as supplemented by the BIA. Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.2008).   We must defer to the BIA's determination, in accordance with the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), when our jurisdiction depends on the definition of a phrase used in the INA, a statute that the BIA administers, and “when the intent of Congress is unclear and the agency's interpretation is reasonable.”  Mugalli, 258 F.3d at 55 (internal quotation marks omitted).   But when, in the course of interpreting the INA, the BIA has interpreted state or federal criminal laws, we review its decision de novo.  Id. In this case, then, “we defer to the BIA's interpretation of § 1101(a)(43)(A) in determining the meaning of ‘sexual abuse of a minor,’ ” but “[w]e give no deference ․ to the BIA's decision that [the petitioner's] conviction under New York law ․ meets the BIA's interpretation of ‘sexual abuse of a minor.’ ”  Id. at 56.

II. The Aggravated Felony Finding

A. Governing Law

Under the INA, “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.”  8 U.S.C. § 1227(a)(2)(A)(iii).   The INA defines “aggravated felony” to include “sexual abuse of a minor.”  8 U.S.C. § 1101(a)(43)(A).  “[T]he language of the statute yields no clear evidence,” however, “of congressional intent as to the scope of th[at] phrase,” Mugalli, 258 F.3d at 56, so the BIA has “invoke[d] ․ as a guide” the broad definition of “sexual abuse of a minor” in 18 U.S.C. § 3509(a), In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995-96 (B.I.A.1999).   According to section 3509, “the term ‘sexual abuse’ 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”;  “sexually explicit conduct” is also defined broadly, to include “actual or simulated ․ sexual intercourse, including sexual contact in the manner of genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or of opposite sex.”  18 U.S.C. § 3509(a).   We have found that the BIA's adoption of § 3509(a) is reasonable, and have accorded it Chevron deference.  Mugalli, 258 F.3d at 60.

B. Categorical and Modified Categorical Approaches

We have adopted a “categorical approach” to decide whether a crime of conviction fits within the definition of aggravated felony in § 1101(a)(43)(A).  Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir.2006) (per curiam).  “Under this approach ․ ‘the singular circumstances of an individual petitioner's crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant [.]’ ”  Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001) (alteration) (quoting Calabresi, J., dissenting in part, in Michel v. INS, 206 F.3d 253, 270 (2d Cir.2000)).   We have, however, modified this approach in one important respect:  When “a criminal statute encompasses diverse classes of criminal acts-some of which would categorically be grounds for removal and others of which would not-we have held that [the] statute [ ] can be considered ‘divisible’ ”;  the agency may then “refer[ ] to the record of conviction for the limited purpose of determining whether the alien's conviction was under the branch of the statute that permits removal.”   Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir.2003).  “The record of conviction includes, inter alia, the charging document, a plea agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy transcript.”  Wala, 511 F.3d at 108 (internal quotation marks omitted).

C. Remand is Appropriate To Allow the BIA To Consider Whether James's Statute of Conviction is Divisible

In this case, the BIA “first note[d] that [this] ․ matter has arisen within the jurisdiction of the United States Court of Appeals for the Second Circuit,” where, according to the BIA, “despite the general prohibition against inquiry into the factual circumstances of the crime underlying a removal order, a limited review of the record may be warranted where the statute of conviction is divisible.”   The BIA then reasoned that, since it is possible for a person to violate New York Penal Law section 260.10 with or without committing a sexual offense, the case law of our Circuit permits inquiry into James's underlying record of conviction. In other words, the IJ and BIA assumed that we would treat section 260.10 as divisible.   We have since made clear, however, that with regard to statutes of conviction like James's, the question of divisibility is an open one.  “Up to this point,” we observed recently in Dulal-Whiteway v. U.S. Department of Homeland Security, “we have explicitly found statutes divisible only where the removable and non-removable offenses they describe are listed in different subsections or comprise discrete elements of a disjunctive list of proscribed conduct”;  “we have not explicitly queried whether this logic extends to a statute ․ where only one type of generic conduct ․ is proscribed, but an alien can commit the conduct both in ways that would render him removable ․ and in ways that would not․” 501 F.3d 116, 126-27 (2d Cir.2007) (emphasis added).   The statute in Dulal-Whiteway (proscribing fraud to obtain things valuing over $1,000) is one such a statute.  Id. at 126.   The statute in this case is another.⁴

