18‐996 Quito v. Barr UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2019 (Argued: November 12, 2019 Decided: January 15, 2020) Docket No. 18‐996 _____________________________________ SERGIO QUITO Petitioner, — v. — WILLIAM P. BARR, United States Attorney General, Respondent. _____________________________________ Before: WESLEY, LIVINGSTON, and BIANCO, Circuit Judges. Petitioner Sergio Quito, a native and citizen of Ecuador, seeks review of a March 19, 2018 Board of Immigration Appeals decision affirming an immigration judge’s September 13, 2017 decision denying his motion to terminate removal proceedings, his applications for a waiver of inadmissibility and readjustment of status, and ordering him removed. Petitioner argues that his conviction for attempted possession of a sexual performance by a child is not an aggravated felony and that the agency committed legal and factual errors in denying his application for a waiver of inadmissibility. Because we conclude that petitioner’s conviction is an aggravated felony and his remaining arguments fail to raise a colorable constitutional claim or question of law, we DENY the petition for review. CORY FORMAN, Cohen Forman Barone, LLP, New York, NY, for Petitioner. ANN M. WELHAF, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Stephen J. Flynn, Assistant Director, and Lynda A. Do, Trial Attorney, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. JOSEPH F. BIANCO, Circuit Judge: Petitioner Sergio Quito, a native and citizen of Ecuador, seeks review of a March 19, 2018 Board of Immigration Appeals (“BIA”) decision affirming an immigration judge’s September 13, 2017 decision denying his motion to terminate removal proceedings, his applications for a waiver of inadmissibility and readjustment of status, and ordering him removed. Quito argues that his conviction, after a guilty plea, for attempted possession of a sexual performance by a child under New York Penal Law (“N.Y. Penal Law”) § 263.16 is not an aggravated felony under the Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). He also asserts that the agency 2 erred in denying his application for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). Because we conclude that Quito’s conviction under N.Y. Penal Law § 263.16 is an aggravated felony, and his remaining arguments fail to raise a colorable constitutional claim or question of law, we deny the petition for review. BACKGROUND Quito entered the United States without inspection in 1994 and became a lawful permanent resident in 2007. In 2012, he was convicted, after a guilty plea, of attempted possession of a sexual performance by a child in violation of N.Y. Penal Law § 263.16. Based on that conviction, the Department of Homeland Security placed Quito in removal proceedings, charging him as removable for having been convicted of an aggravated felony, or an attempt to commit an aggravated felony, relating to child pornography under the INA. 8 U.S.C. § 1101(a)(43)(I), (U). 3 Quito denied removability and moved to terminate the proceedings. He argued that his conviction was not an aggravated felony because § 263.16 sweeps ...
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