Garcia Pinach v. Bondi

22-6421(L)
Garcia Pinach v. Bondi
In the
United States Court of Appeals
For the Second Circuit
August Term, 2024
Nos. 22-6421 (L), 24-26 (CON)
JOAQUIN G ARCIA PINACH ,
Petitioner,
v.
PAMELA BONDI ,
U NITED S TATES A TTORNEY G ENERAL ,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals.
A RGUED: D ECEMBER 6, 2024
DECIDED: A UGUST 4, 2025
Before: S ACK, NARDINI, and LEE , Circuit Judges.
Petitioner Joaquin Garcia Pinach, a citizen of the Dominican
Republic and a lawful permanent resident of the United States, was

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ordered removed on the grounds that his conviction for sexual abuse
in the second degree under New York Penal Law (“NYPL”)
§ 130.60(2) constitutes “sexual abuse of a minor,” and is therefore an
“aggravated felony” subjecting him to removal, 8 U.S.C.
§§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). About a year later, Garcia moved
to reopen his removal proceedings, but the Board of Immigration
Appeals (“BIA”) denied the motion as untimely and concluded that
he did not warrant equitable tolling. Garcia now petitions for review
of the BIA’s decisions.
We DISMISS Garcia’s petition in No. 22-6421, which challenges
his removal order. As we recently held in Debique v. Garland, 58 F.4th
676, 680–84 (2d Cir. 2023), a conviction under NYPL § 130.60(2) is
categorically an aggravated felony. We reject Garcia’s arguments
(1) that Debique is not binding on the grounds that it purportedly left
open certain arguments as to why NYPL § 130.60(2) is broader than
the federal definition of sexual abuse of a minor, and (2) that our
decision in Debique was entirely premised on Chevron deference to the
BIA’s interpretation of “sexual abuse of a minor,” and that its stare
decisis force has therefore been undermined by the Supreme Court’s
decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
And in any event, we remain independently persuaded of the
correctness of Debique’s holding that second-degree sexual abuse
under NYPL § 130.60(2) constitutes “sexual abuse of a minor” under
§ 1101(a)(43)(A).
We DENY Garcia’s petition in No. 24-26, which challenges the
BIA’s denial of his motion to reopen removal proceedings. The BIA

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had a reasonable basis for concluding that Garcia failed to show that
he acted with due diligence for the entire period between when the
90-day deadline for such a motion had expired, and when he filed his
motion to reopen approximately one year later. Accordingly, the BIA
did not abuse its discretion in declining to grant equitable tolling and
therefore denying the motion as untimely.
K YLE B ARRON, The Legal Aid Society, New
York, NY (Julie Dona, John DeBellis, The
Legal Aid Society, New York, NY, Aadhithi
Padmanabhan, University of Maryland
School of Law, Federal Appellate
Immigration Clinic, Baltimore, MD, on the
brief), for Petitioner.
JEFFREY M. H ARTMAN, Trial Attorney,
Office of Immigration Litigation (Brian M.
Boynton, Principal Deputy Assistant
Attorney General, Song Park, Assistant
Director, Jessica A. Dawgert, Senior
Litigation Counsel, on the brief), Civil
Division, U.S. Department of Justice,
Washington, DC, for Respondent.
WILLIAM J. NARDINI, Circuit Judge:
Petitioner Joaquin Garcia Pinach (“Garcia”), a citizen of the
Dominican Republic and a lawful permanent resident of the United
States, was ordered removed after he was convicted of sexual abuse

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in the second degree under New York Penal Law (“NYPL”)
§ 130.60(2), which involves sexual contact with a victim younger than
14 years old. An immigration judge (“IJ”), and later the Board of
Immigration Appeals (“BIA”), determined that his conviction was an
“aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii) because it
constituted the “sexual abuse of a minor” under 8 U.S.C.
§ 1101(a)(43)(A). A year after the BIA’s decision, we reached the same
conclusion in Debique v. Garland, 58 F.4th 676, 680–84 (2d Cir. 2023)—
that is, we held that a conviction under NYPL § 130.60(2) is
categorically an aggravated felony.
Garcia argues that our Court is not bound by Debique for two
reasons. First, he contends that our Court in Debique left open certain
arguments he now advances for why NYPL § 130.60(2) is broader
than the federal definition of “sexual abuse of a minor”: principally,
that the New York law (unlike federal law, he says) fails to require a
minimum age differential between the victim and perpetrator.
Second, he points out that our decision in Debique deferred to the
BIA’s interpretation of the statutory term “sexual abuse of a minor,”
based on Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843 (1984). 1 Because the Supreme Court has since
overruled Chevron in Loper Bright Enterprises v. Raimondo, 603 U.S. 369
(2024), Garcia argues that we are obliged to revisit (and revise) our
statutory interpretation of § 1101(a)(43)(A).
1 Unless otherwise indicated, when quoting cases, all internal quotation
marks, alteration marks, emphases, footnotes, and citations are omitted.

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We are unpersuaded. In Debique, we expressly acknowledged
the argument that a state statute must require an age differential to
satisfy the federal definition of sexual abuse, 58 F.4th at 683 n.6; yet
this did not dissuade us from holding as a categorical matter that a
violation of NYPL § 130.60(2) is “sexual abuse of a minor.” Our panel
is not free to second-guess the Debique panel’s conclusion that it is
unnecessary to resolve the age-differential question in other
circumstances to conclude that NYPL § 130.60(2) (which covers
victims younger than 14 years old) is a categorical match for “sexual
abuse of a minor,” and therefore an aggravated felony. As to Loper
Bright, the Supreme Court explained in that decision that “[t]he
holdings of [prior] cases . . . are still subject to statutory stare decisis
despite our change in interpretive methodology.” 603 U.S. at 412.
Accordingly, Loper Bright provides no basis for us to disregard
Debique. In any event, both Debique and our earlier precedents relied
only partly on deference to the BIA’s interpretation when deciding
what constitutes “sexual abuse of a minor” for purposes of federal
law; they also relied on other interpretive methods that are unaffected
by Loper Bright. Moreover, apart from any considerations of stare
decisis and Loper Bright, we remain independently persuaded of the
correctness of Debique’s holding that second-degree sexual abuse
under NYPL § 130.60(2) constitutes “sexual abuse of a minor” under
§ 1101(a)(43)(A). We therefore adhere to our holding in Debique,
conclude that Garcia is removable for an aggravated felony, and
DISMISS his petition for review of his removal order.

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Garcia also seeks review of a second BIA decision, from
November 2023. There, the BIA denied his untimely motion to reopen
his removal proceedings based on purportedly new evidence that his
diabetes condition (which he knew about during his removal
proceedings) also affected his mental health at the time he committed
his sexual abuse offense. Garcia concedes that his motion was
untimely, but he argues that the BIA should have equitably tolled the
period after his 90-day deadline to file the motion. We disagree. A
year passed after his first BIA appeal before Garcia obtained his new
evidence, and the BIA had a reasonable basis for concluding that he
failed to exercise due diligence throughout the period before he filed
his motion. We therefore DENY Garcia’s petition to review the BIA’s
denial of his motion to reopen.
I. Background
A. Conviction for Second-Degree Sexual Abuse in New York
Garcia is a native and citizen of the Dominican Republic who
was admitted to the United States as a lawful permanent resident in
1981 at the age of 17. He has been arrested twice since then.
In 1988, he was charged with driving while intoxicated, and he
pled guilty to violating New York Vehicle and Traffic Law § 1192.1.
He was sentenced to fifteen days in prison, plus a $250 fine.
His second arrest came in 2019 after a seven-year-old girl, who
was related to Garcia’s longtime girlfriend, accused him of “rubb[ing]
her vagina underneath her underwear with one of his hands.”