We further observed in Dulal-Whiteway that there are at least three ways of approaching such a statute-none of which we have explicitly adopted or rejected.   We could “find[ ] divisible only those statutes where the alternative means of committing a violation, some of which constitute removable conduct and some of which do not, are enumerated as discrete alternatives.”   Id. at 127 (emphasis added).   Or we could “take the position that all statutes of conviction may be considered ‘divisible’ regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct.”  Id. at 128.   And somewhere in the middle is a third approach, developed by the Third Circuit, under which a criminal statute may be considered divisible if either (1) the statute of conviction is phrased in the disjunctive or divided into subsections such that “some variations of the crime of conviction meet the aggravated-felony requisites and others do not,” or (2) the relevant removability provision “invite[s] inquiry into the facts underlying the conviction at issue.”  Singh v. Ashcroft, 383 F.3d 144, 161, 162 (3d Cir.2004).⁵  “Neither Supreme Court nor Second Circuit precedent,” we concluded in Dulal-Whiteway, “compels a conclusion one way or the other.”  501 F.3d at 127.⁶  And no case since Dulal-Whiteway has provided greater guidance as to how we would treat a statute like New York Penal Law section 260.10.   Accordingly, the IJ and BIA based their decision on an incorrect premise.

This is not a case in which we are clearly required to remand to the BIA for an initial decision on the divisibility of James's statute of conviction, for the BIA is not charged with the administration of this law.   See, e.g., INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (“Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.”);  Ming Lam Sui v. INS, 250 F.3d 105, 112-13 (2d Cir.2001) (noting that the BIA “is not charged with the administration of [state or federal criminal laws]”);  Michel, 206 F.3d at 262(“[C]ourts owe no deference to an agency's interpretation of state or federal criminal laws, because the agency is not charged with the administration of such laws.”).   Nevertheless, we deem it the wiser and more prudent course to give the BIA an opportunity to consider, in the first instance and in light of our recent pronouncements on this issue, whether New York Penal Law section 260.10 should properly be treated as divisible (thereby allowing inquiry into the facts underlying the conviction), or, rather, whether the categorical approach that we have applied in other cases precludes inquiry into the singular circumstances of James's crime.⁷

D. Parameters for Consideration of James's Record of Conviction

James has also argued on appeal that after deeming his statute of conviction divisible, the BIA impermissibly considered the details of the criminal complaint and the facts admitted in his plea minutes to determine whether he was convicted of an aggravated felony, even though he neither pleaded guilty to, nor was convicted of, the charge set out in the original complaint.   We need not reach the merits of this argument, since we are remanding this case to allow the BIA to assess the divisibility of James's statute of conviction.   But we note, for purposes of judicial economy, that several decisions of our Court-bearing directly on this issue-have come down since the BIA's decision in this case.

In Dulal-Whiteway, the petitioner was convicted of fraud and found removable on the basis of a restitution order attributing to him $20,824.09 in losses.  501 F.3d at 119.   We vacated the removal order.   Breaking new ground, we held “that the BIA, in determining whether an alien is removable based on a conviction for an offense set forth in the INA, may rely only upon information appearing in the record of conviction that would be permissible under the Taylor-Shepard approach in the sentencing context.”  Id. at 131.   That is, “[f]or convictions following a plea, the BIA may rely only upon facts to which a defendant actually and necessarily pleaded in order to establish the elements of the offense, as indicated by a charging document, written plea agreement, or plea colloquy transcript.”  Id. Since Dulal's record of conviction did not establish that his crime involved loss over $10,000, and since the amount of loss indicated in the restitution order “was not necessarily limited to the admissions in [Dulal's] plea or to the elements alleged,” the order of removal was improper.  Id. at 134.⁸

We reached a similar result in Wala, where the BIA determined that the petitioner had committed a crime involving moral turpitude (and was therefore removable) because, the BIA found, he intended to commit a permanent taking.  511 F.3d at 104-05.   We noted that the petitioner had admitted to taking various items from the victim's house, thereby establishing the elements of burglary with intent to commit a larceny under Connecticut law, but that he had not admitted to taking these items with the intent to appropriate them permanently.  Id. at 109.   We therefore vacated the removal order. “[A]lthough it may have been reasonable for the BIA to infer that Wala intended permanently to keep the items he admitted taking,” we explained, “the modified categorical approach does not permit the BIA to draw inferences of this kind.”  Id.

