In Quito v. Barr, __ F.3d __ 2020 WL 218590 (2d Cir. Jan. 15, 2020) (Wesley, Livingston, Bianco), the Second Circuit held that attempted possession of a sexual performance by a child under N.Y. Penal Law §263.16 is an aggravated felony under the INA because it categorically fits the definition of the federal offense of possessing child pornography under 18 U.S.C. § 2252(a)(4)(B), an enumerated aggravated felony. The Court rejected petitioner’s arguments that the New York statute sweeps more broadly because it does not require knowledge of the minor’s specific age and does not include the affirmative defense to §2252(a)(4)(B) for someone who possessed fewer than three images and promptly destroyed them or turned them over.
The Court ruled, as a threshold matter, that it was not bound by its previous holding in Weiland v. Lynch, 835 F.3d 207 (2d Cir. 2016), that a “nearly identical” New York statute is an aggravated felony under the INA because these specific issues were not presented in that case. Op. At 9-10. This may be useful to defense lawyers raising new arguments about the sweep of state statutes.
The Court went on to hold that both the state and federal statutes require knowledge that the pornography depicts a minor but not knowledge of the minor’s specific age, so the scienter element is the same in both. The Court further held that an affirmative defense is not part of the definition of the crime for purposes of the categorical approach.