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App’x at 669. He was initially charged with attempted sexual abuse
in the first degree under NYPL § 130.65(3) and sexual abuse in the
second degree under NYPL § 130.60(2). On March 22, 2019, Garcia
pled guilty to the second count—sexual abuse in the second degree,
which is a misdemeanor under New York law.2 On October 1, 2020,
he was sentenced to a one-year conditional discharge and a $1,000
fine. He was also required to register as a sex offender. The court
entered a five-year protective order barring Garcia from having any
contact with his victim.
B. Immigration Court Proceedings
On December 14, 2021, the Department of Homeland Security
(“DHS”) through Immigration and Customs Enforcement (“ICE”)
initiated removal proceedings against Garcia. As relevant here, DHS
charged that Garcia was removable under 8 U.S.C. § 1227(a)(2)(A)(iii),
because his conviction for second-degree sexual abuse was an
2 Section 130.60 provides as follows:
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:
1. Incapable of consent by reason of some factor other than
being less than seventeen years old; or
2. Less than fourteen years old.
Sexual abuse in the second degree is a class A misdemeanor.

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“aggravated felony,” which includes “sexual abuse of a minor” under
8 U.S.C. § 1101(a)(43)(A).3
Garcia fought the charges of removability. He moved to
terminate the proceedings, arguing that (among other things) his
offense of conviction was not categorically an aggravated felony. He
contended that NYPL § 130.60(2) criminalizes a broader range of
conduct than what constitutes “sexual abuse of a minor” for purposes
of federal immigration law, for several reasons. First, he argued that
the New York law was “overbroad because it criminalizes the
touching of body parts that are not listed in the definition of sexual
abuse at 18 U.S.C. § 3509(a)(8),” which is a statute that provides
procedural protections for child victims and witnesses in federal
criminal cases. App’x at 726. Second, he acknowledged that this
Court had previously held, in Rodriguez v. Barr, 975 F.3d 188 (2d Cir.
2020), that first-degree sexual abuse under NYPL § 130.65(3) is
categorically an offense of “sexual abuse of a minor,” and that both
statutes prohibit the same types of conduct, defined as “sexual
contact.” But he distinguished New York’s offense of second-degree
sexual abuse on the theory that it is a misdemeanor with a lower
maximum punishment (364 days, compared to 7 years for the first-
degree offense), and that it covers older victims (under 14 years, as
3 The notice to appear also charged that Garcia was removable under
8 U.S.C. § 1227(a)(2)(E)(i), because his conviction was for “a crime of child abuse.”
The IJ upheld this charge of removability, but the BIA ultimately declined to reach
it, once it affirmed the IJ’s holding that his conviction was an aggravated felony.
Because that basis for removability is not before us on this petition for review, we
make no further reference to it.

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opposed to under 11 years for first-degree abuse). Third, he argued
that NYPL § 130.60(2) was overbroad as to mens rea, because it does
not require that the defendant know the victim’s age.
Garcia also sought various forms of relief from removal. He
applied for asylum and withholding of removal under 8 U.S.C.
§§ 1158 and 1231(b)(3); both withholding of removal and deferral of
removal under the Convention Against Torture (“CAT”), Dec. 10,
1984, 1465 U.N.T.S. 85 (1984), 8 C.F.R. §§ 1208.16(c), 1208.17; and
cancellation of removal for certain permanent residents under
8 U.S.C. § 1229b(a). As the sole witness in support of those
applications, Garcia testified before an IJ that he feared returning to
the Dominican Republic because he had no remaining family there,
had no place to live, and feared mistreatment by the police (even
though he reported no prior abuse by Dominican police officers
during his visits to that country).
On April 4, 2022, the IJ denied Garcia’s motion to terminate,
sustained the charges of removability, and entered a final order of
removal. Several of the IJ’s rulings are pertinent here. First, the IJ
determined that Garcia’s conviction for sexual abuse in the second
degree qualified as an aggravated felony. This finding rendered him
not only removable, but also ineligible for asylum and cancellation of
removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i), 1229b(a)(3).
Second, the IJ concluded that his conviction was a “particularly
serious crime,” which further rendered Garcia ineligible for
withholding of removal under the Immigration and Nationality Act
(“INA”) or the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii), 8 C.F.R.

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§ 1208.16(c)(4). Last, the IJ declined to grant Garcia deferral of
removal under the CAT, on the grounds that he had failed to present
sufficient evidence to establish that his removal to the Dominican
Republic would likely subject him to harm, much less harm
amounting to torture.
C. Proceedings Before the BIA
Garcia timely appealed the IJ’s decision to the BIA.
As most relevant here, Garcia reprised his arguments before the
IJ (with some minor tweaks) about why his conviction under NYPL
§ 130.60(2) should not be considered an aggravated felony: (1) his
New York statute of conviction criminalized sexual contact with body
parts not listed in 18 U.S.C. § 3509(a)(8)’s definition of sexual abuse;
(2) this Court’s decision in Rodriguez was distinguishable because it
involved an offense of sexual abuse against children under the age of
11, whereas his statute of conviction covers older victims, who are
under 14 years old; (3) a misdemeanor conviction, like the one here,
cannot be an aggravated felony under the INA; and (4) his statute of
conviction failed to require at least a “knowing” mens rea, either by
requiring a defendant to know the victim’s age or by requiring that
he act with the purpose of his own sexual gratification. Garcia also
challenged the IJ’s conclusion that his conviction qualified as a
particularly serious crime. And he contested the IJ’s finding on
torture.
While his administrative appeal was pending, Garcia moved
before the BIA to remand his case for the IJ to consider his mental

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health and purportedly new diabetes diagnosis in analyzing whether
his conviction was a particularly serious crime.
On August 25, 2022, the BIA dismissed Garcia’s appeal and
denied his motion to remand. The BIA began by affirming the IJ’s
determination that Garcia’s conviction under NYPL § 130.60(2) was
an aggravated felony. In re Joaquin Garcia Pinach, No. A037 159 990
(B.I.A. Aug. 25, 2022), aff’g No. A037 159 990 (Immigr. Ct. N.Y.C. Apr.
4, 2022). The BIA acknowledged that it had adopted the definition of
“sexual abuse” contained in 18 U.S.C. § 3509(a) as a non-exclusive
guide that “includes, but is not limited to,” various enumerated acts
that constitute sexual abuse of a minor for purposes of 8 U.S.C.
§ 1101(a)(43)(A). App’x at 3 (citing Matter of Rodriguez-Rodriguez, 22 I.
& N. Dec. 991, 996 (B.I.A. 1999); Mugalli v. Ashcroft, 258 F.3d 52, 57–60
(2d Cir. 2001)).
The BIA then explained that Garcia’s overbreadth argument
was foreclosed by our holding in Rodriguez, that first-degree sexual
abuse under NYPL § 130.65(3) constituted “sexual abuse of a minor,”
and hence an aggravated felony. The BIA observed that New York
law punishes the same conduct—“sexual contact”—in its first- and
second-degree sexual abuse offenses and that because we held in
Rodriguez that the range of conduct encompassed by “sexual contact”
(potentially including a kiss on the mouth) was “sexual abuse of a
minor” for the purposes of § 130.65(3), the same conclusion must also
apply to § 130.60(2). The BIA found the differences between the first-
and second-degree offenses to be immaterial with respect to the
aggravated felony inquiry. Although noting our discussion in

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Rodriguez that first-degree abuse had to involve a victim under eleven
years old, the BIA viewed this as secondary to our focus on the scope
of the proscribed sexual conduct; accordingly, it made no difference
that victims of second-degree abuse could be somewhat older (under
fourteen). Likewise, the BIA placed no significance on the lighter
maximum sentence associated with second-degree abuse, relying on
BIA precedent holding that misdemeanor offenses fall within the
scope of “sexual abuse of a minor.” App’x at 3–4 (citing Matter of
Small, 23 I. & N. Dec. 448, 449 (B.I.A. 2002)).
Garcia’s mens rea challenge fared no better. The BIA found this
contention foreclosed by our Court’s holding in Acevedo v. Barr, 943
F.3d 619 (2d Cir. 2019), that under New York law, a criminal statute—
like the one at issue here—should be construed as defining a crime of
mental culpability unless the statute clearly indicates a legislative
intent to impose strict liability. Id. at 625 (citing NYPL § 15.15(2)).
The BIA then agreed with the IJ’s assessment that Garcia’s
conviction was a particularly serious crime, despite being classified in
New York as a misdemeanor, because the Petitioner’s victim was a
seven-year-old child and the offense conduct involves a “level of
harm inherent to sexual contact with a child.” App’x at 4.
Next, the BIA upheld the IJ’s denial of Garcia’s application for
deferral of removal under the CAT. 4
4 In his petition for review, Garcia has not challenged the denial of his
request for deferral of removal under the CAT. Accordingly, we deem any such

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Finally, the BIA denied the motion to remand. The BIA
acknowledged that, under its precedents, an IJ may consider a
respondent’s mental health when assessing whether a prior
conviction was for a particularly serious crime. See id. at 6 (citing
Matter of B-Z-R-, 26 I. & N. Dec. 339 (B.I.A. 2014)). But Garcia had not
alleged that he was suffering from mental illness when he committed
his sexual abuse offense. Nor had Garcia shown how his diabetes
diagnosis would have changed the result in this case. The BIA
therefore determined that Garcia’s proffered evidence would not
have demonstrated that he was more likely than not to be tortured if
returned to the Dominican Republic, and hence entitled to deferral of
removal under the CAT.
Garcia timely petitioned our Court for review of the BIA’s
decision. A year later, while his petition was pending, Garcia
submitted to the BIA a motion to reopen his removal proceedings. He
acknowledged that the motion was untimely because it was filed long
after the 90-day deadline for motions to reopen. See 8 U.S.C.
§ 1229a(c)(7)(C)(i) (“Except as provided in this subparagraph, the
motion to reopen shall be filed within 90 days of the date of entry of
a final administrative order of removal.”); 8 C.F.R. § 1003.2(c)(2). But
Garcia argued that the BIA should either equitably toll the deadline
or exercise its authority to reopen sua sponte. Garcia sought to present
purportedly new evidence of his mental health and diabetes
diagnoses, arguing among other things that this evidence
challenge to be abandoned. See Debique, 58 F.4th at 684 (“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.”).

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(1) undermined the determination that he had committed a
particularly serious crime (which rendered him ineligible for certain
forms of relief), and (2) showed his eligibility for CAT relief.
On November 30, 2023, the BIA denied Garcia’s motion to
reopen, finding that he had not shown an extraordinary circumstance
or due diligence necessary for equitable tolling. The BIA noted that
Garcia did not adequately explain why he failed to make arguments
or present evidence previously about his mental health at the time of
his 2017 offense; that he did not show how the new evidence about
his diabetes significantly differed from what he had presented in his
prior motion to remand; and that he failed to demonstrate a “truly
exceptional situation” that warranted sua sponte reopening. In re
Joaquin Garcia Pinach, No. A037 159 990 (B.I.A. Nov. 30, 2023).
Garcia timely petitioned for review of the BIA’s denial of his
motion to reopen. This Court then consolidated his two pending
petitions, which we now consider.
II. Discussion
We start by defining the contours of the issues presented in
these petitions, and the appropriate standards of review for each.
First, we consider Garcia’s petition for review of his removal
order. When, as here, “the BIA adopts and affirms the IJ’s decision,
we review the two decisions in tandem.” Ojo v. Garland, 25 F.4th 152,
159 (2d Cir. 2022). We disregard, however, any findings by the IJ that

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the BIA did not reach or rely on. See Xue Hong Yang v. U.S. Dep’t of
Just., 426 F.3d 520, 522 (2d Cir. 2005).
Our review of the removal order is limited to the sole issue that
Garcia raises in his petition for review—namely, whether his
conviction is an aggravated felony. The INA limits the jurisdiction of
federal courts to review agency immigration decisions such 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”
under the INA includes “murder, rape, or sexual abuse of a minor.”
Id. § 1101(a)(43)(A). In short, the INA’s jurisdictional bar applies in
cases like the present one, where “(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. There is an exception to
this jurisdictional bar: We may review constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(D). We therefore have
jurisdiction to determine the purely legal question of whether
Garcia’s conviction under NYPL § 130.60(2) constitutes “sexual abuse
of a minor,” making this offense an “aggravated felony.” Bell v. Reno,
218 F.3d 86, 89 (2d Cir. 2000). If we find that Garcia “is in fact
removable because he was convicted of an aggravated felony . . ., we
must dismiss his petition for lack of jurisdiction.” Ming Lam Sui v.
INS, 250 F.3d 105, 110 (2d Cir. 2001).

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That limited issue—whether a conviction under NYPL
§ 130.60(2) is categorically an aggravated felony—does not entail
consideration of the underlying facts of Garcia’s case. We review the
BIA’s determination of that strictly legal question de novo. See Chery
v. Garland, 16 F.4th 980, 983 (2d Cir. 2021).
Second, we consider Garcia’s petition for review of the BIA’s
denial of his motion to reopen. Once again, our review is limited to
the sole basis on which Garcia challenges this decision—namely, that
the BIA erred in declining to equitably toll the 90-day deadline for
filing that motion.
Our Court has explained that the jurisdictional bar, and its
exceptions for constitutional and legal questions, applies not only to
our review of a removal order that is based on an aggravated felony,
but also to related motions to reopen proceedings following such an
order. See Durant v. INS, 393 F.3d 113, 115–16 (2d Cir. 2004)
(Sotomayor, J.).5 In Guerrero-Lasprilla v. Barr, 589 U.S. 221, 226, 228,
5 Garcia argues that Durant was wrongly decided, on the ground that our
Court “assumed without analysis that § 1252(a)(2)(C) limits its authority to
review” a motion to reopen that challenges only a denial of withholding of
removal. Pet’r Supp. Reply Br. at 9. But this panel remains bound by Durant
unless and until it has been overruled by the Supreme Court or this Court sitting
en banc. See Dale v. Barr, 967 F.3d 133, 142– 43 (2d Cir. 2020). Garcia argues that we
are free to reconsider Durant because intervening Supreme Court precedent has
undermined that decision. He points to Nasrallah v. Barr, 590 U.S. 573, 576 (2020),
where the Court held that courts may review agency factfinding in CAT
determinations because denial of CAT relief does not affect the validity of a “final
order of removal,” which triggers the jurisdictional bar of § 1252(a)(2)(C). Garcia
argues that the logic of Nasrallah applies with equal force to withholding of

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(2020), the Supreme Court held that whether the BIA “incorrectly
applied the equitable tolling due diligence standard to the
‘undisputed’ (or established) facts” is “a ‘question of law’” for
purposes of 8 U.S.C. § 1252(a)(2)(D). Accordingly, we have
jurisdiction to consider Garcia’s claim that the BIA misapplied the due
diligence standard to the undisputed facts when it concluded that he
did not warrant equitable tolling.
The next question is what standard of review we must apply to
this claim. The Supreme Court did not give us a complete answer in
Guerrero-Lasprilla, but it provided some guidelines for courts to
consider: “The answer to the ‘proper standard’ question may turn on
practical considerations, such as whether the question primarily
requires courts to expound on the law, particularly by amplifying or
elaborating on a broad legal standard (often calling for review de
novo), or rather immerses courts in case-specific factual issues (often
removal claims, but (as he quite properly acknowledges) the Supreme Court
reserved decision on that question. Id. at 587. When the Supreme Court expressly
disclaims any view on an issue covered by one of our precedents, it cannot be said
that its opinion has “broken the link on which we premised our prior decision, or
undermined an assumption of that decision,” such that we are now free from the
precedential force of our prior panel decision. See Dale, 967 F.3d at 142 – 43. He
also points to the Supreme Court’s decision in Johnson v. Guzman Chavez, 594 U.S.
523 (2021), for the proposition that “‘a grant of withholding-only relief’ does not
impact the validity of an order of removal.” Pet’r Supp. Reply Br. at 5 (quoting
Guzman Chavez, 594 U.S. at 537). But again: As Garcia candidly recognizes, the
Supreme Court in Guzman Chavez was not addressing the jurisdictional bar of
§ 1252(a)(2)(C). We cannot disregard our binding precedents simply by intuiting
a new principle that might be consistent with later Supreme Court cases, but not
necessarily dictated by them, particularly where the Supreme Court has explicitly
told us that it is not speaking to the issue at hand.

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calling for deferential review).” 589 U.S. at 228. The Supreme Court
returned to this question in Wilkinson v. Garland, 601 U.S. 209, 217
(2024), holding that whether an alien has demonstrated “exceptional
and extremely unusual hardship” for purposes of cancellation of
removal under 8 U.S.C. § 1229b(b)(1)(D) is similarly a “question[] of
law” that is excepted from the jurisdiction-stripping provisions under
8 U.S.C. § 1252(a)(2)(D). The Court described the operative inquiry—
whether “established facts satisfy the statutory eligibility standard”—
as a “mixed question” of law and fact. Wilkinson, 601 U.S. at 225.
Noting that such a “mixed question is primarily factual,” the Court
held that our review of the BIA’s decision in this regard must be
“deferential.” Id.
It is worth noting how easy it might be to miss the difference
between two similarly worded (but definitionally distinct) concepts:
(1) what our case law familiarly refers to as “legal questions,”
“conclusions of law,” and the like, when sorting out standards of
review, and (2) the technical statutory term “questions of law” as used
in 8 U.S.C. § 1252(a)(2)(D), which delineates which issues may be
reviewed at all in a narrow band of immigration cases. With respect to
the first category, we commonly explain that abstract legal questions
are subject to de novo review—as contrasted with, say, factual findings
which are reviewed much more deferentially. See, e.g., Xia v. Bondi,
137 F.4th 85, 89 (2d Cir. 2025). But as we have just explained, in light
of Guerrero-Lasprilla and Wilkinson, the term “questions of law” as it
appears in § 1252(a)(2)(D) is a term of art with a specialized meaning
that sweeps in a category of issues that are much broader than what

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are commonly considered pure questions of law for standard-of-
review purposes. See Guerrero-Lasprilla, 589 U.S. at 228; Wilkinson, 601
U.S. at 225. Accordingly, and in line with the Supreme Court’s
admonitions, we must guard against reflexively applying de novo
review to all “questions of law” under 8 U.S.C. § 1252(a)(2)(D), just
because that term sounds awfully similar (or even identical) to the
term regularly used in our case law for strictly legal issues. So, what
standard should apply in this case?
Garcia does not dispute that the BIA applied the correct legal
standard for considering whether to equitably toll the deadline for
filing a motion to reopen. Accordingly, de novo review would be
inappropriate here. 6
6 In reaching this conclusion, we reject Garcia’s argument that we have
generally applied de novo review to the BIA’s denial of equitable tolling. Pet’r
Supp. Br. at 28. In support of that proposition, he cites Iavorski v. INS, 232 F.3d 124,
128, 134 (2d Cir. 2000), where we first held that the time to file a motion to reopen
is not jurisdictional, but rather is subject to equitable tolling. Garcia’s reliance on
Iavorski is misplaced. In that case, the BIA had denied the petitioner’s motion to
reopen as untimely and held that equitable tolling was categorically unavailable.
It was the BIA’s pure “conclusion[] of law” (that there can never be equitable
tolling in immigration cases) that we reviewed de novo. 232 F.3d at 128. By
contrast, we proceeded to explain that where the BIA applies the correct legal
standard, its decision to deny a motion to reopen is reviewed deferentially—that
is, “to determine whether the decision was arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with the law.” Id. Garcia correctly points
out that, after determining that equitable tolling was theoretically available in
Iavorski’s case, we proceeded to determine whether Iavorski had demonstrated
reasonable diligence (and we concluded that he had not), even though the BIA had
not considered that question. But that was not de novo review of something the
BIA had already decided. Instead, it was a determination of whether remand

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This case involves an application of law to fact—and so, our
review here must be “deferential.” Wilkinson, 601 U.S. at 225. But
“deferential” can mean different things in different contexts, as our
Court recently explained in Toalombo Yanez v. Bondi, 140 F.4th 35 (2d
Cir. 2025). In that case, we considered the question of first impression,
left open by the Supreme Court in Wilkinson, of precisely how much
deference must be accorded to the BIA’s determination of whether an
immigration petitioner had demonstrated that her removal would
lead to “exceptional and extremely unusual hardship” to her children.
Id. at 37. We considered various options: the “substantial evidence”
standard that usually applies to factfinding in immigration cases,
under which “the administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary,” 8 U.S.C. § 1252(b)(4)(B); the “abuse of discretion” standard;
and the “clear error” standard. See Toalombo Yanez, 140 F.4th at 40–44.
We ultimately concluded that “clear error” was the most appropriate
lens through which we should review application of the “exceptional
and extremely unusual hardship” standard, because that was a
“primarily factual” exercise that required an adjudicator to engage in
a “cumulative analysis” of numerous factors in “what can generally
be understood as a totality-of-the-circumstances analysis.” Id. at 43.
would be futile because the BIA would have inevitably reached the same
conclusion. Id. at 134. Perhaps we would do well to use different Latin terms to
differentiate between when we are the first adjudicator to consider an issue (ex
novo?), as opposed to when we wipe the slate clean of what an agency has already
decided, and give the question a completely fresh look (de novo). But the labels are
unimportant. In Iavorksi we did not do what we are doing today: looking at the
BIA’s tolling analysis and asking whether the agency got it right. That, we
reaffirm, is an exercise that calls for deference.

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Unlike the situation in Toalombo Yanez, we are not required to
write on a blank slate about the precise level of deference that must
be accorded to the BIA when we review its denial of a motion to
reopen immigration proceedings, including under the doctrine of
equitable tolling. We have long reviewed such decisions under the
familiar “abuse of discretion” standard, which is “highly deferential.”
Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). We apply such
deference “mindful that motions to reopen ‘are disfavored for the
same reasons as are petitions for rehearing and motions for a new trial
on the basis of newly discovered evidence.’” Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 322–23
(1992)). And we have explained that the BIA does not abuse its
discretion in denying equitable tolling if it has a “reasonable basis”
for concluding that the respondent “failed to act with diligence” in
pursuing his claim “during the entire period he seeks to toll.” Rashid,
533 F.3d at 132–33.
Having clarified what we may review, and how we must
review it, we now turn to the merits.
A. Aggravated Felony
To determine whether a state conviction constitutes an
aggravated felony under the INA, we generally apply a categorical
approach. We look to “whether the state statute defining the crime of
conviction categorically fits within the generic federal definition of a
corresponding aggravated felony.” Flores v. Holder, 779 F.3d 159, 165
(2d Cir. 2015). Because this inquiry focuses on the definition of a

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generic federal “crime,” rather than on “the facts underlying the case,
we must presume that the conviction ‘rested upon nothing more than
the least of the acts’ criminalized, and then determine whether even
those acts are encompassed by the generic federal offense.” Moncrieffe
v. Holder, 569 U.S. 184, 190–91 (2013) (quoting Johnson v. United States,
559 U.S. 133, 137 (2010)).
The elements of Garcia’s state conviction are straightforward
enough. Under New York law, a person is guilty of second-degree
sexual abuse “[1] when he or she subjects another person to sexual
contact and [2] when such other person is . . . [l]ess than fourteen years
old.” NYPL § 130.60(2). Section 130.00(3) of New York Penal Law
defines “sexual contact” as “any touching of the sexual or other
intimate parts of a person for the purpose of gratifying sexual desire
of either party.”
The next issue is whether Garcia’s sexual abuse conviction
categorically fits within the term “sexual abuse of a minor,” which is
included in the INA’s definition of an aggravated felony.
8 U.S.C. § 1101(a)(43)(A). In our Circuit, this is not an open question.
In Debique v. Garland, we expressly held that “a conviction under N.Y.
Penal Law § 130.60(2) is ‘sexual abuse of a minor.’” 58 F.4th at 678.
In doing so, we relied on our earlier holding in Rodriguez v. Barr, 975
F.3d at 194, “that a substantively identical provision” of New York
law—first-degree sexual abuse under NYPL § 130.65(3)—also
constituted “sexual abuse of a minor.” Debique, 58 F.4th at 682. We
pointed to the central similarity between the two statutes: Both
prohibited “sexual contact” with minors, and both used the same

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definition of “sexual contact.” Id. And we had already held in
Rodriguez that “this definition of ‘sexual contact’ is a categorical match
to the generic federal offense.” Id. (citing Rodriguez, 975 F.3d at 195).
In Debique, we dismissed as immaterial the sole distinction
between the two statutes, which was the element relating to the
victim’s age: First-degree abuse requires the victim to be under eleven
years old, whereas second-degree abuse requires the victim to be
under fourteen years old. 58 F.4th at 682. In our view, “various
authorities” supported the conclusion that “sexual abuse of a minor”
sweeps in crimes committed against victims who were under
fourteen years old, including: (1) the Supreme Court’s holding in
Esquivel-Quintana v. Sessions, 581 U.S. 385, 390–91 (2017), that in the
statutory rape context, “sexual abuse of a minor” requires that the
victim be younger than 16; (2) BIA precedent that “sexual abuse of a
minor” covers victims under 18 years old, In re V-F-D, 23 I. & N. Dec.
859, 862 (B.I.A. 2006); (3) evidence that 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”; and (4) a BIA decision from 2002 that a
conviction under NYPL § 130.60 is “sexual abuse of a minor,” In re
Small, 23 I. & N. Dec. 448, 449 (B.I.A. 2002). See Debique, 58 F.4th at
682–83.
Debique squarely applies here, and our panel is therefore
obliged to adhere to its holding. Our Court is “bound by the decisions
of prior panels until such time as they are overruled either by an en
banc panel of [this] Court or by the Supreme Court.” Matthews, 927
F.3d at 614. “Accordingly, it is neither appropriate nor possible” for

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a panel of this Court to disregard an opinion of a previous panel.
United States v. Peguero, 34 F.4th 143, 158 (2d Cir. 2022).
Garcia acknowledges our holding in Debique, but he contends
that we are free to revisit it for two reasons.
First, he argues that we can and should consider an argument
that (he contends) was not presented to our Court in Debique, and
which we left open: that Congress cannot have meant “sexual abuse
of a minor” to include “consensual kissing between teenagers close in
age.” Pet’r Reply Br. in 22-6421, at 1. This argument really has two
components: (1) that the New York law covers a mere kiss on the lips,
whereas federal law requires something more; and (2) that the New
York law requires no age differential between perpetrator and victim,
whereas federal law does. We consider each point in turn.
Starting with the kiss: Garcia relies primarily on our statement
in James v. Mukasey, 522 F.3d 250, 258 (2d Cir. 2008), that “under New
York law, a kiss on the mouth constitutes ‘sexual contact’” under
NYPL § 130, and “[t]his definition is broader than that of the federal
statute from which the BIA has drawn guidance”—that is, 18 U.S.C
§ 3509. But Debique relied expressly on Rodriguez, and in Rodriguez we
rejected this observation as obiter dictum. 975 F.3d at 193 (“[T]he James
court’s hypothetical account was not necessary to its decision and
therefore does not bind this panel.”). And dictum it was. At issue in
James was whether a completely different New York statute, NYPL
§ 260.10, for endangering the welfare of a child, constituted sexual
abuse of a minor. 522 F.3d at 252. Accordingly, in Rodriguez we relied
on New York case law to determine that the state’s definition of
“intimate” body parts “’involves considerations other than mere

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anatomical location, such as what area of the body is touched, what is
the manner of the touching, and under what circumstances did the
touching take place.’” 975 F.3d at 193 (quoting People v. Morbelli, 544
N.Y.S.2d 442, 446 (N.Y. Crim. Ct. 1989)). We held that “for both the
state statute and the federal definition as interpreted by the BIA, the
proscribed conduct is defined by not only the physical act but also by
the mens rea of the wrongdoer,” which requires that it be
“accomplished for the sexual gratification of the perpetrator.” Id. at
194. We also noted, because we were addressing first-degree sexual
abuse under NYPL § 130.65(3), that the child victim had to be under
eleven years old. Id.
Our observation in Rodriguez applies just as aptly here: Second-
degree sexual abuse under NYPL § 130.60(2) requires contact with the
same range of “intimate” body parts that were at issue in Rodriguez;
and requires the same mens rea that was at issue in Rodriguez. The
only difference is that the age of the minor victim may be slightly
older—under age 14, instead of age 11. That is the only difference
between those provisions of second-degree and first-degree sexual
abuse under New York law, and Debique nevertheless found second-
degree abuse to constitute “sexual abuse of a minor.” 58 F.4th at 682.
In short, our Court has decisively trod this ground (of which body
parts are covered by NYPL § 130.60) in more than one precedential
opinion, and this panel has no authority to backtrack.
Turning to the question of age differential: Garcia points out
that in a footnote in Debique, we expressly declined to “decide
whether the generic federal definition of ‘sexual abuse of a minor’
requires a minimum age differential or particular relationship

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26
between the perpetrator and victim.” 58 F.4th 683 n.6. He contends
that because the Court reserved decision on that point in Debique, we
are free to rely on that very argument to reject the holding of Debique
itself: that § 130.60(2) is a categorical match for “sexual abuse of a
minor.” However, Garcia misses the entire point of our footnote. The
only logical reason we could choose not to decide whether a
minimum age differential might otherwise be required is because it
was not necessary to our decision with respect to § 130.60(2). That
footnote immediately followed our conclusion, in the corresponding
text, that a criminal offense involving a victim under fourteen years old
“does not sweep more broadly than the generic federal definition of
‘sexual abuse of a minor.’” Id.at 683. In other words, for victims that
young, the New York statute did not need to require an age
differential. Had we thought otherwise—that perhaps an age
differential might always be required, no matter how young the
victim—we would not have been able to hold as we did, that
§ 130.60(2) was a categorical match for “sexual abuse of a minor” as
used in the INA. Put another way, we concluded in Debique that we
were capable of discerning that § 130.60(2) was an aggravated felony
without grappling with whether other statutes dealing with older
victims might need to contain an age differential between victim and
perpetrator. That conclusion binds us today.
Accordingly, we reject Garcia’s first major contention: that
Debique is not binding on the grounds that it purportedly left open
certain arguments that he now raises.
Second, Garcia argues that we are obliged to revisit Debique
because it was improperly premised on Chevron deference to the

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BIA’s interpretation of “sexual abuse of a minor”—deference that is
no longer appropriate after the Supreme Court’s decision in Loper
Bright. Garcia is correct that there is a narrow exception to the rule
that an opinion of one panel of this Court binds future panels. We
may reconsider an earlier panel decision if “there has been an
intervening Supreme Court decision that casts doubt on our
controlling precedent.” Matthews, 927 F.3d at 614. But we have
warned that “this exception is not to be construed liberally.” United
States v. Sterkaj, 138 F.4th 95, 100 (2d Cir. 2025). The Supreme Court
decision in question must have “broke[n] the link on which we
premised our prior decision, or undermined an assumption of that
decision.” Peguero, 34 F.4th at 158. “[W]e resort to this exception
cautiously, because a less-than-stringent application of the standards
for overruling prior decisions not only calls into question a panel’s
respect for its predecessors but also increases uncertainty in the law
by revisiting precedent without cause.” Dale, 967 F.3d at 143.
Prudence is especially warranted here, where Garcia would
have us rely on Loper Bright to disregard not one; not two; not three;
but at least four binding precedents of this Court. Most immediately,
he asks us to overturn Debique, which is directly on point for the
proposition that second-degree sexual abuse under NYPL § 130.60(2)
is an aggravated felony. But, to agree with Garcia, we would have to
hold more broadly that “sexual contact” under New York law (the
very same actus reus covered by first-degree sexual abuse of a minor
under NYPL § 130.60) does not constitute “sexual abuse of a minor”—
a conclusion that would fatally undermine our decision in Rodriguez
as well. And if we were to go down the road of abandoning our prior
statutory interpretations of 8 U.S.C. § 1101(a)(43)(A) that were

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premised on deference to the BIA, it is hard to see how we would not
also jettison our decision in Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir.
2001). In that case, we held that third-degree rape under NYPL
§ 130.25(2)—a statutory rape offense which punishes oral sexual
contact with a person younger than 17—was likewise sexual abuse of
a minor, and therefore an aggravated felony. See Mugalli, 258 F.3d
at 53. In reaching that conclusion, we construed § 1101(a)(43)(A) to
permit the BIA to rely by (non-exclusive) analogy on the types of
sexual misconduct listed in 18 U.S.C. § 3509, in order to ascertain
what constitutes sexual abuse of a minor. See id. at 56–61. And as
goes Mugalli, also goes Acevedo v. Barr, 943 F.3d 619, 623 (2d Cir. 2019),
where we confirmed that the BIA’s construction of “sexual abuse of a
minor” remained entitled to Chevron deference and held that a
conviction under NYPL § 130.45 (punishing attempted oral or anal
sexual conduct with a person under 15) fits within § 1101(a)(43)(A).
In short, we quite properly pause for reflection before triggering such
an upheaval in nearly twenty-five years of our caselaw, which would
seem to flow from accepting Garcia’s arguments.
The same worries about disturbing years of settled precedents
seem to have occurred to the Supreme Court in Loper Bright. In its
opinion, the Court made clear that its decision did “not call into
question prior cases that relied on the Chevron framework. The
holdings of those cases that specific agency actions are lawful . . . are
still subject to statutory stare decisis despite our change in interpretive
methodology.” Loper Bright, 603 U.S. at 412. “Mere reliance on
Chevron cannot constitute a special justification for overruling such a
holding, because to say a precedent relied on Chevron is, at best, just

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an argument that the precedent was wrongly decided. That is not
enough to justify overruling a statutory precedent.” Id.
Consistent with this view, some of our sister circuits have
declined to overrule or revisit their prior decisions applying Chevron
deference following Loper Bright. See, e.g., Tennessee v. Becerra, 131
F.4th 350, 366 (6th Cir. 2025) (stating, as to “previously settled issues
decided based on Chevron,” that “mere reliance on Chevron cannot
constitute a special justification for overruling such a holding”);
Murillo-Chavez v. Bondi, 128 F.4th 1076, 1087 (9th Cir. 2025) (holding
that, after Loper Bright, the court is bound by prior precedents that
applied Chevron deference to determine that certain offenses were
crimes of moral turpitude, but that court is free not to apply those
precedents when ascertaining whether “a previously untreated
crime” so qualifies); Lopez v. Garland, 116 F.4th 1032, 1045 (9th Cir.
2024) (holding that even after Loper Bright, court was bound by circuit
precedent based on Chevron deference, which interpreted
8 U.S.C. § 1227(a)(2)(A)(ii) to determine what constitutes a “single
scheme of criminal misconduct” for purposes of immigration law).
Garcia suggests that Loper Bright’s discussion of stare decisis
refers only to cases involving statutory interpretation by the Supreme
Court, rather than by the courts of appeals. But the Supreme Court in
Loper Bright made no such distinction, and we are chary of drawing
one ourselves. As the Supreme Court has observed, the “[p]rinciples
of stare decisis . . . demand respect for precedent whether judicial
methods of interpretation change or stay the same. Were that not so,
those principles would fail to achieve the legal stability that they seek
and upon which the rule of law depends.” CBOCS West, Inc. v.

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Humphries, 553 U.S. 442, 457 (2008). Garcia suggests that statutory
stare decisis should be weaker in the courts of appeals because
Congress is less likely to monitor and react to our decisions than to
those of the Supreme Court. Perhaps so; but perhaps not. Such
empirical claims are hard to measure, and Congress can (and
sometimes does) pass new laws in response to circuit-level decisions.
See, e.g., Singh v. Bondi, 139 F.4th 189, 199–200 (2d Cir. 2025) (outlining
how the REAL ID Act, codified in part at 8 U.S.C. § 1158(b)(1)(B)(iii),
prospectively superseded “judge-made standards” developed in this
and other courts of appeals for evaluating the reliability of adverse
credibility determinations in asylum proceedings, based on
statements made by aliens in border or airport interviews). But even
assuming that our decisions are less likely to prompt legislative
responses, that might be due to Congress’s awareness that there are
other ways to fix our mistakes of statutory interpretation, short of
passing a new law. If we go astray, our sister circuits are just as likely
to take a divergent path, creating a split of authority, and the Supreme
Court can grant certiorari to correct our errant ways. One might even
argue that the Supreme Court’s ability to set us straight argues in
favor of a stronger version of stare decisis among the inferior courts.
But we need not resolve such niceties about whether statutory
stare decisis is theoretically stronger or weaker among the courts of
appeals, because either way—it applies here. For one thing, it is not
clear that stare decisis principles (governing when a court should
overrule its own precedents) are the same as the rules governing the
binding nature of one panel’s decision on a later panel. But more
importantly, even if it were appropriate after Loper Bright for one
panel to revisit the decision of another panel that was founded

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exclusively upon Chevron deference, that is not a fair description of
what we did in Debique. True, we began our analysis in Debique by
explaining that we were bound by two of our precedents—Mugalli
and Acevedo—in which we deferred to the BIA’s conclusion that
18 U.S.C. § 3509(a)(8) serves as “a useful identification of the forms of
sexual abuse” that are covered by the INA. Debique, 58 F.4th at 681
(quoting Mugalli, 258 F.3d at 57 (quoting, in turn, In re Rodriguez-
Rodriguez, 22 I. & N. Dec. 991, 995 (B.I.A. 1999))). And we confirmed
that we were similarly bound by our decision in Rodriguez, which was
also premised in part on Chevron deference to the BIA’s reliance on
§ 3509(a)(8) as a guidepost to the meaning of “sexual abuse of a
minor.” See Debique, 58 F.4th at 682.
But our analysis in Debique proceeded to consider additional
arguments—in addition to agency deference—that counseled in favor
of the conclusion that NYPL § 130.60(2) was an aggravated felony.
We relied on “various authorities” to the effect that “the generic
federal definition of ‘sexual abuse of a minor’ applies to crimes
committed against ‘a minor’ who is under fourteen years old.”
58 F.4th at 682. Among those “authorities” was the Supreme Court’s
decision in Esquivel-Quintana, 581 U.S. at 390–91, which eschewed any
deference to the BIA in concluding that “the generic federal definition
of sexual abuse of a minor” covered victims younger than 16, at least
in the context of the statutory rape offenses at issue there. Debique,
58 F.4th at 682. Another of the “authorities” we consulted was the
statutory amendment history of the INA: We concluded that, at the
time Congress adopted the expanded definition of “aggravated
felony” in 1996, “the term ‘minor’ was likely understood to refer to
individuals under the age of eighteen.” Id. at 683.

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Likewise, we rejected some of Debique’s counterarguments on
bases that had nothing to do with BIA deference. Id. at 683–84. For
example, Debique argued that second-degree sexual abuse cannot be
an aggravated felony because New York labels it a misdemeanor. We
held that argument was foreclosed by the Supreme Court’s holding
that, for purposes of the categorical approach, we must disregard the
labels placed on crimes by state law. Id. at 683 (citing Taylor v. United
States, 495 U.S. 575, 589 (1990)). Likewise, and as noted above, we
relied on our own interpretation of New York case law when rejecting
Debique’s reliance on our dicta in James to the effect that an innocent
kiss on the mouth can constitute “sexual contact” for purposes of
NYPL § 130.60(2). Id. at 683–84. In short, our holding in Debique was
grounded on a variety of interpretive methods, and the elimination of
Chevron deference does not undermine the other bases for our
conclusion in that case.
And indeed, quite independent of stare decisis, the prior-panel
rule, and Chevron deference, we remain persuaded that a violation of
NYPL § 130.60(2) constitutes “sexual abuse of a minor” for purposes
of 8 U.S.C. § 1101(a)(43)(A). See, e.g., Debique, 58 F.4th at 686 (Park, J.,
concurring in the judgment) (criticizing court’s conclusion that
“sexual abuse of a minor” was ambiguous and that Chevron deference
was appropriate; agreeing that adherence to circuit precedent
including Acevedo was nevertheless required; but suggesting that
deference was “likely harmless to the outcome of this case” in any
event). Stripped to its essentials, this is a straightforward case. As we
have noted above, New York requires proof of “sexual contact” for a
conviction of either first- or second-degree sexual abuse under NYPL
§ 130.65(3) or § 130.60(2). And New York defines “sexual contact” to

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require both an actus reus (“any touching of the sexual or other
intimate parts of a person”) and a mens rea (“for the purpose of
gratifying sexual desire of [any] party”). NYPL § 130.00(3). The
expressly sexual nature of such acts (which are limited to contact with
“sexual or other intimate parts”), coupled with the expressly sexual
nature of such intent (to “gratify[] sexual desire”) clearly puts the
proscribed conduct within any commonsense meaning of the federal
term “sexual abuse,” as used in § 1101(a)(43)(A). As the Supreme
Court has explained, “the ‘ordinary meaning’ of [a] ‘defined term’ is
an important contextual clue” when applying the categorical
approach. Delligatti v. United States, 145 S. Ct. 797, 808 (2025)
(recognizing intentional murder as “the prototypical ‘crime of
violence’”). And second-degree sexual abuse under NYPL § 130.60(2)
can be committed only against a victim who is younger than 14 years
old—a child who, by any yardstick, is a “minor.” See, e.g., Esquivel-
Quintana, 581 U.S. at 393 (holding, in the statutory rape context, that
“sexual abuse of a minor” requires that the victim be younger
than 16). Consistent with our conclusion in Debique, for a statute like
this, which requires that the victim be so young, we are aware of no
basis for requiring a minimum age differential between the
perpetrator and the victim to establish that a minor has been “sexually
abused.”
Nor does it matter that New York law labels second-degree
sexual abuse a class A misdemeanor, NYPL § 130.60, which is
punishable by just a hair less than a year in prison, NYPL § 70.15(1)
(sentence not to exceed 364 days). As our Court has recognized,
§ 1101(a)(43) uses the words “aggravated felony” as a term of art that
includes crimes that are decidedly not “felonies”—either in the sense

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that they are so labeled by state or federal statute, or in the sense that
they are punishable by more than a year in prison (which is how
federal law distinguishes misdemeanors from felonies for federal
sentencing purposes, 18 U.S.C. § 3559). See, e.g., United States v.
Pacheco, 225 F.3d 148, 153–55 (2d Cir. 2000) (holding that certain
misdemeanors can constitute “aggravated felonies” under
§ 1101(a)(43)); see also United States v. Ramirez, 731 F.3d 351, 354–55
(5th Cir. 2013) (“[E]very circuit court to have considered whether a
misdemeanor conviction can constitute an aggravated felony for
purposes of § 1101(a)(43), including our court, has held” that it can)
(collecting cases); United States v. Alvarez-Gutierrez, 394 F.3d 1241, 1245
(9th Cir. 2005) (holding that to qualify as “sexual abuse of a minor”
for purposes of § 1101(a)(43)(A), an offense need not be punishable by
any minimum term of imprisonment).
In short, taken together, Garcia’s arguments for abandoning
our Court’s prior holding in Debique are unavailing. We therefore
conclude that Garcia’s conviction for second-degree sexual abuse
under NYPL § 130.60(2) is a categorical match for “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). Thus, we dismiss this portion of
Garcia’s consolidated petition for review of his removal order for lack
of jurisdiction. See 8 U.S.C. § 1252(a)(2)(C).
B. Motion to Reopen
Garcia separately petitions this Court to review the BIA’s denial
of his motion to reopen his removal proceedings, and specifically its
decision not to grant equitable tolling. He wanted the IJ to consider
additional medical evidence, which he says should have factored into

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the determination of whether his offense constituted a particularly
serious crime that barred his eligibility for withholding of removal.7
A “motion to reopen shall state the new facts that will be
proven at a hearing to be held if the motion is granted, and shall be
supported by affidavits or other evidentiary material.” 8 U.S.C.
§ 1229a(c)(7)(B). Such a motion “shall be filed within 90 days of the
date of entry of a final administrative order of removal,” id.
§ 1229a(c)(7)(C)(i), and “shall not be granted unless it appears . . . that
evidence sought to be offered is material and was not available and
could not have been discovered or presented at [a] former hearing.”
8 C.F.R. § 1003.2(c)(1). The deadline for filing a motion to reopen may
be equitably tolled if the party seeking tolling was prevented from
timely filing “in some extraordinary way” and “pass[es] with
reasonable diligence th[r]ough the period it seeks to have tolled.”
7 Asylum is unavailable for anyone who, “having been convicted by a final
judgment of a particularly serious crime, constitutes a danger to the community of
the United States,” and an aggravated felony is per se particularly serious as to
asylum. 8 U.S.C. §§ 1158(b)(2)(A)(ii), B(i). For applications for withholding of
removal, however, an aggravated felony is per se particularly serious only if the
applicant was sentenced to an aggregate prison term of at least five years. Id.
§ 1231(b)(3)(B). Garcia was not sentenced to such a term for his 2019 state
conviction. Accordingly, the agency was required to determine whether his
particular crime was particularly serious based on (1) “the nature of the
conviction,” (2) “the circumstances and underlying facts of the conviction,”
(3) “the type of sentence imposed,” and (4) “whether the type and circumstances
of the crime indicate that the alien will be a danger to the community.” Nethagani
v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008). When making this circumstance-
specific determination, the Attorney General has held that the agency may
consider an applicant’s mental health at the time of the offense and whether such
evidence affects the determination of future dangerousness. See Matter of B-Z-R-,
28 I &N. Dec. 563, 565-66 (A.G. 2022).

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Iavorski, 232 F.3d at 129, 134. As noted above, we review the BIA’s
decision not to grant equitable tolling for abuse of discretion, asking
whether there is a “reasonable basis” for its conclusion that the
respondent “failed to act with diligence” in pursuit of his claim
“during the entire period he seeks to toll.” Rashid, 533 F.3d at 132-33.
Garcia argues that his motion merited equitable tolling because
he had only recently become aware of the purported connection
between his Type II diabetes and his offense conduct. Specifically,
Garcia argues that the diabetes might have impacted his ability to
understand what he was doing at the time he improperly touched the
genitals of the seven-year-old victim in his sex-abuse case. Such a
mental health impairment, he contends, could have been considered
a mitigating circumstance that would have allowed the IJ to
determine that his sexual-abuse conviction was not, in fact, a
“particularly serious crime” that barred him from seeking
withholding of removal. But Garcia was concededly aware of both
(1) his diabetes diagnosis and (2) the fact that his diabetes might have
mental health consequences. These were the precise bases of his
motion to remand, which the BIA denied. In light of Garcia’s
awareness—before the conclusion of his removal proceedings—that
diabetes could impact his mental health, we cannot say that the BIA
abused its discretion in concluding that he had failed to “adequately
explain[] why he did not previously make allegations or present
medical evidence or a personal affidavit regarding his mental health
at the time of his 2017 offense.” Supp. Special App’x at 4.

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Last of all, we reject Garcia’s contention that the BIA did not
adequately explain its decision. We require a “minimum level of
analysis . . . if judicial review is to be meaningful.” Poradisova v.
Gonzales, 420 F.3d 70, 77 (2d Cir. 2005). Here, the BIA offered enough
explanation for us to understand why it ruled as it did. Nothing more
was required.
III. Conclusion
To summarize, we hold as follows:
1. We have limited jurisdiction under 8 U.S.C. § 1252(a)(2)(D)
to determine whether Garcia’s conviction under NYPL
§ 130.60(2) constitutes “sexual abuse of a minor,” making
this offense an “aggravated felony”; and we review this
question de novo.
2. We have limited jurisdiction under 8 U.S.C. § 1252(a)(2)(D)
to determine whether the BIA erred in declining to equitably
toll the 90-day deadline for Garcia to file his motion to
reopen; we review the BIA’s decision for abuse of discretion.
3. Garcia’s conviction for second-degree sexual abuse under
NYPL § 130.60(2) categorically constitutes “sexual abuse of
a minor” under 8 U.S.C. § 1101(a)(43)(A), and is therefore an
“aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). We
therefore dismiss his petition for review of his removal
order for lack of jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(C).
4. The BIA did not abuse its discretion in denying Garcia’s
untimely motion to reopen his removal proceedings,

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because it had a reasonable basis to conclude that he did not
merit equitable tolling of the deadline to file such a motion.
We therefore deny his petition for review of the BIA’s denial
of his motion to reopen.
For the foregoing reasons, we DISMISS the petition in No. 22-6421
and DENY the petition in No. 24-26.

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