Finally, in the sentencing context, which has long informed our jurisprudence regarding aggravated felony findings under the INA, we recently remanded a case because it was unclear to what extent the District Court based its sentencing enhancement (for a “pattern of activity involving the sexual abuse or exploitation of a minor”) on unsubstantiated charged conduct.   See United States v. Juwa, 508 F.3d 694, 700-01 (2d Cir.2007).   We reminded the District Court that “[f]actual matters considered as a basis for sentence must have some minimal indicium of reliability beyond mere allegation,” and that “an indictment is not meant to serve an evidentiary function.   Its primary purpose is to acquaint the defendant with the specific crime with which he is charged․” Id. at 701 (internal quotations marks omitted) (alteration in original).

In this case, the IJ and BIA relied upon a factual allegation in the charging instrument-that James had sexual intercourse with a sixteen-year-old when he was twenty-two-to conclude that James was convicted of sexual abuse of a minor.   But this factual allegation was not “actually and necessarily pleaded” to in order to establish the elements of endangering the welfare of a child.   Dulal-Whiteway, 501 F.3d at 131.  New York Penal Law section 260.10 does not require engagement in sexual intercourse, see People v. Chase, 186 Misc.2d 487, 720 N.Y.S.2d 707, 708 (2d Dep't 2000), and James did not so plead;  he admitted to having had “sexual contact with a minor.”

“Sexual contact” does, of course, fall within the broad definition of “sexual abuse” that the BIA has adopted.   See Rodriguez-Rodriguez, 22 I. & N. Dec. at 996-97 (invoking 18 U.S.C. § 3509(a) as a guide in defining “sexual abuse”);  18 U.S.C. § 3509(a)(8), (9) (defining “sexual abuse” to include “sexually explicit conduct,” and “sexually explicit conduct” to include “sexual contact”).   But it is by no means clear that admitting to “sexual contact with a minor” under New York law would be enough to establish “sexual abuse of a minor” under the INA. For one thing, New York law has defined “sexual contact” to include “any touching,” whether by the victim or by the actor, “of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.”  N.Y. Penal Law § 130.   Thus, under New York law, a kiss on the mouth constitutes “sexual contact.”   See People v. Rondon, 152 Misc.2d 1018, 579 N.Y.S.2d 319, 320-21 (N.Y.Crim.Ct.1992) (“[T]his court holds that a kiss on the mouth without the insertion of a tongue can be considered a touching of an intimate part, constituting the essential element of sexual abuse.”);   see also People v. Morbelli, 144 Misc.2d 482, 544 N.Y.S.2d 442, 445-46 (N.Y.Crim.Ct.1989) (contact with the leg);  People v. Belfrom, 124 Misc.2d 185, 475 N.Y.S.2d 978, 980-81 (N.Y.Sup.Ct.1984) (contact with the navel).   This definition is broader than that of the federal statute from which the BIA has drawn guidance.   See 18 U.S.C. § 3509(a)(9)(A) (“[S]exual contact means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any person.”).

For another thing, New York law does not categorize as criminal sexual conduct “sexual contact” between persons of the ages that James and his victim were at the time of the offense.   And while such contact may result in a conviction for Endangering of the Welfare of a Child, that crime is not listed in the chapter of New York's penal code dealing with sex offenses.   See N.Y. Penal Law § 130, et seq.   For this reason, James's statute of conviction is distinguishable from the Connecticut statute that we considered in Santos.   See Santos, 436 F.3d at 325 (holding that where the petitioner pleaded guilty to violating a statute that criminalizes contact with the intimate parts of a child under the age of sixteen in a sexual and indecent manner, his conviction was one of sexual abuse of a minor under the INA).

In sum, should the BIA conclude that James's statute of conviction is divisible and that consultation of James's record of conviction is therefore appropriate, we urge the BIA to adhere to the principles we have set forth in Dulal-Whiteway, Wala, and Juwa. And should the BIA take into account James's admission of “sexual contact with a minor,” we encourage the BIA to consider carefully what that term means under New York law.

III. Eligibility for Adjustment of Status

At the end of his appellate brief, James submits that he is eligible for relief from removal in the form of adjustment of status, pursuant to 8 U.S.C. § 1255(a).   We lack jurisdiction to consider this claim because at the time of his hearing before the IJ, James had not filed an application for adjustment of status.   He has therefore failed to exhaust his administrative remedies with respect to this form of relief.   See 8 U.S.C. § 1252(d)(1), (b)(4)(A);  Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (stating that every category of relief a petitioner raises in this Court must first be raised before the agency).

CONCLUSION

For the foregoing reasons, we believe it prudent to allow the BIA to consider in the first instance whether, in light the fact that the divisibility of a statute like New York Penal Law section 260.10 is an open question in our Circuit, James's conviction for Endangering the Welfare of a Child under New York law constitutes the aggravated felony of sexual abuse of a minor under the INA. We lack jurisdiction, however, to consider James's eligibility for adjustment of status.   Accordingly, we Grant in part and Dismiss in part James's petition for review, Vacate the BIA's removal order, and Remand to the BIA for further proceedings consistent with this decision.

FOOTNOTES

2.   A person is guilty of endangering the welfare of a child under this statute when:1.  He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health;  or2.  Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an “abused child,” a “neglected child,” a “juvenile delinquent” or a “person in need of supervision,” as those terms are defined in articles ten, three and seven of the family court act.N.Y. Penal Law § 260.10. James was convicted pursuant to the first prong of the statute.

3.   This section permits the local criminal court to inquire into whether the facts and evidence relating to the conduct underlying a felony complaint provide a basis for charging the defendant with a non-felony offense, and if so, whether the charge should be so reduced.  N.Y.Crim. Proc. § 180.50(1).   If “the court is satisfied that there is reasonable cause to believe that the defendant committed an offense other than a felony,” § 180.50(2), and “[i]f the factual allegations of the felony complaint and/or any supporting depositions are legally sufficient to support the charge that the defendant committed the non-felony offense in question,” id. § 180.50(3)(a), the court may convert the felony complaint into an information, id. § 180.50(3)(a)(iii).

4.   New York Penal Law § 260.10 is divided into two subsections, but neither subsection is categorically “sexual abuse of a minor.”   Both subsections proscribe one type of generic conduct that can be committed in ways that would render a person removable and in ways that would not.

5.   According to Singh, a removability provision “invite[s] inquiry into the facts underlying the conviction” when, for example, “it expresses such a specificity of fact that it almost begs an adjudicator to examine the facts at issue.”  383 F.3d at 161.   A “prototypical example,” in the Third Circuit's view, is 8 U.S.C. § 1101(a)(43)(M)(i), which defines an “aggravated felony” to include an offense involving fraud or deceit “in which the loss to the victim or victims exceeds $10,000.”   Id. (internal quotation marks omitted).   An example of a removability provisions that does not invite such inquiry is 8 U.S.C. § 1101(a)(43)(J), which defines “aggravated felony” to include certain gambling and racketeering offenses “for which a sentence of one year imprisonment or more may be imposed.”  Id. at 162 (internal quotation marks omitted).   The Third Circuit also ultimately concluded that the removability provision at issue in the case before us, 8 U.S.C. § 1101(a)(43)(A), does not call for a factual investigation.   See id. at 164.

6.   We did not decide this issue in Dulal-Whiteway because the petitioner there had not challenged the divisibility of his statute of conviction.  Dulal-Whiteway, 501 F.3d at 128;  accord Wala, 511 F.3d at 109.   James, however, has consistently argued-before the IJ, before the BIA, and now before us-that he should not be found removable because his statute of conviction does not contain a “sexual element.”   In other words, he has submitted throughout these proceedings that, categorically, his crime is not one that constitutes “sexual abuse of a minor.”

7.   At oral argument, for the first time, the Government encouraged us to deem remand futile because of James's failure to appeal the IJ's decision regarding his removability under 8 U.S.C. § 1227(a).   In other words, the Government has argued that the same result-a finding of removability-will inhere no matter what occurs on remand. We reject this contention.   Should the BIA, on remand, conclude that James was not convicted of an aggravated felony, a bar to cancellation of removal would be eliminated.   See 8 U.S.C. § 1229b(a)(3) (providing that conviction of an aggravated felony renders an alien ineligible for cancellation of removal).   From the petitioner's perspective, then, the different possible outcomes of this remand have materially different consequences for the ultimate disposition of his case.

8.   The BIA has evinced some disagreement with Dulal-Whiteway.   See In re Babaisakov, 24 I. & N. Dec. 306, 317 (B.I.A. Sept. 28, 2007) (stating, in a case involving the removability provision at issue in Dulal-Whiteway, that no “sound legal principle ․ constrains inquiry to the record of conviction if the search [for information demanded by the removal statute] involves aspects of the crime that go beyond the elements of the offense”).   We express no opinion as to the validity of the BIA's decision, or to whether it is the kind of decision to which Chevron deference is due.

CALABRESI, Circuit Judge: